Muni-mail – No S.L.A.P. or Weekend Jail in 3rd Offense DWI Sentences

The holding by the Appellate Division this morning in State v. Kotsev can be read as standing for the proposition that alternative sentencing options in lieu of jail, such as Sheriff’s Labor Assistance Programs (S.L.A.P.) and weekend jail are not permitted in cases involving 3rd offense drunk drivers. The only permissible alternatives are straight jail and in-patient therapy for a period not to exceed 90 days.

The Court’s opinion affirms a Law Division decision in the trial de novo from municipal court. The Law Division’s written decision can be found at here.

There are a number of important issues left unresolved by the Appellate Division in Kotsev:

1. The Court notes that a decision in the Law Division, State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006) which permitted weekend jail as an option is contrary to an earlier Appellate Division holding in State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006). The Court in Kotsev, however, does not specifically state that Grabowski is overruled or disapproved.

2. The Court based its holding on the state of the law in 1993 which is the time the offense occurred. Weekend jail terms in drunk driving cases were authorized at that point by statute (N.J.S.A. 2A:8-30.1 now repealed) for sentences in excess of 90 days. This issue is not reviewed in Kotsev.

3. By comparing the similarities between the 1993 dwi statute and the version in effect today, the Court appears to hold that both S.L.A.P. and weekend jail were unavailable in 1993 and are equally unavailable today.

Download a copy of State v. Kotsev.

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