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D.W.I. Update:  Use of SLAP instead of jail sentence is illegal

Sitting as an appeals court, the Passaic County Superior Court has ruled that courts may not use the Sheriff’s Labor Assistance Program (SLAP) to satisfy a jail sentence imposed on a third offense D.W.I..  It is not clear whether there will further appeals on this issue that effects hundreds of cases statewide each year.

If a driver is convicted in New Jersey of driving while intoxicated for a third time, there are some very serious penalties (see the “Frequently Asked Questions” article on this website.) Among those serious penalties is a mandatory jail term.  Upon conviction, either after a trial or a guilty plea, the court must sentence the defendant to a mandatory 180 day jail sentence.

Over the years, some municipal courts have developed a practice of allowing to serve their jail terms through the Sheriff’s Labor Assistance Porgram ("S.L.A.P").  In response, the Conference of Presiding Judges of the Municipal Courts considered the practice.  The Conference concluded that the provisions of a SLAP program cannot and must not extend to persons convicted of a Third or subsequent DWI offense.  The Conference’s finding was applied to the individual municipal courts through directives from the presiding judges in each county.

In State v. Kotsev, the defendant was convicted of DWI for a third time.  He was sentenced to jail.  He requested that the court allow him to serve some of his jail tim in the SLAP program.  The municipal court denied his request, holding that the directive of the Presiding Municipal Court Judge prohibited such a sentence.  Kotsev appealed the judgment of the municipal court to the Superior Court.

When the Superior Court ruled on the appeal, it upheld the judgment of the municipal court.  Kotsev argued that the directive was unconstitutional.  The Superior Court disagreed and ruled that the directive does not violate either the New Jersey or the United States constitution.  As a result, the practice of using SLAP in lieu of jail sentences for third and subsequent offenders is in serious doubt.

Howes & Howes closely monitors appellate decisions in our areas of practice so that we can provide the best possible representation to our clients.

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