Second Offense of Driving During a DWI Suspension Under NJSA 2C:40-26? Jail Time with No Parole
New Jersey Supreme Court declares that a Guilty plea or Jury Verdict for a second offense of driving while suspended during a DWI period of suspension under NJSA 2C:40-26 required 180 county jail time with NO parole or ‘intermittent’ days to serve the jail time
Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
State v. Rodriguez, New Jersey Supreme Court May 21, 2019.
Ruling: Legal Statement
“We agree with the State that, because mandatory fixed periods of parole ineligibility apply to the most dangerous offenders, the Legislature chose this language — “fixed minimum sentence . . . during which the defendant shall not be eligible for parole” — to serve as a bar to release, even intermittently, during the period of parole ineligibility. See Carrigan, 428 N.J. Super. at 614 (“The strengthened penalty [of N.J.S.A. 2C:40-26] was legislatively prompted, at least in part, by reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license.”). Since N.J.S.A. 2C:40-26 includes such language, no discretion is afforded to the sentencing judge, and an intermittent sentence would violate the dictates of our Criminal Code.
Said another way, N.J.S.A. 2C:43-2(b) is its own list of mutually exclusive sentencing options. Accordingly, N.J.S.A. 2C:43-2(b)(7) is not a means by which to serve a sentence imposed under another provision; it is a sentencing option in and of itself. As a result, an intermittent sentence is not available where the Legislature has otherwise provided for the specific sentence that an offender is to serve, such as we have in N.J.S.A. 2C:40-26.
Therefore, construing N.J.S.A. 2C:40-26 in the context of Title 2C’s sentencing scheme, we conclude that the language of N.J.S.A. 2C:40-26(c) manifests a legislative intent to bar intermittent sentences under N.J.S.A. 2C:43-2(b)(7). The legislative choice of very specific wording regarding the custodial sentence to be imposed under N.J.S.A. 2C:40-26(c) does not permit resort to an alternative, intermittent sentence available as a general sentencing option under N.J.S.A. 2C:43-2(b)(7). N.J.S.A. 2C:40-26(c)’s wording mirrors the language utilized in other mandatory sentencing statutes for the most serious crimes. “
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