1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. James J. Revie (A-31-13) (072600)

Argued September 24, 2014 -- Decided December 17, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court considers whether the “step-down” provision of N.J.S.A. 39:4-50(a)(3) can be 

applied to the benefit of a defendant for the second time, when an interval of more than ten years separates his 

previous driving while intoxicated (DWI) conviction from the conviction at issue.

Defendant was first convicted of DWI in 1981. He was charged with DWI again in 1982 and, 

unrepresented by counsel, pled guilty to that charge. Defendant’s third DWI conviction occurred in 1994. Because 

that conviction was more than ten years after defendant’s second DWI offense, he was sentenced as a second DWI 

offender, rather than a third DWI offender, pursuant to N.J.S.A. 39:4-50(a)(3)’s “step-down” provision. In 2011, 

defendant was granted post-conviction relief (PCR) with respect to his 1982 DWI conviction. The PCR court held 

that, pursuant to State v. Laurick, 120 N.J. 1, 16 (1990), defendant’s uncounseled 1982 DWI conviction could not be 

used to enhance a term of incarceration imposed for a subsequent DWI offense. 

Defendant was convicted of his fourth DWI offense in 2011. Although there was a sixteen-year gap 

between defendant’s third and fourth DWI offenses, the municipal court construed N.J.S.A. 39:4-50(a)(3) to afford a 

defendant only a single “step-down.” The municipal court therefore sentenced defendant as a “third or subsequent” 

DWI offender. The Law Division affirmed defendant’s conviction and sentence. Citing State v. Burroughs, 349 

N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), the Law Division held that defendant was not 

entitled to a second “step-down” under N.J.S.A. 39:4-50(a)(3). The Appellate Division affirmed defendant’s 

conviction and sentence, relying primarily on its decision in Burroughs. This Court granted defendant’s petition for 

certification, which challenged only his sentence and raised no issues regarding his conviction. 216 N.J. 14 (2013).

HELD: The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided 

that the defendant’s most recent and current DWI offenses are separated by more than ten years. In this case, 

defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a 

third DWI offender with respect to the applicable administrative penalties.

1. Appellate courts review a trial court’s construction of a statute de novo. In construing a statute, the Court’s role is 

to determine and effectuate the Legislature’s intent. Generally, the best indicator of that intent is the plain language 

chosen by the Legislature. The penalties imposed under New Jersey’s DWI statute, N.J.S.A. 39:4-50(a), increase 

with successive violations. For a second offense, the driver is subject to, among other things, no “more than 90 

days” imprisonment and loss of driving privileges for two years. N.J.S.A. 39:4-50(a)(2). A third or subsequent 

DWI offense subjects the defendant to, among other things, incarceration “for a term of not less than 180 days” and 

a ten-year loss of driving privileges. N.J.S.A. 39:4-50(a)(3). (pp. 8-9)

2. The “step-down” provision, first added to New Jersey’s DWI statutory scheme in 1977, was amended to its 

current form in 1981. It provides in pertinent part: “if the second offense occurs more than 10 years after the first 

offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense 

occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for 

sentencing purposes.” N.J.S.A. 39:4-50(a)(3). The Senate Judiciary Committee explained that the amended statute 

provided that “any second offense occurring more than 10 years after the first offense be treated for sentencing 

purposes as a first offense and that any third offense occurring more than 10 years after the second conviction be 

treated for sentencing purposes as a second offense.” S. Judiciary Comm. Statement to S. No. 1267, 199th Leg., 1st 

Sess. (June 9, 1980). (pp. 9-12)
2

3. The “step-down” language of N.J.S.A. 39:4-50(a)(3) has rarely been discussed in appellate decisions. In 

Burroughs, the defendant was convicted of DWI in 1982, was convicted of a second DWI in 1998, for which he was 

sentenced as a first offender under the “step-down” provision, and was convicted of a third DWI in 2000. 349 N.J. 

