New Jersey Supreme Court Opposes “Intermittent Sentencing”

In State v. Rene M. Rodriguez, the Supreme Court of New Jersey held that repeat offenders charged with operating a motor vehicle after their licenses have been suspended for driving while intoxicated (DWI) can’t serve their sentences intermittently on nights or weekends pursuant to N.J.S.A. 2C:43-2(b)(7), which allows a court to impose a sentence that is served “at night or on weekends with liberty to work or to participate in training or educational programs,” unless otherwise provided.

Intermittent Sentencing

Facts of State v. Rene M. Rodriguez

The five defendants — Rene Rodriguez, Elizabeth Colon, Eric Lowers, Stephen Nolan, and Courtney Swiderski — were convicted of fourth-degree operating a motor vehicle during a period of license suspension for driving while intoxicated (DWI) under N.J.S.A. 2C:40-26. The statute makes it a crime of the fourth degree to either: (a) operate a motor vehicle, for the second time, during a period of license suspension for a DWI; or (b) operate a motor vehicle with a suspended license for a second or subsequent DWI. N.J.S.A. 2C:40-26 specifically provides that an individual convicted under either of those subsections shall be sentenced to a “fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.”

The defendants appeared before the same judge and were sentenced to 180 days in the county jail, to be served intermittently. N.J.S.A. 2C:43-2(b)(7)’s general sentencing option allows a court to impose a sentence that is served “at night or on weekends with liberty to work or to participate in training or educational programs,” unless otherwise provided.

Rodriguez and Colon were ordered to serve their sentences four nights per week, while Lowers, Nolan, and Swiderski were ordered to serve their sentences on weekends.

The Camden County Prosecutor’s Office challenged the sentences. In a consolidated opinion, the Appellate Division held that the sentencing court did not exceed its authority by imposing intermittent sentences. However, the panel held that defendants “must serve continuous twenty-four-hour periods [in jail] to satisfy each day of the 180-day mandated term.” The panel reasoned that an intermittent sentence does not violate the parole ineligibility term or “reduce the total time of confinement.” The panel also pointed out that N.J.S.A. 2C:40-26(c) contains no language requiring that days be served consecutively. The panel further reasoned that intermittent sentences would have a greater deterrent effect and relied on the rule of lenity.

NJ Supreme Court’s Decision in State v. Rene M. Rodriguez

The Supreme Court of New Jersey reversed. It held that an individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7). Justice Lee Solomon wrote on behalf of the court.

We agree with the State that, because mandatory fixed periods of parole ineligibility apply to the most dangerous offenders, the Legislature chose this language — “fixed minimum sentence . . . during which the defendant shall not be eligible for parole” — to serve as a bar to release, even intermittently, during the period of parole ineligibility. See Carrigan, 428 N.J. Super. at 614 (“The strengthened penalty [of N.J.S.A. 2C:40-26] was legislatively prompted, at least in part, by reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license.”). Since N.J.S.A. 2C:40-26 includes such language, no discretion is afforded to the sentencing judge, and an intermittent sentence would violate the dictates of our Criminal Code.

The court also emphasized that N.J.S.A. 2C:40-26(c)’s wording mirrors the language utilized in other mandatory sentencing statutes for the most serious crimes. “A finding to the contrary could allow offenders sentenced under NERA, the Graves Act, or for the most serious CDS offenses to serve their periods of parole ineligibility on nights or weekends,” Justice Solomon wrote. “The parties agree that allowing the most dangerous offenders — those guilty of crimes the Legislature has found are the most serious — to serve their sentences on nights or weekends is illogical. It is a result the Legislature could not have intended.”

While the court acknowledged that parole and intermittent sentencing are distinct concepts, it found that the prohibition of parole necessarily dictates the prohibition of intermittent sentencing. “[A]llowing a person convicted under N.J.S.A. 2C:40-26 the increased freedom of intermittent sentencing when the Legislature has simultaneously prohibited the regulated release of parole for the fixed minimum period of time of 180 days creates an illogical result that cannot be the intention of the Legislature,” Justice Solomon wrote.

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