Today in State v Zeikel, (published) the App Div held once again that a NY driving while impaired counts as a prior (see State v Lawrence App Div 1983) . This time the court had to address the amended NY statute but also came to the conclusion was still “similar” enough to our 4-50 to count. This panel went on to hold that changing sentencing laws was not an ex post facto law or a due process violation. These latter holdings are significant as they would lay the ground work for constitutional muster if the legislature changed the 4-50 statute (post Ciancaglini) to make a refusal count as a prior DWI. The Court also addressed the issue of a defendant’s certification, here that the reading was a .06, as alone not enough to sustain his burden of persuasion. .