Super. at 226-28. Despite the brief interval between the defendant’s second and third DWI convictions, the 

municipal court sentenced him as a second offender, reasoning that his first DWI offense “had been ‘forgiven’ 

because of the eighteen-year hiatus between the first and second offenses.” Ibid. The Appellate Division held that 

defendant should be sentenced as a third DWI offender, explaining that “once having been granted . . . leniency [by 

way of the ‘step-down’ provision], the defendant has no vested right to continued ‘step-down’ status where he 

commits a subsequent drunk driving offense. The earlier offense is not ‘forgiven.’” Id. at 227. Thus, Burroughs

addressed the second application of a “step-down” to a defendant whose history included only one interval of more 

than ten years without an infraction. Id. at 226-27. Given the passage of only two years between his second and 

third convictions, the Burroughs defendant was clearly ineligible for a second “step-down” when he was convicted 

of a third DWI. Ibid. In State v. Ciancaglini, 204 N.J. 597, 612 (2011), recognizing that the question of multiple 

applications of the N.J.S.A. 39:4-50(a)(3) “step-down” provision is not squarely raised unless the defendant has two 

intervals of more than ten years between DWI convictions, and because the defendant’s record had only one such 

interval, the Court stated that it “need not decide in this case whether a person can twice take advantage of a ‘stepdown.’” Ibid. Thus, this Court has not previously addressed the issue presented by this case. (pp. 12-14)

4. The plain language of N.J.S.A. 39:4-50(a)(3) does not suggest that a defendant who meets the statute’s 

requirements twice may invoke the “step-down” only once. Instead, N.J.S.A. 39:4-50(a)(3) treats a defendant whose 

second offense occurs more than ten years after the first offense as a first DWI offender for sentencing purposes. 

Using the conjunctive term “and” followed by parallel language, the statute then deems a defendant whose third 

offense occurs more than ten years after the second offense to be a second DWI offender for sentencing purposes. 

N.J.S.A. 39:4-50(a)(3). Therefore, the Court holds that that the “step-down” provision can benefit a DWI offender 

more than once, if in each instance the defendant’s most recent and current DWI offenses are separated by more 

than ten years without an infraction. The legislative history supports the Court’s construction. The Senate Judiciary 

Committee Statement indicated the Legislature’s determination that “any” second offense and “any” third offense 

that followed the previous offense by more than ten years is subject to a “step-down.” S. Judiciary Comm. 

Statement to S. No. 1267. (pp. 15-16)

5. In Laurick, the Court held that the uncounseled DWI conviction of a defendant not properly advised of his right to 

counsel prior to pleading guilty could not be used to increase the period of incarceration imposed for a subsequent 

DWI offense. 120 N.J. at 4. State v. Hrycak, 184 N.J. 351, 362-63 (2005) confirmed, however, that an uncounseled 

DWI conviction may be used to enhance the administrative penalties that are part of a DWI sentence, such as the loss 

of driving privileges, fines, and the installation of an interlock device. N.J.S.A. 39:4-50(a); N.J.S.A. 39:4-50.17(b). 

Under the principles of Laurick and Hrycak, defendant’s uncounseled 1982 DWI conviction may not be used to 

enhance his term of incarceration for a subsequent DWI offense, but does constitute a prior conviction for purposes of 

determining his administrative penalties. Thus, regarding defendant’s 2011 DWI conviction, he is deemed to be a 

third offender entitled to a “step-down” under N.J.S.A. 39:4-50(a)(3) for purposes of incarceration. He should

therefore be sentenced to the term of incarceration prescribed for a second offense. For purposes of imposing 

administrative penalties, however, defendant should be sentenced as a third or subsequent offender. (pp. 16-20)

The judgment of the Appellate Division is REVERSED, and the case is REMANDED to the Law 

Division for resentencing in accordance with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and 

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-31 September Term 2013

072600

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES J. REVIE,

Defendant-Appellant.

Argued September 24, 2014 – Decided December 17, 2014

On certification to the Superior Court, 

Appellate Division.

Evan M. Levow argued the cause for appellant 

(Levow & Associates, attorneys).

Paula C. Jordao, Assistant Prosecutor, Special

Deputy Attorney General, argued the cause 

for respondent (Fredric M. Knapp, Morris County 

Prosecutor, attorney).

Jeffrey Evan Gold argued the cause for amicus

curiae New Jersey State Bar Association (Paris P. 

Eliades, President, attorney; Ralph J. Lamparello, 

of counsel).

JUSTICE PATTERSON delivered the opinion of the Court.

As part of the Legislature’s statutory scheme to combat

driving while intoxicated (DWI), N.J.S.A. 39:4-50 prescribes the 

penalties that may be imposed on a defendant for a first, 

second, and third or subsequent DWI offense. The statute 

includes a “step-down” provision, under which a second DWI 

offender is treated as a first DWI offender for sentencing 
2

purposes if more than ten years elapsed between his or her first 

and second offenses, and a third DWI offender is treated as a 

second DWI offender for sentencing purposes if more than ten 

years elapsed between his or her second and third DWI offenses. 

