COMMERCIAL AND GENERAL DWI CHARGES ARE DISTINCT CHARGES

The story

“…On December 19, 2009, a group of school children flagged down a Glen Rock police car and reported that a Department of Public Works (DPW) plow truck4 had just hit two traffic signs and driven away. After following the truck to the DPW yard, a police    officer    observed    that    defendant,    the    driver,    had bloodshot watery eyes and slurred speech, smelled of alcohol, and could not walk or stand without assistance. According to the initial police report, defendant admitted that he had been drinking. When defendant repeatedly failed to blow properly into    the    Alcotest    machine,    after    being    read    the    warnings pertaining to CDL refusal, he was cited for refusal to take a breath test under the general refusal statute, N.J.S.A. 39:4- 50.4a.”

Defendant denies that he was intoxicated, contending that his    condition    was    attributable    to    several    serious    health problems that caused his blood sugar to become “dangerously low.”

Defendant was arrested and charged with violation of CDL DUI and refusal to submit to a breathalyzer test under the general refusal statute; and not the CDL refusal statute

Key take-aways

• CDL refusal is NOT a “lesser included offense” of the general refusal statute
• The State cannot amend a complaint after the running of the 90 day statute of limitations to charge a CDL refusal as a “lesser included offense” of the general refusal statute
• A commercial driver may be charged with commercial DUI and general DUI under the appropriate circumstances
• A commercial driver may be charged with commercial refusal and general refusal statutes, IF he/she is charged with CDL DUI AND General DUI; and informed of his/her rights regarding both refusal statutes
• The same conduct may expose a defendant to charges under more than one statute; for example, CDL DUI and General DUI Commentary

Commentary

Excellent, well-reasoned opinion. The State tried to play catch up, and erase the mistakes made by the arresting police officer by mixing and matching the charges he filed against defendant. The APP DIV refused to grant the State permission to amend the complaint after the 90 day statute of limitation expired on the refusal charge. The State argued the amended was permissible because CDL refusal was simply a “lesser included offense” of the General refusal statute.

By the way, the State was unable to meet its burden of proof in establishing defendant was guilty of CDL DUI, and did not appeal the dismissal of the CDL DUI charge.

Here’s the complete decision in State v Nunnally