N.J.S.A. 2C:40-26 criminalizes operating a motor vehicle during a period of a license suspension for a violation of N.J.S.A. 39:4-50, driving while intoxicated or N.J.S.A. 39:4-50.4, refusal of a breath test. Specifically, a violation of N.J.S.A. 2C:40-26 is a crime of the 4th Degree if an individual operates a motor vehicle while suspended for a first violation of driving while intoxicated or refusal of a breath test and has been previously convicted for a violation N.J.S.A. 39:3-40, driving while suspended. It is also a 4th Degree crime under the statute if an individual operates a motor vehicle while under suspension for a second or subsequent violation of driving while intoxicated or refusal of a breath test. An individual convicted of a violation of N.J.S.A. 2C:40-26 is subject to an 18-month custodial sentence with a mandatory minimum 180 days in jail without the possibility of parole. In other words, if convicted of a violation of N.J.S.A. 2C:40-26 you must serve 180 days in jail.
Up until recently, the mandatory 180 day jail term had to be served consecutively or without interruption. However, in State v. Rodriguez, the Appellate Division decided that an intermittent or non-continuous sentence does not violate the principles of parole ineligibility as an intermittent sentence does not change the length of the jail term. Therefore, subject to the sentencing Judge’s discretion, a violation of N.J.S.A. 2C:40-26 could be served over the course of several weekends in the County Jail.
If you have been charged with a violation of N.J.S.A. 2C:40-26 or any other offense under the New Jersey Motor Vehicle or Criminal Code please contact Criminal Law Partner Greg S. Gargulinski, Esq.