NOT FOR PUBLICATION

PER CURIAM.

Defendant George Korpita was convicted in the Sparta Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a chemical test (refusal), N.J.S.A. 39:4-50.4a, and failure to keep right. N.J.S.A. 39:4-82. Following a trial de novo in the Law Division, he was again found guilty.

Defendant had previously been convicted of DWI. He had no prior convictions for refusal. The trial judge sentenced defendant, as a second offender, to a two-year license revocation, forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and thirty days community service for the DWI; and, as a second offender, to a consecutive two-year license revocation for refusal.1 The judge merged the failure to keep right with the DWI and imposed appropriate fines and penalties.

Defendant appealed and we affirmed in an unpublished opinion. See State v. Korpita, No. A-3847-09 (App. Div. March 2, 2011). Thereafter, defendant moved before the Law Division to correct an illegal sentence, asserting he should have been sentenced as a first-time offender on the refusal charge.

On appeal, defendant raises the following contentions:

Defendant's arguments concerning the legality of his sentence are based upon the Supreme Court's decision in State v. Ciancaglini, 204 N.J. 597 (2011). In Ciancaglini, the defendant had previously been convicted of refusal under N.J.S.A. 39:4-50.4a. Id. at 600. He was subsequently convicted of DWI and the issue was whether, based upon the prior refusal conviction, he should be sentenced as a first or second offender under N.J.S.A. 39:4-50, which provides for enhanced penalties for repeat offenses. Ibid. The defendant relied upon our decision in State v. DiSomma, 262 N.J.Super. 375, 383 (App. Div. 1993), where we held that a conviction for refusal was not a prior violation under the DWI statute, N.J.S.A. 39:4-50.

The Court held that N.J.S.A. 39:4-50 precludes a prior refusal conviction from being used as a sentencing enhancement for a subsequent DWI conviction, explaining:

Thus, the Court ruled that a defendant, who had previously been convicted of refusal, could not be deemed a second offender for purposes of sentencing after committing a subsequent DWI. Rather, the defendant would have to be sentenced as a first offender on the DWI charge.

Like the DWI statute, the refusal statute provides for enhanced penalties for repeat convictions. Thus, N.J.S.A. 39:4-50.4a requires the municipal court to revoke the driving privileges of a person convicted of refusing to submit to a breath test "for not less than seven months or more than one year ... unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years."

Defendant asks that we apply Ciancaglini to his situation, which is the inverse of what occurred in that case. Here, defendant was sentenced as a second offender on his refusal conviction, even though his only prior conviction was for DWI. He argues that his prior DWI should not be used to treat him as a second offender for purposes of sentencing him on the refusal.

We reject this contention because Ciancaglini is not applicable to a case where, as here, a prior DWI is used to enhance the sentence on a refusal. Rather, this case is controlled by the Court's decision in In re Bergwall, 85 N.J. 382 (1981), rev'g on dissent, 173 N.J.Super. 431, 436 (App. Div. 1980) (Lora, P.J.A.D., dissenting).

In Bergwall, the defendant had been convicted of refusal after previously having been convicted of DWI. 173 N.J. Super. at 432. The issue presented, which is the precise question in this appeal, was whether he should be sentenced as a first or second offender for the refusal. The Court answered this question by adopting the dissenting Appellate Division opinion of Judge Lora. Bergwall, supra, 85 N.J. at 382. By adopting the dissent, the Court relied on the specific language of N.J.S.A. 39:4-50.4a:

Although the majority of the Appellate Division panel had adopted the argument now raised by defendant, that a prior DWI conviction may not enhance a subsequent refusal conviction, Judge Lora opined that the statutory language of the refusal statute was insensible under the majority's interpretation "since a refusal can not be `in connection with' another refusal. Rather, it can only be `in connection with' an arrest for drinking-driving and a request to take the breath test." Id. at 437. Judge Lora looked to legislative history, which indicated that this was, in fact, the Legislature's intent. Id. at 438-39.

While N.J.S.A. 39:4-50.4a has been amended several times since the Court's decision in 1981, it still contains language that is nearly identical to the language at issue in Bergwall. The penalty is now between seven months and one year "unless the refusal was in connection with a second offense under this section... or unless the refusal was in connection with a third or subsequent offense under this section." Despite the Legislature's amendment of the refusal statute's repeat offender provision after the Court interpreted it in Bergwall, the Legislature has left the pertinent language unchanged.2 The Legislature's inaction is indicative of its agreement with the Court's interpretation. See State v. Fielding, 290 N.J.Super. 191, 193-94 (App. Div. 1996) (noting that "legislative retention of judicially construed language signals an agreement with the language, as construed").

Since Bergwall, we have consistently interpreted N.J.S.A. 39:4-50.4a as requiring that a prior DWI conviction be deemed a prior violation for purposes of the enhanced refusal penalty. See, e.g., State v. Fielding, supra, 290 N.J. Super. at 193-94 (defendant previously convicted of DWI must receive an enhanced suspension for a subsequent refusal conviction); State v. Tekel, 281 N.J.Super. 502, 505 (App. Div. 1995) (same); State v. Wilhalme, 206 N.J.Super. 359, 362 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986) (amendments to the refusal statute since Bergwall demonstrated Legislature's intent to "leave the operation of the enhanced penalty provision unchanged" for refusal convictions where the defendant has previously been convicted of DWI).

Just as significantly, the Court's decision in Ciancaglini includes a footnote suggesting the Court still adheres to Bergwall's interpretation of N.J.S.A. 39:4-50.4a. We recognize that, in dicta in DiSomma, supra, 262 N.J. Super. at 381-82, a panel of this court questioned the continued validity of Bergwall. However, the Supreme Court discussed both DiSomma and Bergwall in Ciancaglini. Despite the Court's reliance on DiSomma's reasoning with respect to the DWI statute, the Court did not approve of the dicta addressing the refusal statute or question the continued validity of the holding in Bergwall. 204 N.J. at 609-10 n. 10.

Indeed, the Court specifically noted that "although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are part of a statutory complex designed to rid the highways of drunk drivers and to make our roads safer, each is a separate section (each referring to `this section') with a different, albeit related, purpose, and each has different elements." Id. at 606. On the one hand, N.J.S.A. 39:4-50 contains no reference to the refusal statute and the Court found that "[n]othing suggests that [references in the statute] to prior `violations' are meant to refer to anything beyond DWI convictions in violation of N.J.S.A. 39:4-50." Id. at 610.

On the other hand, however, the Court cited Judge Lora's analysis of N.J.S.A. 39:4-50.4 in Bergwall with approval. Id. at 610 n. 10. Judge Lora ruled that the phrase "in connection with a subsequent offense" in N.J.S.A. 39:4-50.4 had to refer to a prior DWI conviction and not to a prior refusal conviction, "because `a refusal cannot be `in connection with' another refusal. Rather, it can only be `in connection with' an arrest for drinking-driving and a request to take the breath test.'" Ibid. (citing In re Bergwall, supra, 173 N.J. Super. at 437). By accepting Judge Lora's analysis of N.J.S.A. 39:4-50.4, the Court held that a DWI conviction does qualify as a prior offense under the refusal statute. Ibid. Thus, the Court's holding in Ciancaglini concerning the DWI statute does not apply in this matter, which concerns the separate and distinct refusal statute.

Under the circumstances of this case, defendant's reliance upon Ciancaglini is misplaced. Because we are bound by the Court's decision in Bergwall, we affirm the decision of the Law Division.

Affirmed.