N.J.S.A. 39:4-50(a)(3). This appeal raises the issue of whether 

a repeat DWI offender may, on more than one occasion, invoke the 

N.J.S.A. 39:4-50(a)(3) “step-down” provision and thereby avoid 

the enhanced penalties prescribed by the statute.

Prior to the offense at issue in this case, defendant James 

Revie was convicted of three DWI offenses. One of those three 

convictions involved a guilty plea in which defendant was not 

represented by counsel. Pursuant to State v. Laurick, 120 N.J.

1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 

413 (1990), that conviction does not constitute a prior offense 

for purposes of increasing defendant’s custodial sentence, but 

is counted as a prior offense for purposes of imposing 

administrative penalties on defendant. 

Following his fourth offense in 2010, defendant invoked the 

“step-down” provision of N.J.S.A. 39:4-50(a)(3) for the second 

time and sought to be sentenced as a second DWI offender. The 

municipal court denied defendant’s request, reasoning that 

because defendant had received the benefit of the N.J.S.A. 39:4-

50(a)(3) “step-down” provision when he was sentenced for his 

third DWI offense in 1994, he was ineligible for a second “step-
3

down” in this matter. On de novo review, the Law Division 

reached the same conclusion. The Appellate Division affirmed 

defendant’s conviction and sentence.

We reverse the Appellate Division’s judgment. Based upon 

the plain language of N.J.S.A. 39:4-50(a)(3), we hold that a 

repeat DWI offender may invoke the statutory “step-down”

provision a second time, provided that more than ten years have 

passed with no infraction since the defendant’s most recent DWI 

offense. Applied to this case, N.J.S.A. 39:4-50(a)(3) requires 

that defendant be sentenced as a second DWI offender, rather 

than as a third DWI offender, with respect to any term of 

incarceration imposed, and as a third DWI offender with respect 

to the administrative penalties set forth in the statute. 

I.

This appeal arises from defendant’s fourth DWI conviction.

His first DWI offense occurred in Hillsdale and resulted in a 

conviction in 1981. In 1982, defendant was again charged with 

DWI, this time in Bogota. Unrepresented by counsel, defendant 

pled guilty to the charge. Defendant’s third conviction for DWI 

occurred in Montvale in 1994, more than ten years after his 

second DWI offense. Accordingly, he qualified for a “step-down” 

under N.J.S.A. 39:4-50(a)(3) and was, consequently, sentenced as 

a second DWI offender, rather than a third DWI offender.
4

In August 2011, defendant was granted post-conviction 

relief (PCR) with respect to his second DWI conviction in 1982. 

The PCR court held that as a consequence of Laurick, supra, 120

N.J. at 16, defendant’s 1982 conviction could not be used to 

enhance a term of incarceration imposed for a subsequent DWI 

offense.

Defendant’s fourth offense, which gave rise to this appeal, 

occurred on December 23, 2010. Defendant was arrested in 

Wharton by a police officer who observed his vehicle traveling 

at a high rate of speed and weaving across a double-yellow line. 

Defendant was charged with DWI, N.J.S.A. 39:4-50; failure to 

keep right, N.J.S.A. 39:4-82; failure to maintain lane, N.J.S.A.

39:4-88; reckless driving, N.J.S.A. 39:4-96; careless driving, 

N.J.S.A. 39:4-97; and speeding, N.J.S.A. 39:4-98. Following a 

trial conducted on September 23, 2011, the municipal court found 

defendant guilty of DWI, based on the observations of the 

arresting officer. The municipal court also convicted defendant 

of the remaining offenses, and merged the careless driving, 

speeding, failure to keep right, and failure to maintain lane 

offenses into the reckless driving offense.

At sentencing, the State argued that defendant should be 

sentenced as a fourth offender under the DWI statute. Defendant 

conceded that the current offense was his fourth. However, he 

asserted that by virtue of the grant of his PCR application, his 
5

second offense should be disregarded in setting a term of 

incarceration for any subsequent DWI offense, and that he was in 

effect a third offender. Defendant further contended that in 

light of the sixteen-year gap between defendant’s third and 

fourth offenses, the “step-down” provision of N.J.S.A. 39:4-

50(a)(3) governed, and that he should, therefore, be sentenced 

as a second offender.

