# STATE OF NEW JERSEY VS. PEDRO C. ANICAMA (06-16, HUDSON COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · July 13, 2018

URL: https://www.frixlaw.com/law-library/cases/4430895

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 13, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4430895

## How later opinions describe it (automated extraction)

- rejecting an order allowing a criminal sentence to "be served on weekends" because there was "no statutory authority for imposition of a periodic sentence"
- applying that precept even though the Legislature's draftsmanship was "'subject to criticism'"

## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0452-16T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
July 13, 2018
v.
APPELLATE DIVISION
PEDRO C. ANICAMA,

Defendant-Appellant.
______________________________

Argued December 19, 2017 – Decided July 13, 2018

Before Judges Yannotti, Carroll, and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Municipal Appeal
No. 06-16.

Anthony R. Draucikas argued the cause for
appellant (The Draucikas Law Firm, LLC,
attorneys; Anthony R. Draucikas, on the
brief).

Stephanie Davis Elson, Assistant Prosecutor,
argued the cause for respondent (Esther
Suarez, Hudson County Prosecutor, attorney;
Frances Tapia Mateo, Assistant Prosecutor, on
the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Pedro C. Anicama appeals from the Law Division's

August 16, 2016 order. He received the mandatory 180-day sentence

for his third or subsequent conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50(a)(3). The Municipal Court

allowed him to serve his sentence by being in jail only two days

a week, a form of periodic service. The Law Division reversed.

Despite prior decisions by this court, it is apparently "not

entirely clear whether a third or subsequent offender's mandatory

prison term may be served on a periodic basis." Richmond & Burns,

Municipal Court Practice § 29:3-3 (2017) (citing State v.

Grabowski, 388 N.J. Super. 431 (Law Div. 2006)). We disapprove

Grabowski and hold that a third or subsequent DWI offender is

ineligible for periodic service of the mandatory 180-day sentence.

Accordingly, we affirm the Law Division.

I.

In his guilty plea colloquy, defendant admitted the following

facts. On the evening of May 10, 2015, he consumed beer and a

shot of scotch whiskey. The alcohol affected his ability to drive.

As a result, defendant hit a parked car in the Town of Harrison

and continued driving. He drove into the Borough of East Newark,

and hit another parked car, and again kept driving to his house.

When he parked at his home, police officers approached and arrested

him. The officers found cocaine and a half-empty bottle of scotch

whiskey in defendant's car. Defendant had three prior convictions

for DWI, and a prior conviction for controlled substances.

2 A-0452-16T4
Defendant was charged in East Newark with DWI; third-degree

possession of a controlled dangerous substance; leaving the scene

of an accident; failing to report an accident; reckless driving;

careless driving; and having an open container of alcohol in a

vehicle. He was charged in Harrison with leaving the scene of an

accident. The charges were consolidated in the East Newark

Municipal Court.

On March 10, 2016, defendant pled guilty in the Municipal

Court to a third or subsequent DWI violation, N.J.S.A. 39:4-

50(a)(3); disorderly-persons possession of drug paraphernalia,

N.J.S.A. 2C:36-2; leaving the scene of an accident, N.J.S.A. 39:4-

129(d); and careless driving, N.J.S.A. 39:4-97. Pursuant to the

plea agreement, the other charges were dismissed, and he was

sentenced to ten years' loss of driving privileges and 180 days

of incarceration for the DWI charge, a suspended 180-day jail

sentence and one year of probation for the paraphernalia offense,

plus fines and other monetary assessments for those offenses, for

leaving the scene, and for careless driving.

Defendant requested that the 180 days in jail for his DWI

offense be served two days per week. He claimed serving his

sentence continuously would result in the loss of his restaurant

business. The Municipal Court found it had authority to allow

such periodic service under N.J.S.A. 2B:12-22. The judge ordered

3 A-0452-16T4
defendant to serve the 180 days "at a rate of not less than two

consecutive days per week," with his "work schedule to be

accommodated to the extent possible." Defendant began serving his

sentence on Mondays and Tuesdays only.

The State appealed the "illegal sentence" on the DWI offense.

After hearing argument, the Law Division issued a written opinion

on August 26, 2016, reversing the Municipal Court. The Law

Division ruled "[d]efendant's argument that periodic service is

permissible pursuant to N.J.S.A. 39:4-50(a)(3) is without merit,"

and ordered defendant to surrender and serve the remainder of his

sentence on consecutive days. Defendant appeals.1

II.

