In April the Appellate Division decided State v. Pollina and State v. Luthe which held that alternative sentencing like SLAP cannot be considered when facing a conviction or plea for driving while suspended. The Court reasoned that the plain language of the statute requires incarcertion “in the county jail or workhouse”. But this month, in State v. Toussaint, the Court held that a conviction for N.J.S.A.39:3-40(e) or a conviction for N.J.S.A. 39:6B-2 permit alternative sentencing options. N.J.S.A. 39;3-40(e) provides that if a defendant drives during a period of license suspension and is involved in an accident where another person is injured, the court shall impose a sentence of 45-180 days in jail. N.J.S.A 39:6B-2 provides upon a second offense of driving without insurance, a person is subject to 14 days in jail. But the Court found that these provisions did not specify a jail term “in the county jail or workhouse”. Considering the plain language of the statute and the rule of lenity, which provides that ambiguities in a criminal or quasi-criminal statute are resolved in favor of the defendant, the Court held that alternative sentencing option like SLAP or electronic monitoring are allowed.
It seems to me the Court is sending a clear message to the Legislature to clear other sentencing options for N.J.S.A. 39:3-40. Why should a second offender subject to 1-5 days in jail have to serve it in the county jail when a violation of N.J.S.A. 39:3-40(e) driving while suspended where there is an accident and requires a minimum of 45 days in jail be allowed electronic monitoring? The Court opined that it could not change the language of the stautue and was applying the clear meaning of the statute as defined by the Legislature. But it seems to me that in reconciling these three cases, the Court is sending a message that there is an injustice in the way the statutes are written.