The municipal court disagreed. It construed N.J.S.A. 39:4-

50(a)(3) to afford a defendant only a single “step-down.” The 

municipal court sentenced defendant to 180 days in the county 

correctional facility, a ten-year suspension of his driving 

privileges and registration, and a fine of $1000, N.J.S.A. 39:4-

50(a)(3), as well as $33 in court costs, N.J.S.A. 22A:3-4, $6 in 

miscellaneous assessments, N.J.S.A. 39:5-41(d)-(h), a $50 

Victims of Crimes Compensation Board assessment, N.J.S.A. 2C:43-

3.1(a)(2)(a), a $75 Safe Neighborhoods Services Fund assessment,

N.J.S.A. 2C:43-3.2(a)(1), a $100 DWI surcharge, N.J.S.A. 39:4-

50(i), and a $100 Drunk Driving Enforcement Fund assessment,

N.J.S.A. 39:4-50.8. Defendant’s incarceration was stayed 

pending appeal.

On de novo review, a Law Division judge affirmed 

defendant’s conviction and sentence. The Law Division judge 

agreed with defendant that, under Laurick, defendant’s second 

DWI should not have been considered when he was sentenced in 
6

this matter. However, citing State v. Burroughs, 349 N.J. 

Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), the 

Law Division concurred with the municipal court that defendant 

was not entitled to a second application of the N.J.S.A. 39:4-

50(a)(3) “step-down” provision. It imposed a sentence 

consistent with the sentence determined by the municipal court.

The Appellate Division affirmed defendant’s conviction and 

sentence, relying primarily on its decision in Burroughs, supra,

349 N.J. Super. at 225-28. 

We granted defendant’s petition for certification, which 

challenged only his sentence and raised no issues regarding his 

conviction. 216 N.J. 14 (2013).

II.

Defendant urges the Court to apply the N.J.S.A. 39:4-

50(a)(3) “step-down” provision, and argues that he should, 

therefore, be sentenced as if the DWI conviction at issue 

constituted his second offense. He contends that N.J.S.A. 39:4-

50(a)(3) authorizes a defendant whose DWI conviction follows his 

previous DWI conviction by more than ten years to obtain the 

benefit of more than one application of the statute’s “stepdown” provision. Defendant contends that the statutory language 

is clear, but argues that if the Court finds an ambiguity in the 

text, it should resolve that ambiguity in his favor.
7

The State urges the Court to affirm the Appellate Division 

determination. It argues that the Legislature did not intend 

N.J.S.A. 39:4-50(a)(3) to grant a pardon in perpetuity to DWI 

offenders. The State relies on the Appellate Division decision 

in Burroughs, noting that the Legislature did not amend the 

“step-down” language in N.J.S.A. 39:4-50(a)(3) following 

Burroughs, and arguing that this failure to amend the statute 

indicates the Legislature’s agreement with the Appellate 

Division decision in that case. 

Amicus curiae New Jersey State Bar Association (NJSBA) 

asserts that Burroughs does not govern defendant’s sentence 

because the DWI offender in Burroughs committed his third 

offense only two years after his second offense. It notes that,

in Burroughs, the Appellate Division did not address the 

availability of a second “step-down” to a defendant who twice 

meets the requirements of N.J.S.A. 39:4-50(a)(3). NJSBA 

contends that because defendant’s second DWI conviction cannot 

be counted as a prior DWI conviction solely for penal sentencing 

purposes pursuant to Laurick, and because defendant is entitled 

to the N.J.S.A. 39:4-50(a)(3) “step-down,” he should be 

sentenced to a term of imprisonment as a second offender.

III.

A.
8

Appellate courts review a trial court’s construction of a 

statute de novo. State v. J.D., 211 N.J. 344, 354 (2012); State 

v. Gandhi, 201 N.J. 161, 176 (2010). In construing a statute, 

our role “‘is to determine and effectuate the Legislature’s 

intent.’” State v. Friedman, 209 N.J. 102, 117 (2012) (quoting 

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). 

Generally, “‘the best indicator of that intent is the plain 

language chosen by the Legislature.’” State v. Frye, 217 N.J.

566, 575 (2014) (quoting Gandhi, supra, 201 N.J. at 176). 

