February 4, 2015

A New Jersey appeals court has said in a published ruling that defendants who are convicted of or who plead guilty to a charge of driving while suspended following multiple driving while intoxicated offenses are not allowed to serve their jail sentences under home supervision or other alternative programs.

Instead, the three-judge Appellate Division panel said Feb. 4 in six consolidated cases, that the law is clear in stating that those defendants must serve a minimum of 180 days in jail with no opportunity for parole.

“A sentence to a noncustodial, ‘alternative program,’ instead of jail, is illegal,” said Appellate Division Judge Michael Haas. Judges Susan Reisner and Ellen Koblitz joined in the ruling, State v. Harris.

The ruling is an extension of an Appellate Division ruling from last August—State v. French—in which a panel comprising Koblitz and Judges Jose Fuentes and Carmen Messano said a 90-day jail sentence followed by a 90-day stint in an in-patient rehabilitation facility could not be substituted for the mandated 180-day jail sentence.

The Feb. 4 ruling involves six defendants—John Harris III, Sabrina King, Robert Kaczak, Kristin Mitchell, William Hangstorfer and Mandi Filer—who pleaded guilty to violating N.J.S.A. 2C:40-26b, driving while their licenses were suspended for multiple driving while intoxicated offenses.

A violation of the statute is a fourth-degree offense.

As required by the statute, judges sentenced the defendants to 180 days of incarceration, but said their sentences could be served either at home under the Home Electronic Detention System or at a County Supplemental Labor Services Program.

The Camden County Prosecutor’s Office appealed those sentences, saying they were illegal, and the Appellate Division agreed.

“This is a well-reasoned opinion,” Assistant Camden County Prosecutor Jason Magid said. “It restates what the appeals court already stated in French.”

“From a societal perspective, it highlights the legislature’s and the courts’ clear purpose and intent to protect the public from these recidivist offenders.”

Jeffrey Zucker, who represented King, labeled the ruling “disappointing.”

“These cases were distinguishable from French,” said Zucker, of Zucker Steinberg Sonstein & Wixted in Camden, N.J. “If you’re in home detention and escape or don’t report, you can be charged with a crime.

“This is another form of incarceration,” he said. “We had hoped that the Appellate Division would have seen it that way.”

 Jeffrey Evan Gold, who focuses on DWI cases but who was not involved in this case, said the ruling “is a conservative reading of the statute.”

“There is nothing in the statute that says judges can’t do this. The statute could say, ‘Don’t do this,’ but it doesn’t,” said Gold, who runs a firm in Cherry Hill, N.J. “Alternative programs have been the hallmarks of our system.

“I think the court is making a policy judgment,” Gold said. “I don’t think this is required by law.”

In the ruling, Haas cited a portion of the statute that says “the sentence shall include a fixed minimum sentence of not less than 180 days during which the defendant will not be eligible for parole.”

“In view of this clear language, we hold that a defendant convicted of N.J.S.A. 2C:40-26b must be sentenced to 180 days in jail without parole, with no sentencing alternative available,” Haas said. “The legislature’s purpose in requiring a period of ‘imprisonment’ for the offense, with no possibility of parole, is also clear.”

Alternatives to jail, such as home arrest or community service, do not protect the public like incarceration, Haas said.

“This public safety consideration is especially relevant in the case of a defendant who loses his or her driving privileges for DWI, but then continues to drive despite the license suspension,” Haas said.

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