STATE OF NEW JERSEY VS. GERALD E. NUNNALLY A-6031-09T1

5-4-11 Where the defendant was arrested under CDL DUI statute, and then refused to submit to a breath test, he could not be prosecuted under the general refusal statute. In this appeal the appellate court addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. The Court held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4-50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. The Court also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDL refusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, the Court noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes.