Intermittent Jail Sentences and Parole Ineligibility (Part 1)

by | Jul 29, 2019 | Blog, Criminal Law

On May 21, 2019, the New Jersey Supreme Court decided the Camden County case of State v. Rene Rodriguez. The principal issue was whether an intermittent jail sentence is permitted with regard to the 180-day mandatory minimum sentence for fourth degree Operating a Motor Vehicle During a Period of License Suspension.

Justice Solomon wrote for a unanimous Court and held in relevant part as follows: 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. 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.

Said another way, N.J.S.A. 2C:43-2(b) is its own list of mutually exclusive sentencing options. Accordingly, N.J.S.A. 2C:43-2(b)(7) is not a means by which to serve a sentence imposed under another provision; it is a sentencing option in and of itself. As a result, an intermittent sentence is not available where the Legislature has otherwise provided for the specific sentence that an offender is to serve, such as we have in N.J.S.A. 2C:40-26.

Therefore, construing N.J.S.A. 2C:40-26 in the context of Title 2C’s sentencing scheme, we conclude that the language manifests a legislative intent to bar intermittent sentences. The legislative choice of very specific wording regarding the custodial sentence to be imposed does not permit resort to an alternative, intermittent sentence available as a general sentencing option under N.J.S.A. 2C:43-2(b)(7). N.J.S.A. 2C:40-26(c)’s wording mirrors the language utilized in other mandatory sentencing statutes for the most serious crimes.

Here, the Supreme court focused on what it perceived to be the Legislature’s intent, with regard to our criminal code in general. An alternative would be to focus on the plain language of the statute that says nothing about prohibiting intermittent sentences.