The Appellate panel continued: However, an intermittent sentence does not vary the length of the sentence provided. Nor does it vary the form of the sentence – which is custodial – into one that is not. An intermittent sentence is still a term of imprisonment. It is not a commitment to a rehabilitation program, even one that is inpatient. An intermittent sentence is also not a non-custodial sentence, as the offender does not satisfy the sentence during the intervening non-custodial periods.
Although we find no ambiguity in N.J.S.A. 2C:40-26, relating to the permissibility of intermittent sentences, the State and the Attorney General nonetheless resort to the provision’s legislative history. However, the extrinsic materials fall short of compelling the result they seek. No doubt, the Legislature intended to stiffen the punishment for certain repeat offenders who drive with a suspended or revoked license. The statute tars offenders with criminal records, and imposes significant terms of incarceration, whether intermittent or not.
The State contends that the Legislature’s overriding intent was simply to get recidivists off the road. However, we have found no evidence in the legislative history – nor does the State or the Attorney General point to any – that the Legislature so intended, let alone that it contemplated taking a driver off the road for 180 continuous days, as opposed to 180 non-continuous days. Had the Legislature’s focus been separating offenders from vehicles, non-jail custodial alternatives such as inpatient treatment may have been acceptable. Notably, N.J.S.A. 2C:40-26 does not impose a period of license suspension in addition to the custodial sentence. Furthermore, a person convicted of a crime under N.J.S.A. 2C:40-26(a) or (b) who is in and out of jail over ninety weekends (assuming a weekend sentence from Friday night to the same time on Sunday night), would be repeatedly reminded of his or her crime and its punishment. After a year and a half, that person, still serving his or her sentence, may be more deterred than a person who finished a continuous sentence a year earlier.
The Court makes a good point regarding 90 week-end jail stints providing more deterrence than a consecutive 180-day sentence. This is especially true in light of the fact that each re-entry into jail would involve a separate body cavity search, i.e. 90 degrading searches instead of one.