No weekends for 2C:40-26
N.J.S.A. 2C:40-26 makes operating a motor vehicle during your DWI or refusal license suspension a felony. It’s a 4th degree if a) you get caught driving suspended 2x during a 1st DWI suspension and /or b) 4th degree if 1x during the suspension of a 2nd 3rd etc DWI/refusal. It is confusing but basically this law makes it super serious to drive during active DWI suspension. You used to get 10 days jail for this but now it is 180 days mandatory consecutive county jail time.
The Appellate Division decided State v. Rodriguez, for the defendant – allowing weekend, intermittent jail but that was just reversed by the Supremes who said “must serve straight time in jail and may not be sentenced to periodic incarceration on weekends or otherwise.” In a consolidated opinion, the Appellate Division held that the sentencing court did not exceed its authority by imposing intermittent sentences. 454 N.J. Super. 214, 218 (App. Div. 2018).
The prohibition of parole (in the statute) necessarily dictates the prohibition of intermittent sentencing. The Court disagreed that the Legislature’s omission of the term “consecutive days” in N.J.S.A. 2C:40-26(c) evinces a legislative intent to permit intermittent sentences. The judgment of the Appellate Division is REVERSED and the Court remands for resentencing as to Colon and remands with leave to file motions to vacate their guilty pleas as to Lowers, Nolan, and Swiderski (the consolidated defendants in this case). ����������<���
