No Night or Weekend Jail for NJSA 2C:40-26

On May 21, 2019, the New Jersey Supreme Court decided State v. Rene M. Rodriguez (A-80-17) (081046). The Court was asked to determine whether defendants convicted of the fourth-degree crime of operation of a motor vehicle during a period of suspension for DWI (NJSA 2C:40-26) could serve their jail sentences at night or on weekends.

NJSA 2C:40-26 states that:

“1. a. It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S. 39:3-40, if the actor’s license was suspended or revoked for a first violation of R.S. 39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and the actor had previously been convicted of violating R.S. 39:3-40 while under suspension for that first offense. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

b. It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S. 39:3-40, if the actor’s license was suspended or revoked for a second or subsequent violation of R.S. 39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a). A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

c. Notwithstanding the term of imprisonment provided under N.J.S. 2C:43-6 and the provisions of subsection e. of N.J.S. 2C:44-1, if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.”

In the Rodriguez case, the defendants involved in the appeal received 180 day jail sentences but were permitted to serve their sentences at night or on weekends.

However, the Supreme Court ruled that the Legislature did not intend for the jail term for this offense to be served intermittently (such as at night or on weekends) and that defendants must serve their sentences continuously.

Many attorneys would seek night or weekend jail sentences for their clients so that they may still work or take care of their families during their sentences. However, this new decision takes away this option for defendants.

If you are facing an accusation for driving while suspended due to a DWI or DUI conviction, you still may have other options available to you. Speak with a dedicated DWI/DUI attorney as soon as possible about your options.

Jason T. Komninos, Esq. offers free consultations and can be reached at 201-343-4622.