The following novel arguments were successfully submitted on behalf of one of Fred Sisto’s clients in order to reduce his two day jail sentence to twelve hours at the Intoxicated Driver Resource Center:
When Laurick relief is granted for a second DWI, it is within the Court’s discretion to sentence the defendant from 12 to 48 hours at the IDRC, as opposed to 48 hours. Admittedly, as Your Honor noted, this will be a non-issue in the vast majority of second offender cases since most courts will sentence offenders on the otherwise mandatory two days of imprisonment to two days at the IDRC. However, under the rare where a second offender is granted Laurick relief, the mandatory two days of imprisonment does not apply.
Therefore, it makes sense to turn to the DWI statute to determine the range of IDRC sentences. Unfortunately, the statute is silent on the IDRC range for second offenders, whereas the ranges are listed for first offenders (12 to 48 hours) and third or subsequent offenders (up to 90 days at an IDRC approved inpatient program in lieu of imprisonment).
While a literal reading of the statute indicates that no IDRC time at all is required for second DWI offenders, it is respectfully submitted that the most reasonable positon is that the minimum IDRC sentence is the 12 hours that we are requesting. This is consistent with the DWI statute’s silence on the issue, along with precedent holding that ambiguities in statutes are to be construed strictly against the State and in favor of the defendant. See State v. Reiner, 180 N.J. 307, 318 (2004).
Moreover, a 12 hour IDRC sentence, as opposed to a 48 hour sentence is the only way to give any practical effect to the municipal court judge’s order granting my client Laurick relief. That is to say, that a second offender who has not been granted Laurick relief will receive 48 hours at the IDRC (with the otherwise mandatory jail sentence running concurrent to this IDRC time). If my client is sentenced to 48 hours, his Laurick “relief” will be nullified and cease to function as relief, i.e. he will receive the exact same sentence as a second offender who has not been granted Laurick relief.
The relevant portions of the DWI statute are as follows:
(1) For the first offense:
(i) if the person’s blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a motor vehicle while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a motor vehicle owned byhim or in his custody or control or permits another person with a blood alcohol concentration of 0.08% or higher but less than 0.10% to operate a motor vehicle, to a fine of notless than $250 nor more than $400 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of theIntoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of three months;
(ii) if the person’s blood alcohol concentration is 0.10% or higher, or the person operates a motor vehicle while under the influence of narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle, to a fine of not less than $300 nor more than $500 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year; . . .
(2) For a second violation, a person shall be subject to a fine of not less than $500 nor more than $1,000, and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days, and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of two years upon conviction, and, after the expiration of said period, he may make application to the Chief Administrator of the New Jersey Motor Vehicle Commission for a license to operate a motor vehicle, which application may be granted at the discretion of the chief administrator, consistent with subsection (b) of this section. For a second violation, a person also shall be required to install an ignition interlock device under the provisions of P.L.1999, c.417(C.39:4-50.16 et al.)
(3) For a third or subsequent violation, a person shall be subject to a fine of $1,000, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years. For a third or subsequent violation, a person also shall be required to install an ignition interlock device under the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.). . . A court that imposes a term of imprisonment for a first or second offense under this section may sentence the person so convicted to the county jail, to the workhouse of the county wherein the offense was committed, to an inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health. N.J.S.A. 39:4-50.