Defendants Convicted of Driving While Suspended and/or Driving Without Insurance Can Avoid Jail Time!

Rispoli & Borneo P.C.

Elizabeth NJ Criminal Attorneys

Elizabeth NJ Criminal AttorneyExperienced criminal and municipal court attorneys in Elizabeth NJ are repeatedly asked the same question: If I plead guilty, will I be sent to jail?  The answer to that question became a bit easier to answer on May 14, 2015 when the Appellate Division decision in State v. Toussaint was approved for publication.

In State v. Toussaint, the defendant was involved in a motor vehicle in which two pedestrian were injured.  Defendant pled guilty to N.J.S.A. 2C:12-1.2 endangering an injured victim and was sentenced to two years probation.  Defendant also agreed to plead guilty to driving without insurance, N.J.S.A. 39:6B-2, and driving while her license was suspended, N.J.S.A. 39:3-40.  Because defendant was involved in an accident with personal injuries, the driving while suspended statute required that the sentencing Judge impose a period of “imprisonment.” N.J.S.A. 39:3-40(e).  After considering the aggravating and mitigating factors, the Judge sentenced defendant to ninety (90) days in jail, with credit for five (5) days served.  In doing so, the Judge ruled that the defendant could serve the eighty-five (85) days in “home confinement with electronic monitoring.” The State objected to the sentence arguing that the term of imprisonment must be served in the County Jail.

In deciding that Ms. Toussaint could serve her term of imprisonment at home on an electronic monitoring bracelet, the Appellate Division looked to the language found in both statutes.  The language found in N.J.S.A. 39:6B-2 (Driving Without Insurance) and N.J.S.A. 39:3-40(e) (Driving While Suspended) indicate that a defendant who is found guilty or pleads guilty shall be subject to a term of imprisonment.  However, both statutes are silent as to whether the term of imprisonment must be served in the county jail, or if this portion of the sentence may be served via an alternative option such as electronic monitoring or Correctional Supplemental Labor Services program (“SLAP”).   The lack of language requiring a defendant to serve the term of imprisonment in the county jail was dispositive in the eyes of the court.

The Court pointed out that in other sections of the N.J.S.A. 39:3-40 and in other portions of Title 39 the legislature included language which required “imprisonment in the county jail.”  In the statutes at issue here the “in the county jail” language was absent.  The Court concluded that this was not an oversight by the legislature and that if the legislature thought imprisonment in the county jail was mandatory it would have indicated as much in the language of the statute.  In coming to this conclusion, the Court stated “N.J.S.A. 39:3-40(e) and N.J.S.A. 39:6B-2 specify the length of the sentence for a violation but do not contain the ‘without eligibility for parole’ or ‘in the county jail’ language.”

A defendant charged with driving without insurance and/or driving while suspended faces significant penalties, including fines, loss of license and jail.  To avoid a term of imprisonment in the county jail, it is critical that a defendant is represented by an experienced Elizabeth NJ criminal and municipal court attorney such as those at Rispoli & Borneo, PC.  If you have been issued a traffic ticket for driving without insurance or driving while suspended, contact Rispoli & Borneo, PC today for a free initial consultation.