Statutory text “should be given its ordinary meaning and be 

construed in a common-sense manner.” State in Interest of K.O., 

217 N.J. 83, 91 (2014) (citing N.J. Dep’t of Envtl. Prot. v. 

Huber, 213 N.J. 338, 365 (2013); N.E.R.I. Corp. v. N.J. Highway 

Auth., 147 N.J. 223, 236 (1996)). “Our role is not to ‘rewrite 

a plainly-written enactment of the Legislature []or [to] presume 

that the Legislature intended something other than that 

expressed by way of the plain language.’” Id. at 91-92 (quoting 

DiProspero v. Penn, 183 N.J. 477, 492 (2005)). 

New Jersey’s DWI statute prohibits the operation of a motor 

vehicle “while under the influence of intoxicating liquor,” or 

“with a blood alcohol concentration [(BAC)] of 0.08% or more by 

weight of alcohol in the defendant’s blood.” N.J.S.A. 39:4-

50(a). The penalties imposed under the statute increase with 

successive violations. For a second offense, the driver is 
9

subject to enhanced penalties, including a fine of between $500 

and $1000, “imprisonment for a term of not less than 48 

consecutive hours . . . nor more than 90 days,” thirty days of

community service, a loss of his or her driver’s license for two 

years, and the mandatory installation of an ignition interlock 

device. N.J.S.A. 39:4-50(a)(2); N.J.S.A. 39:4-50.17(b). A 

third or subsequent DWI offense subjects the defendant to a fine 

of $1000, incarceration “for a term of not less than 180 days in 

a county jail or workhouse, except that the court may lower such 

term for each day, not exceeding 90 days, served participating 

in a qualifying drug or alcohol inpatient rehabilitation 

program,” a ten-year loss of driving privileges, and the 

installation of an ignition interlock device. N.J.S.A. 39:4-

50(a)(3); N.J.S.A. 39:4-50.17(b). Thus, a defendant’s record of 

prior DWI offenses has a pivotal impact on his or her exposure 

to a term of incarceration, the loss of his or her driver’s 

license, and other penalties.

The N.J.S.A. 39:4-50(a)(3) “step-down” provision was not 

part of New Jersey’s original DWI statutory scheme. In its 

original form, N.J.S.A. 39:4-50 provided for only two grades of 

punishment for drunk driving, one for first offenders and the 

other for all subsequent offenders. See L. 1952, c. 286, § 1 

(codified, as amended, N.J.S.A. 39:4-50). 
10

In 1977, the statute was amended to add a third grade of 

punishment for third or subsequent DWI offenses. L. 1977, c.

29, § 1 (codified, as amended, N.J.S.A. 39:4-50(a)). At that 

time, the Legislature added the first version of the N.J.S.A.

39:4-50 “step-down” provision, which read: “if the second 

offense occurs 15 or more years after the first conviction the 

court shall treat the conviction as a first offense, and if a 

third or subsequent offense occurs 10 or more years after the 

first conviction, the court shall treat the conviction as a 

second offense.” Ibid. Thus, under the first version of the 

“step-down” provision, the crucial issue was the interval 

between defendant’s first offense and his current offense. See

ibid.

Several years later, the Senate Judiciary Committee

recognized the “undesirable and probably unintentional results” 

of that statutory language. S. Judiciary Comm. Statement to S. 

No. 1267, 199th Leg., 1st Sess. (June 9, 1980). It observed 

that, under the statute then in effect, a defendant convicted of 

a second DWI offense fourteen years after his first drunk 

driving conviction and a defendant convicted of a third DWI 

offense eleven years after his first conviction could “both be 

sentenced as second offenders.” Ibid. The Senate Judiciary 

Committee further noted that pursuant to the original “stepdown” language, the enhanced penalties for third and subsequent 
11

offenders would, in effect, be reserved for defendants convicted 

of DWI three or more times within a period of ten years –- a 

result contrary to the Legislature’s intent. Ibid. 

Accordingly, the Legislature amended the statutory language 

in 1981 to its current form:

A person who has been convicted of a previous 

violation of this section need not be charged 

as a second or subsequent offender in the 

complaint made against him in order to render 

him liable to the punishment imposed by this 

section on a second or subsequent offender, 

but if the second offense occurs more than 10 

years after the first offense, the court shall 

treat the second conviction as a first offense 

for sentencing purposes and if a third offense 

occurs more than 10 years after the second 

offense, the court shall treat the third 

conviction as a second offense for sentencing 

purposes.

[N.J.S.A. 39:4-50(a)(3); see also L. 1981, c.

