New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

FOR IMMEDIATE RELEASE: 04/03/07
CONTACT:Barbara S. Straczynski
Director of Communications
732-937-7524

NJSBA Resolution Questioning the Basis of the AOC Memorandum Regarding Sentencing of Third or Subsequent DWI Offenders

The Board of Trustees of the NJ State Bar Association approved the attached Resolution on February 23, 2007 that questions the basis of the AOC memorandum regarding sentencing of third or subsequent DWI offenders

RESOLUTION

NJSBA Resolution

Questioning the Basis Of The

AOC Memorandum Regarding Sentencing of

Third or Subsequent DWI Offenders

Whereas the Appellate Division in State v. Luthe found that the sentencing statute for third or subsequent driving while intoxicated offenses under N.J.S.A. 39:4-50(a)(3) does not authorize non-custodial alternatives such as work release or out-patient drug and alcohol rehabilitation; and

Whereas the Appellate Division in State v. Luthe requested that the Administrative Director of the Courts consider issuing a directive to the municipal courts disapproving those sentencing alternatives found to be inconsistent with the Court’s “construction of the statute”; and

Whereas, on October 25, 2006, AOC Administrative Director Philip S. Carchman, J.A.D. issued a directive which specifically directed municipal courts to require the jail term for those defendant’s found guilty of third or subsequent driving while intoxicated offenses to begin on the “same day on which he or she is sentenced”; and

Whereas, the AOC memorandum dated October 25, 2006 exceeds the holding in State v. Luthe and is in direct conflict with State v. Grabowski (2006), which holds that a defendant, having been convicted of a third or subsequent violation of N.J.S.A. 39:4-50, may be sentenced to periodic imprisonment pursuant to N.J.S.A. 2B:12-22 notwithstanding the provisions of Michael's Law, which amended N.J.S.A. 39:4-50 and N.J.S.A. 39:4-51, and State v. Luthe; and

Whereas, the AOC memorandum dated October 25, 2006 is a directive that has no substantive effect on the interpretation of the statute or prior case law but which by its imprimatur carries with it the force and effect of law and ultimately serves to intimidate the municipal courts and their prosecutors from considering sentencing alternatives authorized and available under our statutes and corresponding case law; and

Whereas, the AOC memorandum dated October 25, 2006 exemplifies the greater issue of the overarching and unauthorized exercise of control by the AOC; and

Whereas, the New Jersey State Bar Association on behalf of the attorneys in this State express their concern and disapproval of the AOC memorandum dated October 25, 2006 and the general policy of the Administrative Office of the Courts to issue directives with the purported effect of law which are contrary to case law or statutory authority;

Therefore, Be It Resolved that the force and effect of such memorandum should be immediately stayed, rescinded and withdrawn until a case of similar facts and circumstances to that of State v. Grabowski has been decided on its merits by a court of law in the ordinary course of the appellate process as established by the New Jersey Constitution.