New Jersey Court Rules on “Periodic Service” of Sentence in DWI Case

New Jersey DWI law identifies multiple levels of penalties for driving while intoxicated (DWI), primarily based on the number of convictions a defendant has during the ten years prior to the current alleged offense. A third or subsequent offense includes a mandatory minimum sentence of 180 days in jail. Municipal courts in New Jersey are authorized by law to allow “periodic service” of a jail sentence, meaning that a person does not have to serve their entire sentence continuously. After a municipal court sentenced a defendant to periodic service of a mandatory 180-day sentence for DWI, prosecutors appealed. They argued that periodic service is not available for a third DWI offense. The Appellate Division agreed with the prosecutors’ argument in July 2018 in State v. Anicama.

Municipal courts in New Jersey have original jurisdiction over motor vehicle and traffic offenses, with some exceptions. The periodic service statute provides that municipal courts may allow a person to serve a jail sentence “periodically on particular days, rather than consecutively.” The person gets credit for each day spent in jail, or for fractions of days “to the nearest hour actually served.”

The penalty for a first DWI offense may vary based on a defendant’s blood alcohol content (BAC), with enhanced penalties for BAC of 0.10 percent or more. For a second offense within a ten-year period, the penalty is enhanced further regardless of BAC. A third or subsequent offense carries the greatest possible penalty, including a $1,000 fine, a minimum 180-day jail sentence, a ten-year driver’s license suspension, and mandatory use of an ignition interlock device. According to the DWI statute, a court may decrease the jail sentence by up to ninety days if the defendant completes an approved drug or alcohol inpatient treatment program.

The defendant in Anicama pleaded guilty to a third DWI offense. He was sentenced to the mandatory 180-day jail term, along with the other required penalties. He asked the court to allow him to serve his sentence two days per week, stating that serving the sentence all at once “would result in the loss of his restaurant business.” The municipal court granted this request, allowing the defendant to serve his sentence on Mondays and Tuesdays. The state appealed to the Law Division, calling the sentence “illegal.” The Law Division reversed the municipal court’s order, and the defendant appealed.

The Appellate Division affirmed the Law Division’s ruling, finding that periodic service is not allowed for the mandatory jail sentence of a third DWI offense. The court based its decision in large part on the 2003 law, known as Michael’s Law, that imposed a mandatory 180-day sentence for a third or subsequent DWI offense. The sponsors’ statement that accompanied the bill noted that existing law allowed individuals convicted of a third or subsequent offense to serve their entire sentence at an inpatient rehabilitation facility. The intent of the bill, according to the statement, was to make such offenders ineligible for work release, and to require them to serve at least ninety days in jail. The court found periodic service to be inconsistent with this intent.

Evan Levow is a New Jersey DWI attorney who advocates for the rights of people facing alleged DWI charges in this state’s municipal courts. He can guide you through the court process, help you understand your rights, and prepare the best defense for your case. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation to discuss your case.