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Prior DWI Still Makes a Subsequent Refusal a Second Offense

In State v Korpita, today, the App Div in an unpublished opinion, upheld the long standing precedent that a prior DWI enhances a subsequent Refusal. Mr. Korpita,  you may recall, was a municipal court judge.  While I believe that the refusal statute has nothing in it to suggest that a DWI should be counted as a prior refusal, I also do not believe that if cert was granted the court would reverse because (1) In Re Bergwall is direct precedent to the contrary (2) a footnote in Ciancaglini differentiates the legislative history of the refusal statute from the DWI statute specifically as it relates to this very issue (which the court anticipated would flow from Ciancaglini) (3) the AOC issued a memo after Ciancaglini cautioning that that case did not hold the inverse (i.e. facts here),and (4) this is a case involving a judge and the court will be hard pressed to rule too favorably in this particular case. 

Jeff Gold

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