Second or Subsequent DUI Violation and Precisely Defining Any Probationary Terms

State v. Chavarria:

Submitted by New Jersey DUI Lawyer, Jeffrey Hark.

Defendant, Chavarria, originally entered negotiated guilty pleas to two counts of driving with a license suspended for a second or subsequent DUI violation, DUI, and refusing to provide a breath sample. In accordance with the plea agreement, the trial court sentenced him to an aggregate 360-day custodial sentence with an aggregate 360-day mandatory period of parole ineligibility as a condition of probation, consisting of consecutive 180-day custodial terms with 180-day periods of parole ineligibility. The court further imposed a concurrent 180-day custodial sentence for the DUI conviction.

The issue the defendant argued on appeal was that the probationary portion of his sentences was illegal because the criminal code did not authorize mandatory periods of parole ineligibility as a condition of probation. Defendant further argued that the court failed to find the Yarbough factors for imposing consecutive sentences. According to State v. Abdullah, 184 N.J. 497, 514-15, (2005), “[w]hen a sentencing court properly evaluates the Yarbough factors regarding imposing either a consecutive or concurrent sentence, in light of the record, the court’s decision will not normally be disturbed on appeal. However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record.” To channel discretion and promote consistency in sentencing, the court in Yarbough outlined the following various sentencing provisions:

  1. there can be no free crimes in a system for which the punishment shall fit the crime;
  2. the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
  3. some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
    1. the crimes and their objectives were predominantly independent of each other;
    2. the crimes involved separate acts of violence or threats of violence;
    3. the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
    4. any of the crimes involved multiple victims;
    5. the convictions for which the sentences are to be imposed are numerous;
  4. there should be no double counting of aggravating factors;
  5. successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
  6. there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses. State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985).

The appellate court rejected defendant’s argument that the criminal code did not authorize sentences of probation conditioned on terms of imprisonment that included mandatory periods of parole ineligibility. They reasoned that the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes the split sentences imposed by the court on defendant’s convictions for violating N.J.S.A. 2C:40-26(b). However, the appellate court found that the criminal code expressly authorized a sentence of “imprisonment for a term fixed by the court not exceeding 364 days…as a condition of probation.” The appellate court ruled that defendant’s aggregate sentence and separate sentences fell within the permissible term of a split sentence. However, they vacated the trial court’s imposition of consecutive 180-day terms and concurrent probationary terms. The appellate court agreed with defendant that the trial court failed to expressly address the Yarbough factors to impose consecutive sentences and remanded the case for resentencing. Specifically, the court found that it could not determine the precise manner that the probationary terms were to run in.

The appellate court clarified that on remand, the court shall address and make findings under Yarbough and support its determination whether to impose concurrent or consecutive sentences for the mandatory terms of imprisonment for defendant’s convictions under N.J.S.A. 2C:40-26. When the court is making their determination concerning the imposition of probationary terms for defendant’s split sentences, the appellate court stated that the court must consider that it cannot impose sentences that are partially consecutive and partially concurrent; precisely define when any probationary terms imposed shall begin and end; and address and make findings concerning the imposition of sentences for multiple offenses under N.J.S.A. 2C:44-5(f).

At Hark & Hark, we represent clients in Superior Court for issues like the present case pertaining to whether a court expressly addressed the factors required for the imposition of consecutive sentences under Yarbough, and if the court incorrectly imposed sentences that included consecutive terms of imprisonment and concurrent terms of probation. We work hard to ensure that our clients receive exceptional representation in order to ensure the best and most just outcome result for them.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to the one illustrated in the case above, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.


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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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