2019 Amendment to the Breathalyzer Refusal Statute Does Not Apply Retroactively

State v. Scudieri, ___ N.J. Super. ___ (App. Div. 2021). Whether statutory amendments apply retroactively or prospectively is a recurring issue in the courts. This opinion by Judge Natali addresses whether an amendment to the breathalyzer refusal statute, N.J.S.A. 39:4-50.4a, which made less stringent the penalty for refusal, was to apply retroactively. Affirming the Municipal Court and the Law Division, and employing the de novo standard of review, the Appellate Division held that the amendment was not retroactive.

These were the facts. Defendant was arrested for driving while intoxicated on August 30, 2019. He refused the breath test and pled guilty to a refusal charge. On January 22, 2020, the Municipal Court “suspended defendant’s driving privileges for seven months, consistent with mandatory penalties associated with the refusal statute in effect at the time of his arrest. The court also required him to pay all applicable fines and penalties, complete twelve hours of rehabilitation at the Intoxicated Driver Resource Center, and install an ignition interlock device for six months after restoration of his driving privileges.” After a trial de novo in the Law Division, that court affirmed the conviction and the sentence.

Meanwhile, on August 23, 2019, Governor Murphy signed legislation that, as relevant here, altered the penalty for refusal. As Judge Natali stated, “the Legislature determined that the installation of ignition interlock devices was a more effective way to prevent drunk driving than license suspension. The amended statute therefore struck the seven-month license suspension provision and required instead all defendants convicted of refusal to install an ignition interlock device.” The new law provided, however, that it “shall take effect on the first day of the fourth month after enactment and shall apply to any offense occurring on or after that date.”

Defendant argued that the amendment, with its lesser penalty, should have applied to his case. Judge Natali did not agree. “When it amended N.J.S.A. 39:4-50.4a, the Legislature clearly stated that the new legislation would become effective over four months after it was signed into law and apply only to the class of defendants who committed offenses on or after December 1, 2019. That decision by the Legislature represented its unequivocal intent to apply the new statute prospectively, and therefore the common law exceptions to the presumption of prospective application do not apply.”

Citing Supreme Court precedents, Judge Natali identified three circumstances where retroactive application of a statute is appropriate. Those are “(1) when the Legislature expresses its intent that the law apply retroactively, either expressly or implicitly; (2) when an amendment is curative; or (3) when the expectations of the parties so warrant.” None of those circumstances existed here.

The Legislature expressly barred any retroactivity argument by stating that the statutory amendment would not become effective until after the date of defendant’s offense and would apply only to offenses committed after December 1, 2019. And, Judge Natali said, “the Legislature amended the refusal statute to effectuate its determination that interlock devices served as a greater deterrent to drunk driving than a period of license forfeiture.” That was not a curative provision, since “[a] curative law is one which amends a previous law which is unclear, or which does not effectuate the actual intent of the Legislature in adopting the original act.” The amendment here did not become curative “merely because the Legislature has altered a statute so that it better serves public policy objectives.”

The expectations of the parties did not save the day for defendant either. Judge Natali said that defendant could not “have expected the new ignition interlock penalty to apply to him when he committed the offense only one week after the Governor signed the amended legislation into law on August 23, 2019. The bill included the plain statement that the law would take effect four months later, in December 2019. L. 2019, c. 248, § 7. Thus, the expectations of the parties do not warrant retroactive application of the new refusal statute.”

Defendant made other arguments, including one based on the assertion that failure to apply the lesser penalty contained in the amendment produced an “unjust result.” Those arguments also failed. The Appellate Division found “nothing inequitable, or unfair, about an informed legislative decision to punish a defendant consistent with the penalties in effect when he or she refuses to consent to testing.”