Defendant raises an issue of statutory interpretation.

"'[B]ecause statutory interpretation involves the examination of

legal issues,'" we apply "'a de novo standard of review applies.'"

State v. Nance, 228 N.J. 378, 393 (2017) (citation omitted). We

must hew to that standard of review.

A court's responsibility "is to give effect
to the intent of the Legislature." To do so,
we start with the plain language of the
statute. If it clearly reveals the
Legislature's intent, the inquiry is over. If
a law is ambiguous, we may consider extrinsic
sources including legislative history. We
also look to extrinsic aids if a literal

1
We have been told defendant's service of the remainder of his
sentence has been stayed.

4 A-0452-16T4
reading of the law would lead to absurd
results.

[State v. Harper, 229 N.J. 228, 237 (2017)
(citations omitted).]

III.

The general statutes governing Municipal Courts provide that

"[a] court may order that a sentence of imprisonment be served

periodically on particular days, rather than consecutively. The

person imprisoned shall be given credit for each day or fraction

of a day to the nearest hour actually served." N.J.S.A. 2B:12-

22. The issue is whether this general statute applies to

defendants convicted of third or subsequent DWI violations under

N.J.S.A. 39:4-50(a)(3). To decide this issue, we must review the

changes regarding the jail term for third or subsequent DWI

offenses made effective January 20, 2004 by "Michael's Law," L.

2003, c. 315.2

Michael's Law made the following pertinent amendments to the

existing statutes, with the additions and [deletions]. First,

Michael's Law amended N.J.S.A. 39:4-50(a)(3):

For a third or subsequent violation, a person
. . . 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

2
Contrary to defendant's argument, Michael's Law was enacted after
N.J.S.A. 2B:12-22. N.J.S.A. 2B:12-22 was adopted in L. 1993, c.
292, § 1, and became effective on February 15, 1994.

5 A-0452-16T4
90 days, served [performing community service
in such form and on such terms as the court
shall deem appropriate under the
circumstances] participating in a drug or
alcohol inpatient rehabilitation program
. . .

[N.J.S.A. 39:4-50(a)(3) (1993) & (2018).]

Second, Michael's Law amended an unnumbered paragraph of

N.J.S.A. 39:4-50(a):

A court that imposes a term of imprisonment
for a first or second offense under this
section may sentence the person so convicted
to the county jail, to the workhouse of the
county wherein the offense was committed, to
an inpatient rehabilitation program or to an
Intoxicated Driver Resource Center or other
facility . . . .

[N.J.S.A. 39:4-50(a) (1993) & (2018).]

Finally, Michael's Law amended N.J.S.A. 39:4-51:

A person who has been convicted of [violating]
a first or second violation of section 39:4-
50 of this Title, and in pursuance thereof has
been imprisoned in a county jail or workhouse
in the county in which the offense was
committed, shall not, after commitment, be
released therefrom until the term of
imprisonment imposed has been served. A
person imprisoned in the county jail or
workhouse may in the discretion of the court,
be released on a work release program.

No warden or other officer having custody of
the county jail or workhouse shall release
therefrom a person so committed, unless the
person has been released by the court on a
work release program, until the sentence has
been served. A person sentenced to an
inpatient rehabilitation program may upon

6 A-0452-16T4
petition by the treating agency be released,
by the court, to an outpatient rehabilitation
program for the duration of the original
sentence.

[N.J.S.A. 39:4-51 (1977) & (2018).]

Defendant argues that, unlike persons convicted of "a first

or second" DWI violation, persons convicted of third or subsequent

DWI violations need not be confined "until the term of imprisonment

imposed has been served." Ibid. That literal reading has no

basis in the legislative history, and produces absurd results.

The bill that became Michael's Law was introduced into the

Assembly. A. 3342 (Feb. 13, 2003) [Original Assembly Bill].3 The

Assembly Law and Public Safety Committee adopted a committee

substitute. Assemb. Comm. Substit. for A. 3342 (Mar. 10, 2003)

[Assembly Committee Substitute]. The Senate Law and Public Safety

and Veterans' Affairs Committee amended the Assembly Committee

Substitute. Assemb. Comm. Substit. for A. 3342 (first reprint

Nov. 24, 2003) [Senate Committee Amended Bill].4 The amended

3
The bill introduced in the Senate contained the identical
proposed language and sponsors' statement. S. 2378 (Mar. 10,
2003); Sponsors' Statement appended to S. 2378 (Mar. 10, 2003).
4
The Senate committee also adopted an identical Senate committee
substitute and statement. Senate Comm. Substit. for S. 2378 (Nov.
24, 2003); Senate L. & Pub. Safety & Veterans' Affairs Comm.
Statement to Senate Comm. Substit. for S. 2378 (Nov. 24, 2003).

