Drivers With Three or More DWI Convictions Must Serve 180 Continuous Days in Jail; Sentence Permitting Two Days a Week in Jail Vacated

By Thomas F. Dorn, Jr., Esq.

On July 17, 2018, in an opinion approved for publication, the Appellate Division in State of New Jersey v Anicama  (A-0452-16T4) held that a driver who had been given a 180 day jail time sentence for a fourth drunk driving conviction could not serve his jail time two days a week for 90 weeks.  Defendant Anicama pled guilty to Driving While Intoxicated in municipal court.  He had three prior DWI convictions and a prior controlled substance conviction.  Pursuant to a plea agreement, defendant received a ten year loss of license and 180 days in jail.  Defendant requested that his 180 day jail sentence be served two days a week because he claimed that a continuous jail sentence would result in the loss of his restaurant business.  The municipal court judge granted defendant’s two day a week jail sentence request, citing N.J.S.A. 2B:12-22 as authority.  The State appealed, claiming that the serving of the 180 days for two days a week was an illegal sentence.  The Law Division reversed the municipal court’s sentence and ordered the defendant to serve his sentence on consecutive days.  Defendant appealed the Law Division ruling.

The Appellate Division discussed the legislative history of the 2004 bill known as Michael’s Law passed in memory of Michael Albano who was killed by a drunk driver with four prior DWI convictions.  The court explained that the law was passed to strengthen mandatory penalties for multiple DWI offenders.  The opinion quoted former Governor McGreevy who said that “Michael’s Law will keep third-time DWI offenders off the streets, even if they won’t keep themselves off the streets.  It will guarantee they spend time in jail”.   The court discussed N.J.S.A. 39:4-50(a)(3) which states that for a third or subsequent DWI offense there shall be a county jail or workhouse sentence of not less than 180 days which could be lowered to 90 days if the offender goes to a drug or alcohol inpatient rehabilitation program.  The court found that Michael’s Law does not permit two days a week jail sentences; the 180 days or less must be served continuously.

This decision sends a clear “no tolerance” message that New Jersey’s DWI laws are mandatory and cannot be modified by municipal court judges to accommodate a multiple DWI offender’s work schedule or likely financial loss.