N.J.S.A. 2C:40-26 Mandates 180 Days in Jail!
It is no surprise, to experienced drunk driving attorneys in Elizabeth NJ, that the State of New Jersey takes drinking and driving very seriously. What some experienced criminal attorneys in Elizabeth NJ may not know, and certainly many New Jersey drivers do not know, is that multiple drunk driving convictions can result in criminal charges and mandatory jail time, if a defendant continues to drive.
On August 1, 2011, N.J.S.A. 2C:40-26 went into effect. It provides that it shall be a fourth degree crime 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 subsequent violation. In other words, if your license is suspended because you plead guilty or were convicted of a second or subsequent drunk driving offense, and you are caught driving, you have committed a fourth degree felony.
If convicted of a fourth degree felony, a defendant can be sentenced to up to eighteen (18) moths in jail. However, there is a presumption against incarceration. Accordingly, very few defendants convicted of a fourth degree felony are sentenced to jail time. Not so, if you are convicted of violating N.J.S.A. 2C:40-26.
Subsection C of the statute provides that “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. N.J.S.A. 2C:40-26(c). Per the statute the Judge has absolutely no discretion and must impose a minimum sentence of 180 days in jail. Moreover, the Judge is not allowed to impose a sentence of 90 days in jail and 90 days in an in-patient treatment program, as allowed under N.J.S.A. 39:4-50. In short, if convicted of violating N.J.S.A. 2C:40-26 you must serve 180 days in the County Jail.
The only way to avoid jail time, short of going to trial and being found not guilty, is to be accepted into the Pre-Trial Intervention Program (“PTI”). Initially, many Assistant Prosecutors would not allow a defendant charged with violating N.J.S.A. 2C:40-26 to apply for PTI. Recently, I was able to work with a Union County Assistant Prosecutor and get a client into the PTI program. During my negotiations, I learned that Assistant Prosecutors have the authority to approve a PTI application. However, an Elizabeth NJ drunk driving attorney representing a defendant charged with violating N.J.S.A. 2C:40-26 must be prepared to explain why his/her client should get the benefit of such a significant break and avoid the mandatory jail sentence. Fortunately, my client had no criminal record, a solid employment history, was married with two children, turned in his leased vehicle immediately following his arrest and was otherwise devastated by the possibility of going to jail for 180 days.
If you are charged with violation N.J.S.A. 2C:40-26, it is essential that you consult an experienced criminal attorney who can work with the local Assistant Prosecutor to arrange for acceptance into the PTI program. The only other option is a jail sentence of 180 days, which is devastating to most clients. If you are facing potential jail time from a drunk driving charge, contact Rispoli & Borneo, PC today.