7 A-0452-16T4
version was unanimously passed by the Senate, unanimously passed

by the Assembly on January 12, 2004, and was signed by the

Governor. Governor's Official Press Release (Jan. 20, 2004)

[Governor's Statement].5

The bill was known as Michael's Law "in memory of Michael

Albano, a 19-year old from Vineland who was killed by a drunk

driver in December 2001. The offender had four previous drunk

driving convictions." Sponsors' Statement appended to A. 3342 53

(Feb. 13, 2003) [Sponsors' Statement]. The statutory language and

legislative history show Michael's Law "enhances penalties for

third and subsequent [DWI] offenses." Governor's Statement at 1.

As Governor McGreevey explained: "'Statistics show multiple DWI

offenders are one of the most difficult groups to stop from drunk

driving . . . . 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.'" Ibid.

First, Michael's Law sought to make third or subsequent DWI

offenders spend 180 days in jail, with the only exception being

up to ninety days in an inpatient drug or alcohol treatment

program. The Original Assembly Bill provided that such a "person

5

https://repo.njstatelib.org/bitstream/handle/10929.1/20964/govme
ss/ch315gov.htm.

8 A-0452-16T4
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, of participation in a rehabilitation program

for drug and alcohol dependent persons." Id. at 2.6 The bill's

sponsors sought to "motivate these offenders to seek treatment for

the underlying alcohol or drug problem that causes them to

reoffend." Sponsors' Statement at 53.

The Assembly Committee Substitute proposed to amend N.J.S.A.

39:4-50(a)(3) to require that third or subsequent DWI offenders

serve both "90 days imprisonment in a county jail or workhouse"

and "a 90-day drug or alcohol inpatient rehabilitation program."

Id. at 3. The committee statement explained this would require

"a mandatory 90-day term of imprisonment in a county jail or

workhouse." Assemb. L. & Pub. Safety Comm. Statement to Assemb.

Comm. Substit. for A. 3342 1 (Mar. 10, 2003) [Assembly Committee

Statement].

6
The Original Assembly Bill proposed to place this language in a
new section in the Criminal Code making a third or subsequent DWI
offense "a crime of the fourth degree," and to amend N.J.S.A.
39:4-50(a)(3) by deleting its language addressing jail and
community service and adding that a defendant who committed a
third or subsequent DWI offense "shall be subject to the penalties
set forth in" the proposed criminal section. Original Assembly
Bill at 2, 36. Those proposals were not adopted in subsequent
versions of the bill.

9 A-0452-16T4
The Senate Committee Amended Bill replaced the Assembly

Committee's requirement of ninety days in jail and ninety days in

inpatient rehabilitation with the ultimately-adopted requirement

of "not less than 180 days in a county jail or workhouse" which

the court could reduce "for each day, not exceeding 90 days," in

an inpatient rehabilitation program. Id. at 3. The Senate

committee statement explained that, except for such inpatient

rehabilitation, it was otherwise requiring "a mandatory 180-day

sentence in a county jail or workhouse." Senate L. & Pub. Safety

& Veterans' Affairs Comm. Statement to Assemb. Comm. Substit. for

A. 3342 1 (Nov. 24, 2003) [Senate Committee Statement].

Second, Michael's Law sought to prevent third or subsequent

DWI offenders from serving any of their jail sentence in community

service. The bill deleted the language in N.J.S.A. 39:4-50(a)(3)

permitting up to ninety days of the jail term to be served by

performing community service. Original Assembly Bill at 2, 36;

Assembly Committee Substitute at 3; Senate Committee Amended Bill

at 3. The committee statements differentiated Michael's Law from

the "current law" under which a court could reduce the 180-day

jail term "by up to 90 days for each day served performing

community service." Assembly Committee Statement at 1; Senate

Committee Statement at 1.

