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March 13, 2015


Submitted January 26, 2015 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 34-2013.

Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Robin A. Hamett, Assistant Prosecutor, of counsel and on the briefs).

Helmer, Conley & Kasselman, P.A., attorneys for respondent (Patricia B. Quelch, of counsel and on the brief).


The question posed before us is whether defendant in this third-time driving while intoxicated ("DWI") case is entitled to jail credits for the 149-day period he spent under what was characterized in the Law Division as the functional equivalent of a "house arrest." The municipal court imposed the restriction, without any objection by defendant, as a condition of a stay of the 180-day custodial sentence mandated by the statute, pending de novo review of his DWI conviction in the Law Division. For the reasons that follow, we conclude that such credits are not authorized under the law, and reverse the Law Division's contrary determination.

N.J.S.A. 39:4-50(a)(3) provides that for a third or subsequent conviction of DWI

[A] person shall be subject to a fine of $1,000.00, 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 per each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center[.]

As we held in State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006), "[t]here is no allowance for noncustodial alternatives."

The pertinent chronology implicating this statute is as follows. Defendant was convicted of his third DWI offense in the municipal court, after losing a motion to dismiss for alleged non-receipt of evidence obtained by the police. The municipal court ordered defendant placed in custody.

Defense counsel requested a stay pending appeal de novo to the Law Division. The municipal court denied a stay. Defense counsel clarified that he only wished to stay the incarceration portion of the sentence under Rule 7:13-2, which permits a stay "on such terms as the court deems appropriate." The municipal court asked what terms counsel would propose. After defense counsel advised that the appeal would take ninety days and that defendant was retired, the court stated the term that defendant be confined to his home except to consult with counsel and to see his doctors. Defense counsel asked for "one amendment," namely three, three-hour visits per week to his adult daughter to replicate the visits he represented he made to care for her due to her severe brain injury. The court agreed, and defense counsel replied, "that should be fine." Defendant appealed that DWI conviction, de novo, to the Law Division.

After the Law Division judge denied his de novo appeal of the merits of his conviction and the related motion to dismiss, the lawyer now representing defendant argued that for 149 days defendant had been on "house arrest" imposed "in conjunction with this charge." The Law Division felt it had no choice but to give credit for "an improper sentence." When the prosecutor brought out that the "house arrest" was a condition of a stay defendant had sought, defense counsel questioned the municipal court's ability to set that condition, and asked the Law Division to sentence him to 31 days. The Law Division sentenced him to 180 days, but gave "the defendant the benefit of the doubt" and treated the 149 days defendant spent in house arrest as a jail credit. Defendant served the putative 31-day remainder of his jail sentence immediately at the county jail and waived double jeopardy arguments.

The State now appeals, arguing that the house arrest is unauthorized by statute to be treated as a jail credit. We agree.

The statute could not be plainer about the sanction: a defendant found guilty of DWI for a third or successive time must be sentenced to imprisonment for a term of "not less than 180 days," and that time must be served "in a county jail or workhouse." N.J.S.A. 39:4-50(a)(3). The only enumerated potential exception is that the court, in its discretion, may reduce the custodial term by up to ninety days for each day the defendant served in an approved drug or alcohol inpatient rehabilitation program. N.J.S.A. 39:4-50(a)(3). See State v. French, 437 N.J. Super. 333, 338 (App. Div. 2014) (stating that "no discretion exists in Title 2C to replace half of the mandatory 180 days of incarceration with a non-jail rehabilitation program"); see also State v. Harris, __ N.J. Super. __, __ (App. Div. 2015) (slip op. at 4) (reaffirming French and concluding that a sentence to a home detention program, a community service program, or any other non-custodial alternative program is illegal under the analogous 180-day mandatory minimum provisions in N.J.S.A. 2C:40-26(a) or N.J.S.A. 2C:40-26(b)).

The time that defendant spent in his consensual, so-called house arrest was not time served "in custody in jail or in a state hospital." R. 3:21-8. Not only did defendant have the freedom to leave his residence to visit with his doctors, his daughter, and his lawyers, there was no on-site supervision or monitoring device to assure his compliance with the terms of the court's order. Jail under N.J.S.A. 39:4-50(a)(3) means jail in a governmental facility, not the comforts of one's home.

Defendant did receive a modest benefit from the stay of his jail sentence while it was conditioned on the house arrest, as that stay postponed his immediate incarceration while he attempted to have the municipal court's motion ruling set aside and his conviction overturned in the Law Division. The grant of a stay was by no means guaranteed. See State v. Robertson, 438 N.J. Super. 47, 74 (App. Div. 2014) (noting that the factors of Crowe v DeGioia, 90 N.J. 126 (1982), must guide courts in deciding whether to stay DWI sanctions pending appeal). Although we appreciate defendant's claim of redundancy arising out of his period of "house arrest" and the remaining portion of his mandatory jail term that he has yet to serve, that perceived redundancy was not caused by the State. The mandatory jail consequence prescribed by the Legislature must be carried out in full.

The Law Division's order granting defendant jail credits for the time he spent in house arrest is reversed. The matter is remanded to the Law Division for correction of the judgment of conviction to remove the 149-day credit that had been mistakenly awarded.

To preserve the status quo and minimize disruption, we issue an interim stay of defendant's incarceration for twenty days after this opinion; if defendant files an application for Supreme Court review and for a stay by that time, the interim stay will remain in effect until such time as the Court can act on that application.

Reversed and remanded. We do not retain jurisdiction.

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