The New Jersey appellate division, in an approved for publication decision, ruled the trial court does not have any discretion to allow a defendant to show up for “nightly incarceration”. The appellate division affirmed the legislature’s mandate of a fixed term of 180 days for the 4th° offense without parole eligibility. In this case the trial judge allowed the defendant to appear at night at the jail to serve his term if incarceration. This was an illegal sentence.
As a result, the Appellate Division figured, the total time served would only amount to the equivalent of 90 days as opposed to legislative mandated 180 days. The appellate division determined that this sentence exceeded the trial judge’s sentencing authority outlined and governed by the criminal code and as such was reversed.
So the answer is, yes if you are found guilty of driving while suspended for a second or subsequent time during a DWI suspension, you are required to serve a minimum of six months county jail for this 4th criminal charge.
Submitted by New Jersey DWI Defense Lawyer, Jeffrey Hark.