10 A-0452-16T4
Third, Michael's Law sought to remove the option of serving

all of the 180-day term in an inpatient drug or alcohol

rehabilitation program. Unlike the unnumbered paragraph of

N.J.S.A. 39:4-50(a) (1993), which permitted all DWI offenders to

be sentenced "to the county jail, to the workhouse of the county

wherein the offense was committed, [or] to an inpatient

rehabilitation program," ibid., Michael's Law required third or

subsequent DWI offenders to serve the first ninety days "in a

county jail or workhouse." Assembly Committee Substitute at 3;

Senate Committee Amended Bill at 3. The committee statements

noted that "[u]nder current law," third or subsequent DWI offenders

"may not be required to serve their term of imprisonment in the

county jail or workhouse, but may serve such imprisonment in an

inpatient rehabilitation program. Under the substitute, at least

90 days would have to be served in jail without exception."

Assembly Committee Statement at 1; Senate Committee Statement at

1.

Fourth, Michael's Law sought to prevent work release for a

third or subsequent DWI violation by inserting the language "a

first or second violation" into N.J.S.A. 39:4-51. Assembly

Committee Substitute at 3; Senate Committee Amended Bill at 3.

The committee statements explained: "The substitute also makes

drunk drivers who are required to serve the [180-day] mandatory

11 A-0452-16T4
term of imprisonment ineligible to participate in a work release

program. Under a work release program, qualified prisoners may

be employed outside the jail, but when not working, they must be

confined to the jail." Senate Committee Statement at 1; see

Assembly Committee Statement at 1.

Thus, the legislative history shows Michael's Law sought to

strengthen the penalties for third or subsequent DWI offenders,

like the driver who killed Michael Albano, by requiring them to

serve 180 days in the county jail or workhouse, with up to ninety

days in an inpatient drug or alcohol rehabilitation program, and

by precluding all other sentencing alternatives. These penalty

enhancements served to keep third-time DWI offenders confined for

180 days and thus "'off the streets, even if they won't keep

themselves off the streets.'" Governor's Statement at 1.

Nowhere in the legislative history is there any indication

the Legislature intended Michael's Law to weaken the penalties for

third or subsequent DWI offenders by allowing them to be

periodically released before they have served the 180 days. Such

a result would be contrary to the Legislature's intent to end all

other sentencing alternatives, and would defeat the purpose of

keeping such defendants confined for the 180 days.

Moreover, defendant's argument is contrary to our definitive

interpretation of Michael's Law in State v. Luthe, 383 N.J. Super.

12 A-0452-16T4
512 (App. Div. 2006). The principal issue raised in Luthe's

appellate brief was:

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT
THE EQUAL OPPORTUNITY FOR ALTERNATE SENTENCING
PROGRAMS PURSUANT TO THE PRACTICES ENGAGED IN
THROUGHOUT THE STATE OF NEW JERSEY THEREBY
VIOLATING THE DEFENDANT'S EQUAL PROTECTION
RIGHTS.

Luthe "claim[ed] other counties afford third-offenders

alternative sentencing options." Luthe, 383 N.J. Super. at 513.

Luthe's brief argued, and she supplied a certification showing,

that "fourteen out of twenty-one counties in New Jersey offer

alternate sentencing programs such as the Work Release Program,

SLAP, CLAP, Home Arrest, the Bracelet Program and Day/Weekend

Reporting."7

Day service and weekend service are prominent examples of

periodic service. See State v. J.C.S., 156 N.J. Super. 66, 71

(App. Div. 1978) (rejecting an order allowing a criminal sentence

to "be served on weekends" because there was "no statutory

authority for imposition of a periodic sentence"); see State v.

Kotsev, 396 N.J. Super. 58, 63 (Law Div. 2005) (treating weekend

service as a "periodic sentence" under N.J.S.A. 2B:12-22), aff'd

o.b., 396 N.J. Super. 389 (App. Div. 2007). Defendant's Municipal

7
"SLAP" refers to a sheriff's "labor assistance program."
N.J.S.A. 2B:19-5. CLAP refers to a Department of Corrections'
labor assistance program.

13 A-0452-16T4
Court sentence was essentially weekend service, shifted to slow

days on a restaurant's schedule.

In Luthe, we rejected defendant's claim that she had a right

to seek such periodic service. First, we generally held that

Michael's Law prohibits work release and all other "alternative

sentencing options" for third or subsequent DWI offenders. Id.

at 513-16. We emphasized that Michael's Law amended N.J.S.A.

