The NJ Appellate Division Weighs in on Sentencing under N.J.S.A. 2C:40-26:

Rispoli & Borneo P.C.

DUI Attorneys Elizabeth NJ, Rispoli & BorneoThe State of New Jersey takes drinking and driving very seriously.  If convicted of driving under the influence, drivers in New Jersey face large fines, annual insurance surcharges, loss of driving privileges, and possible jail time.  In addition, the law provides for enhanced penalties if a defendant operates a motor vehicle in New Jersey, while his/her license is suspended because of a drunk driving or refusal conviction.  Not satisfied with the penalties spelled out in N.J.S.A. 39:4-50, the New Jersey legislature enacted N.J.S.A. 2c:40-26. If you are charged with such a crime, you would be wise to speak to a qualified drunk driving attorney in Elizabeth NJ, who can mitigate these enhanced penalties.

N.J.S.A. 2C:40-26 stipulates that it is a fourth degree felony, if you have been convicted of at least two drunk driving violations and you operate a motor vehicle while your license is suspended for the second or future drunk driving violation.  Defendants convicted of fourth degree crimes face the possibility of up to 18 months in jail. The courts, however, are predisposed against incarceration.  As a result, very few defendants found guilty of fourth degree crimes are sentenced to jail time.  N.J.S.A. 2C:40-26c provides for a minimum mandatory sentence of 180 days in jail.  This mandatory jail sentence has been the subject of much discussion and legal argument among criminal attorneys in Elizabeth NJ.

On February 4, 2015, the New Jersey Appellate Division rendered its decision in State v. John Harris, Docket No. A-3591-12T1.  In State v. Harris, the Appellate Division consolidated six (6) cases that addressed the issue of whether a defendant convicted under N.J.S.A. 2C:40-26 could avoid the mandatory 180 days in jail, or some part thereof, if sentenced to home detention under the Home Electronic Detention System (“HEDS”) or a labor program under the County Supplemental Labor Service Program (“CSLSP”).  All six cases involved situations where the Municipal Judge sought to reduce the amount of time the defendant was forced to spend in the County Jail, by allowing the defendant to serve at least a portion of his/her sentence in either the HEDS or CSLSP.  In short, the Appellate Division found that all of the sentences were illegal.  The Court opined that N.J.S.A. 2C:40-26c requires a minimum period of incarceration of 180 days.  The law provides no exception to this requirement.  Accordingly, any sentence that includes time in a non-custodial alternative program, in place of jail, is illegal.

Unless the New Jersey Supreme Court reverses this position, which is very unlikely, the law is now crystal clear.  If you violate N.J.S.A. 2C:40-26 you must be sentenced to 180 days in jail and no portion of that time can be served in a rehabilitation program or any other alternative program.  Short of going to trial and being acquitted, a defendant may only evade jail time, by being accepted into the Pre-Trial Intervention Program (“PTI”).  Assistant Prosecutors have the authority to approve a PTI application for a defendant charged with violation N.J.S.A. 2C:40-26.  However, the NJ drunk driving attorney must be prepared to explain why his/her client should get the benefit of such a significant break.

If you have been charged with violating N.J.S.A. 2C:40-26, you should not take it lightly.  If convicted, you will be sentenced to 180 days in the County Jail.  It is critical that you immediately seek the assistance of an experienced Criminal Attorney in Elizabeth NJ to explore any and all defenses and the possibility of a PTI plea. Contact the offices of Rispoli & Borneo, PC for a free consultation.