On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 104-04.
The opinion of the court was delivered by: Conley, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Conley, Weissbard and Winkelstein.
Defendant appeals the incarceration aspect of her Atlantic County Superior Court, Law Division third-offender DWI sentencing. Essentially, she claims other counties afford third-offenders alternative sentencing options, contends such options are statutorily permissible, and opines that the sentencing judge's refusal to offer such an option here denies her equal protection. We affirm.
Prior to its amendment in 2004,*fn1 N.J.S.A. 39:4-50(a)(3) had provided in pertinent part:
For a third or subsequent violation, 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, except that the court may lower such term for each day, not exceeding 90 days, served performing community service in such form and on such terms as the court shall deem appropriate under the circumstances and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years. . . .
As amended, the law now requires:
For a third or subsequent violation, 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 for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years. . . . [Emphasis added.]
The language is clear. Confinement, either entirely in jail or partially in jail and partially in an inpatient facility, is required. There is no allowance for non-custodial alternatives.
As the mandate is clear, we need not resort to extrinsic evidence to discern the Legislature's intent in enacting this amendment. State v. Hrycak, 184 N.J. 317, 364 (2005). Contrast State v. Reiner, 180 N.J. 307, 318 (2004). But were we to do so in order to discern the "internal sense of the law," Jimenez v. Baglieri, 152 N.J. 337, 347 (1998), the result would be the same. The statement on the amendment from the Senate Law and Public Safety and Veterans' Affairs Committee expressly asserts: "The [amendment] . . . makes drunk drivers who are required to serve the mandatory term of imprisonment ineligible to participate in a work release program." The Assembly Law and Public Safety Committee Statement is comparable. The Governor's official news release reiterates the statements provided by both the Assembly and Senate Committees: "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."*fn2
Nonetheless, defendant points to N.J.S.A. 39:4-51 as authority for judicial discretion to fashion non-custodial alternatives for third offenders. Indeed, that statute does authorize work release as an option. It also permits out-patient treatment as an option where an inpatient sentence has been imposed. However, there can be no question but that the statute applies solely to "[a] person who has been convicted of a first or second violation of Section 39:4-50 . . . ." N.J.S.A. 39:4-51.
State v. Fyffe, supra, 244 N.J. Super. 310, seemingly relied upon by defendant, is inapposite. First, it predates Michael's Law. Second, it does no more than hold that inpatient confinement to an alcohol treatment facility served prior to defendant's DWI sentence may be credited toward his jail sentence. Id. ...