39:4-50(a)(3) to require such defendants to serve the 180 days "in

a county jail or workhouse" or in an "inpatient rehabilitation

program." Id. at 514 (quoting N.J.S.A. 39:4-50(a)(3)); see id.

at 514 & n.2 (noting that such "inpatient confinement" "shares

some of the same characteristics" as jail). We ruled N.J.S.A.

39:4-50(a)(3)'s "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 noncustodial

alternatives." Id. at 514. We found "the result would be the

same" if we considered the legislative history. Id. at 514 (citing

Assembly Committee Statement and quoting Senate Committee

Statement and Governor's Statement).

Second, in Luthe we viewed the amendment to N.J.S.A. 39:4-51

as intended to prohibit work release for third or subsequent DWI

offenders. Luthe argued N.J.S.A. 39:4-51 authorized work release.

Id. at 515. We rejected that claim, because under Michael's law

14 A-0452-16T4
that "statute applies solely to '[a] person who has been convicted

of a first or second violation of Section 39:4-50[.]'" Ibid.

(quoting N.J.S.A. 39:4-51). We added that "N.J.S.A. 39:4-50(a)(3)

does not allow work release as an alternate form of sentencing."

Ibid. "Simply put, N.J.S.A. 39:4-50(a)(3) does not authorize

noncustodial alternatives to the mandatory 180 days confinement,

whether that confinement be served entirely in jail or partially

in an inpatient facility. There is no statutory authority for

work release programs, out-patient treatment, or the like as an

alternative." Ibid.

Third, in Luthe we specifically rejected Luthe's claim she

had a right to be considered for periodic service. We noted

Luthe's certification that, despite Michael's Law, "fourteen of

the twenty-one counties provide such alternatives as work release,

home arrest, day reporting and weekend reporting." Id. at 516.

Although we stated the survey was not competent evidence,

"[n]onetheless" we ruled that "if disparity exists as to the use

of these alternative programs, it must cease, consistent with our

construction of the statute." Ibid.

We reaffirmed Luthe in State v. Kotsev, 396 N.J. Super. 389

(App. Div. 2007). We made clear "Luthe is binding." Id. at 391.

We also agreed with the Law Division's ruling in Kotsev that the

Michael's Law "amendments limit work release programs to first and

15 A-0452-16T4
second D.W.I. offenders." Kotsev, 396 N.J. Super. at 63-64, aff'd

o.b., 396 N.J. Super. at 391. We have since reaffirmed Luthe in

State v. Toussaint, 440 N.J. Super. 526 (App. Div. 2015), agreeing

that "the legislative history [of Michael's Law] explicitly

indicated the Legislature's intent to prohibit work release" for

third or subsequent offenders. Id. at 533-34 (citing Luthe, 383

N.J. Super. at 514). Our Supreme Court has also reaffirmed Luthe's

broad holding: "Thus, unlike the pre-2004 statute, [Michael's Law]

requires a third or subsequent DWI offender to be confined 'either

entirely in jail or partially in jail and partially in an inpatient

facility' with 'no allowance for noncustodial alternatives.'"

State v. Denelsbeck, 225 N.J. 103, 116 (2016) (quoting Luthe, 383

N.J. Super. at 514).

Moreover, we agreed with the Law Division in Kotsev, which

applied the law in 1993 when Kotsev's third DWI offense occurred

and rejected his request to serve "his sentence on weekends"

because "such a sentence would not be aligned with the intent of

the Legislature or the enhanced penalties contained in the current

statute." Kotsev, 396 N.J. Super. at 60-61, 64, aff’d o.b., 396

N.J. Super. at 391. We similarly rejected Kotsev's claim he should

be allowed to serve his jail sentence on weekends: "The 1993 DWI

statute was no less clear than the 2004 amendment. . . . SLAP is

not an option. Weekend service is not an option." Kotsev, 396

16 A-0452-16T4
N.J. Super. at 390-92. Though Kotsev's decision under 1993 law

is not dispositive in our interpretation of Michael's Law, it

highlights that defendant is claiming that Michael's Law granted

third or subsequent DWI offenders a lenient sentencing option,

denied all DWI defendants under the preexisting law, and still

denied to first and second DWI offenders.