47, § 1 (codified as N.J.S.A. 39:4-50(a)), 

amended by L. 1983, c. 444, § 1 (re-codifying 

as N.J.S.A. 39:4-50(a)(3)).]

As the Senate Judiciary Committee noted, the amended 

statute provided that “any second offense occurring more than 10 

years after the first offense be treated for sentencing purposes 

as a first offense and that any third offense occurring more 

than 10 years after the second conviction be treated for 
12

sentencing purposes as a second offense.” S. Judiciary Comm.

Statement to S. No. 1267, supra.1

The “step-down” language of N.J.S.A. 39:4-50(a)(3) has 

rarely been discussed in appellate decisions. In Burroughs, 

supra, 349 N.J. Super. at 226-28, the Appellate Division

considered the sentence to be imposed on a repeat offender first 

convicted of DWI in 1982. When the defendant in Burroughs was

convicted of his second offense in 1998, the sentencing court 

applied the “step-down” provision of N.J.S.A. 39:4-50(a)(3) 

because of the sixteen-year interval between the defendant’s 

first and second convictions; as a result, he was sentenced as a 

first offender for his second offense. Id. at 226. The 

defendant committed a third offense only two years later. Ibid. 

Despite that brief interval between the defendant’s second and 

third DWI convictions, the municipal court sentenced the 

defendant as a second offender, reasoning that his first offense 

“had been ‘forgiven’ because of the eighteen-year hiatus between 

the first and second offenses.” Ibid. 

Interpreting the statutory language, the Appellate Division 

affirmed the Law Division’s reversal of the municipal court’s 

sentence, explaining that

 

1 N.J.S.A. 39:4-50 has been amended several times following the 

1981 revision to the “step-down” provision, but none of the 

amendments have materially affected that provision. 
13

once having been granted . . . leniency [by 

way of the “step-down” provision], the 

defendant has no vested right to continued 

“step-down” status where he commits a 

subsequent drunk driving offense. The earlier 

offense is not “forgiven.” Having been granted 

leniency by virtue of the infraction-free 

lapse of time between the two earlier 

violations, the offender has received his 

reward for good conduct and is entitled to no 

further consideration.

[Id. at 227.]

Thus, in Burroughs, the Appellate Division panel addressed 

a distinct set of circumstances: the second application of a 

“step-down” to a defendant whose history included only one

interval of more than ten years without an infraction, not two 

such intervals as in the present case. Id. at 226-27. Given

the passage of only two years between his second and third 

convictions, the defendant in Burroughs was clearly ineligible 

for a second “step-down” when he was convicted of DWI for the 

third time in 2000. Ibid. Accordingly, the panel affirmed that 

the defendant be sentenced as a third DWI offender. Ibid.

In State v. Ciancaglini, 204 N.J. 597 (2011), this Court

briefly addressed the Appellate Division’s application of the 

N.J.S.A. 39:4-50(a)(3) “step-down” in Burroughs. The Court held 

that the defendant’s prior conviction for refusing to take a 

Breathalyzer test, in violation of N.J.S.A. 39:4-50.4a, did not 

serve as the functional equivalent of a prior DWI conviction for 

purposes of enhancing the punishment for her later DWI offense. 
14

Id. at 612. It distinguished Burroughs, on which the State 

relied, noting that “[b]ecause the Burroughs defendant had a 

second conviction within ten years of his third conviction, he 

was not entitled to any ‘step-down,’ regardless of how much time 

passed between his first and second convictions.” Ibid. The 

Court added:

That said, we need not decide in this 

case whether a person can twice take advantage 

of a “step-down.” Defendant’s refusal 

conviction cannot be considered as a prior DWI 

violation for enhancement purposes, and thus 

she is not precluded from the benefit of the 

“step-down” under N.J.S.A. 39:4-50 for a prior 

DWI, because her first DWI conviction was more 

than ten years prior to her second, the 2008 

DWI conviction.

[Ibid.]

The Court thus recognized in Ciancaglini that the question 

of multiple applications of the N.J.S.A. 39:4-50(a)(3) “stepdown” is not squarely raised unless the defendant’s record of 

DWI offenses includes two infraction-free intervals of more than 

ten years between convictions. Ibid. Like that of the DWI 

offender in Burroughs, the Ciancaglini defendant’s record of 

infractions featured only one such interval. Ibid. Thus, this 

Court has not previously addressed the issue presented by this 

case: whether the “step-down” provision should be applied to 

the benefit of a defendant for the second time, when an interval 
15

of more than ten years separates his previous DWI conviction 

from the conviction at issue. 

