Nearly two years after the Supreme Court held that prior breath-test refusal convictions cannot be used to ramp up drunken driving penalties, it has agreed to decide if the opposite is true.

The justices, in State v. Frye, A-30-12, granted certification on whether prior DWI offenses can be counted to sentence a defendant as a repeat offender on a refusal conviction.

Appellate courts have answered yes in a string of decisions — including one decided Monday, three days after the grant of certification in Frye. And there are at least two similar petitions pending.

Roger Frye, an Audubon solo attorney, is handling his appeal pro se. He claims that when he pleaded guilty to a refusal charge in Haddon Heights in 2009, he did not realize he would be treated as a repeat offender based on two earlier DWI convictions.

The municipal court judge, Robert Zane, factored in the priors and deemed Frye a three-time offender, suspending his driver’s license for 10 years.

Frye tried to withdraw the plea but Zane said no, a decision that was affirmed in the Law Division and by an appeals court last May 16.

Frye’s arguments are based in part on the Supreme Court’s holding, in State v. Ciancaglini, 204 N.J. 597 (2011), that a defendant’s prior refusal conviction could not be considered a prior conviction for purposes of enhancing the sentence for a subsequent DWI conviction.

The Ciancaglini court reasoned that the DWI statute, N.J.S.A. 39:4-50, “contains no reference whatsoever” to the refusal statute and that there is thus no basis to believe that references to prior convictions are talking about anything other than prior DWI offenses.

Ciancaglini was decided after Frye’s guilty plea and shortly before his trial de novo in the Law Division.

Frye says he was “ecstatic” because in his view, Ciancaglini held that the refusal and DWI statutes were distinct and thus neither offense should be treated as a prior for the other.

Camden County Superior Court judge Ronald Freeman disagreed, however, finding Ciancaglini did not apply in the opposite direction.

Appellate Division Judges Philip Carchman, Linda Baxter and William Nugent affirmed in a per curiam opinion that did not even discuss the argument, which they called “without merit.”

The Supreme Court, in accepting the case for review, said it would also decide if Frye should have been allowed to withdraw his guilty plea.

In the case decided Monday, State v. Clapper, A-2338-11, the court discussed its rationale for refusing to apply Ciancaglini beyond its precise scenario.

Like Frye, Gregory Clapper pleaded guilty to refusal and had a 10-year license suspension imposed because of prior DWI convictions.

The Clapper court cited a 30-year old precedent, In re Bergwall, 85 N.J. 382 (1981), saying the issue there was “the precise question presented in this appeal” — whether a defendant with previous DWI convictions should be sentenced for refusal as a repeat offender.

Judge Francine Axelrad and Michael Haas noted that the refusal statute requires the longer license suspensions where the refusal was “in connection with” a second or third offense “under this section,” and that Bergwall said a refusal cannot be in connection with another refusal. The enhanced sentence therefore must be based on a prior DWI.

The Clapper panel pointed out that since Bergwall, courts have consistently interpreted the law that way and that a footnote in Ciancaglini suggested that Bergwall was still good law.

At least three other recent appeals courts have reached that result based on the same reasoning: State v. Korpita, A-417-11, decided Oct. 16, and State v. Hill, A-6003-10, and State v. Toft, A-0640-11, consolidated and decided June 26.

Petitions for certification have been filed in Hill and Toft, and Clapper’s lawyer Stephen Pascarella of Pascarella & Associates in Red Bank, says he too will seek review and has already contacted the court about it. He plans to ask that the cases be consolidated. “I have a lot at stake,” says Pascarella, who was also the attorney for Eileen Ciancaglini.

He says that continuing to follow Bergwall is not logical, since it was based on a since-repealed statute and, at the time, refusal charges were not heard in municipal court but by the Division of Motor Vehicles. “It was a completely different world,” he adds.

Pascarella says people incorrectly refer to cases like Clapper and Frye as a reverse of Ciancaglini but he sees them as raising the same issue: “Are refusal and drunk driving two distinct and separate statutes?” Ciancaglini held that they are and he hopes the Court accepted the Frye appeal so it can reaffirm that ruling.

If the court decides Bergwall is no longer good law, Jeff Gold of Cherry Hill, who represented the amicus State Bar Association in Ciancaglini, says he foresees a lot of petitions to set aside enhanced suspensions that were based on it.

Even if the court leaves Bergwall in place, a determination that Frye should have been allowed to withdraw his pleas could open the door to throwing out plea deals in other cases on charges that will then have to be tried.

Mary Pat Gallagher is a reporter for the New Jersey Law Journal, a Legal affiliate.