The plain language of N.J.S.A. 39:4-50(a)(3) reveals the 

Legislature’s intent. There is no suggestion that a defendant 

who meets the statute’s requirements twice may invoke the “stepdown” only once. Instead, N.J.S.A. 39:4-50(a)(3) treats a 

defendant whose second offense occurs more than ten years after 

the first offense as a first DWI offender for sentencing 

purposes. Using the conjunctive term “and” followed by parallel 

language, the statute then deems a defendant whose third offense 

occurs more than ten years after the second offense to be a 

second DWI offender for sentencing purposes. N.J.S.A. 39:4-

50(a)(3).2 Guided by the plain language of N.J.S.A. 39:4-

50(a)(3), we hold that that the “step-down” provision can 

benefit a DWI offender more than once, if in each instance the 

defendant’s most recent and current DWI offenses are separated 

by more than ten years without an infraction. 

 

2 We are unpersuaded by the State’s argument that the absence of 

a comma after the word “purposes” in the phrase, “the court 

shall treat the second conviction as a first offense for 

sentencing purposes and if a third offense occurs more than 10 

years after the second offense,” denotes an intent to authorize 

only one “step-down,” either on the second or third DWI 

conviction. See N.J.S.A. 39:4-50(a)(3). The Legislature’s 

choice not to use a comma in that phrase does not alter the 

sentence’s clear intent to permit two applications of the “stepdown” to a defendant who twice meets its timing requirements. 
16

The legislative history supports this construction of the 

statute. The Senate Judiciary Committee Statement indicated the 

Legislature’s determination that “any” second offense and “any” 

third offense that followed the previous offense by more than 

ten years is subject to a “step-down.” S. Judiciary Comm.

Statement to S. No. 1267, supra. With this expansive, 

unqualified language, the Senate Judiciary Committee Statement 

confirms that the “step-down” provision governs the sentence 

imposed for any offense that meets its timing requirements.

In short, N.J.S.A. 39:4-50(a)(3) may apply for a second 

time to the benefit of a repeat offender whose current and 

previous DWI convictions are separated by periods of ten years 

or more without an infraction. Defendant is entitled to a 

second “step-down” in his sentence for the offense at issue 

here.

B.

By virtue of his DWI history, defendant’s sentence is also 

affected by this Court’s decision in Laurick, supra, 120 N.J. 1. 

In Laurick, the Court held that the DWI conviction of a 

defendant, who was not properly advised of his right to counsel 

prior to pleading guilty, could not be used to increase the 

period of incarceration imposed in a subsequent sentence for a 

DWI offense. 120 N.J. at 4. Accordingly, under Laurick, 

defendant’s second DWI conviction in 1982 cannot be used to 
17

enhance his punishment for any subsequent offense insofar as 

that punishment involves a “loss of liberty.” Ibid. 

The Court observed, however, that apart from an “increase 

[in] a defendant’s loss of liberty, there is no constitutional 

impediment to the use of the prior uncounseled DWI conviction to 

establish repeat-offender status under DWI laws.” Ibid. That

principle was underscored in State v. Hrycak, 184 N.J. 351, 362-

63 (2005), in which the Court confirmed that an uncounseled DWI 

conviction may be used to enhance the administrative penalties 

that are part of a defendant’s sentence under N.J.S.A. 39:4-

50(a). In Hrycak, the Court noted that “a third-time offender 

with one prior uncounseled DWI conviction is still subject to 

administrative penalties applicable to a third-time offender 

under N.J.S.A. 39:4-50(a)(3).” Id. at 365. Thus, as defendant 

agrees, under Laurick and Hrycak, a prior DWI conviction in an 

uncounseled guilty plea may not enhance a sentence to a term of 

incarceration, but is relevant in imposing the administrative 

penalties prescribed by the DWI statute. 

The decision of the Appellate Division in State v. Conroy, 

397 N.J. Super. 324, 326-29 (App. Div. 2007), certif. denied, 

195 N.J. 420 (2008), illustrates the impact of Laurick and 

Hrycak in a case involving a “step-down” pursuant to N.J.S.A.

39:4-50(a)(3). In Conroy, the defendant was not represented by 

counsel when he pled guilty to his first DWI offense in 1982. 
18

Id. at 326. He was convicted of DWI on three subsequent 

occasions: in 1990, 1995 and 2006. Ibid. The defendant argued 

that because Laurick barred his 1982 conviction from enhancing 

his sentence for his later DWI offenses, he was in effect a 

third offender -- not a fourth offender -- when he was sentenced 

for his 2006 conviction. Id. at 326-27. 

The Appellate Division agreed. It observed that “when 

[defendant] appeared before the Law Division he stood as a third 

offender, not a fourth offender, for the limited purpose of the 

trial court imposing a jail sentence under the enhanced 

sentencing provision of the DWI statute.” Id. at 330.3 It held 

that if the defendant was not afforded the benefit of the “stepdown” provision of N.J.S.A. 39:4-50(a)(3), his first conviction, 

derived from an uncounseled plea, would effectively trigger “an 

enhanced sentence, contrary to Hrycak and Laurick.” Id. at 334. 

The defendant in Conroy was accordingly sentenced to a term of 

incarceration as a second offender under N.J.S.A. 39:4-50(a)(2), 

rather than as a third or subsequent offender pursuant to 

N.J.S.A. 39:4-50(a)(3). Ibid. 

Applied to defendant’s history of DWI offenses in this 

case, the “step-down” provision of N.J.S.A. 39:4-50(a)(3), in 

 

3 The Conroy panel distinguished Burroughs, in which none of the 

defendant’s prior convictions involved an uncounseled guilty 

plea, and which, accordingly, did not implicate Laurick. Id. at 

332. 
19

conjunction with the principles of Laurick and Hrycak, compel a 

result similar to that reached in Conroy. Defendant’s first DWI 

conviction in 1981, and his third DWI conviction in 1994, 

constitute prior DWI offenses in the determination of all 

aspects of defendant’s sentence in this case. As a consequence

of defendant’s uncounseled guilty plea in 1982, that conviction

may not be used for the purpose of enhancing defendant’s term of 

incarceration when he is sentenced in the present case. See

Laurick, supra, 120 N.J. at 16. However, defendant’s 1982 DWI 

conviction constitutes a prior conviction for purposes of 

determining the administrative penalties as prescribed by 

N.J.S.A. 39:4-50(a) -- the revocation of defendant’s driver’s 

license,4 the imposition of fines, and the installation of an 

interlock device pursuant to N.J.S.A. 39:4-50.17. Hrycak,

supra, 184 N.J. at 362; Laurick, supra, 120 N.J. at 16. Thus, 

defendant’s record includes two prior DWI convictions that are 

relevant to the sentencing court’s imposition of a term of 

incarceration, and three prior DWI convictions that are relevant 

to the imposition of administrative penalties. 

 

4 The revocation of a DWI offender’s driver’s license constitutes 

an administrative penalty imposed by N.J.S.A. 39:4-50(a). See

Hrycak, supra, 184 N.J. at 355, 364-65; State v. Hamm, 121 N.J.

109, 123 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 

113 L. Ed. 2d 466 (1991). 
20

Accordingly, with respect to a term of incarceration,

defendant is deemed to be a third offender entitled to a “stepdown” under N.J.S.A. 39:4-50(a)(3). Thus, he should be 

sentenced to the term of incarceration prescribed for a second 

offense: “imprisonment for a term of not less than 48 

consecutive hours, which shall not be suspended or served on 

probation, nor more than 90 days[.]” N.J.S.A. 39:4-50(a)(2). 

In contrast, all three of defendant’s prior convictions -- his 

1981 conviction, 1982 conviction and 1994 conviction -- count as 

prior convictions for purposes of calculating his administrative 

penalties. See Hrycak, supra, 184 N.J. 362-63; Laurick, supra,

120 N.J. at 16; see also Hamm, supra, 121 N.J. at 123. Thus, 

for purposes of imposing administrative penalties as part of 

defendant’s sentence, such as the loss of his driver’s license, 

the imposition of a fine, and the installation of an interlock 

device on his vehicle under N.J.S.A. 39:4-50.17(b), defendant 

should be sentenced as a third or subsequent offender in 

accordance with N.J.S.A. 39:4-50(a)(3). 

IV.

The judgment of the Appellate Division is reversed, and the 

matter is remanded to the Law Division for resentencing in 

accordance with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZVINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in 

JUSTICE PATTERSON’s opinion.
1

SUPREME COURT OF NEW JERSEY

NO. A-31 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES J. REVIE,

Defendant-Appellant.

DECIDED December 17, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7