Defendant relies on a Law Division case, State v. Grabowski,

388 N.J. Super. 431 (Law Div. 2006). The judge in Grabowski held

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 . . . and the ruling in State v.

Luthe." Grabowski, 388 N.J. Super. at 432.

However, we have rejected Grabowski. In Kotsev, we ruled the

"[d]efendant's reliance on State v. Grabowski . . . is

substantially misplaced. First, the Law Division decision is not

binding on any court. Second, the Law Division decision . . . is

contrary to State v. Luthe." Kotsev, 396 N.J. Super. at 391. In

any event, the Law Division's decision in Grabowski is not

persuasive for several reasons.

First, the judge in Grabowski concluded Luthe "has not ruled

that periodic incarceration is unavailable to persons convicted

of third and subsequent DWI offenses." 388 N.J. Super. at 438.

17 A-0452-16T4
The judge asserted that Luthe's "reference to 'home arrest, day

reporting and weekend reporting' is dicta" and that "the precise

issue in Luthe "was limited to the availability of non-custodial

alternatives." Id. at 438-40.

To the contrary, in Luthe we ruled that Michael's Law barred

all "alternative sentencing options," and removed any "statutory

authority for work release programs, out-patient treatment, or the

like as an alternative." Luthe, 383 N.J. Super. at 513-15

(emphasis added). In particular, we rejected Luthe's claim she

had a right to be considered for "such alternatives as . . . day

reporting and weekend reporting," ordering that "the use of these

alternative programs . . . must cease." Id. at 516.

Although not the focus of our opinion, our rejection of

Luthe's claim for periodic service was not dicta. "'[M]atters in

the opinion of a higher court which are not decisive of the primary

issue presented but which are germane to that issue . . . are not

dicta, but binding decisions of the court.'" State v. Rose, 206

N.J. 141, 183 (2011) (citation omitted). In any event, "'an

expression of opinion on a point involved in a case, argued by

counsel and deliberately mentioned by the court, although not

essential to the disposition of the case . . . becomes

18 A-0452-16T4
authoritative[] when it is expressly declared by the court as a

guide for future conduct.'" Ibid. (citation omitted).8

Second, the judge in Grabowski relied on the supposed silence

of a non-binding memorandum. In Luthe, we suggested the

Administrative Office of the Courts (AOC) consider issuing

directives "to ensure uniform compliance with the statute." 383

N.J. Super. at 516. In Grabowski, the judge asserted the

subsequent AOC memorandum barring SLPA and work release said

nothing about periodic imprisonment. 388 N.J. Super. at 439-40.

However, the AOC memorandum implied the 180-day confinement

was to be served immediately and continuously. It instructed that

"the jail term of a third or subsequent DWI offender should begin

on the same day on which he or she is sentenced"; "such a defendant

should go directly from the municipal court to the jail, minimizing

his or her opportunity to drive"; courts should ensure "the

8
Recently, in holding intermittent service permissible for a
different crime under different statutes, N.J.S.A. 2C:40-26 and
N.J.S.A. 2C:43-2, we commented in a footnote that "[t]he references
to weekend sentences in Kotsev and Luthe are dicta." State v.
Rodriguez, __ N.J. Super. __, __ n.12 (App. Div. Apr. 12, 2018).
However, it was not dicta when we rejected the appellants' demands
for weekend service in Kotsev under 1993 law, and in Luthe under
Michael's Law. Thus, we respectfully disagree with the comment
in Rodriguez. We express no opinion about the validity of the
actual holding in Rodriguez, because we, like Luthe and Kotsev,
address "a different violation of a different statute with a
different legislative history," and a different statute concerning
periodic service. N.J. Super. at n.12.

19 A-0452-16T4
defendant first serves the entire 180 days of imprisonment minus

the projected length of the inpatient rehabilitation program"; and

after serving the jail portion, the defendant "should immediately

begin to serve the balance of the term . . . in the inpatient

rehabilitation program." AOC, "Sentencing of Third or Subsequent

DWI Offenders – State v. Luthe and 'Michael's Law'" at 1-2 (Oct.

25, 2006) (quoting Governor's Statement at 1). The AOC memorandum

suggested such continuous service of the 180 days "[i]n order to

effectuate" "[t]he Legislature's stated purpose in enacting

'Michael's Law' [which] was to 'keep third-time DWI offenders off

the streets, even if they won't keep themselves off the streets.'"

Id. at 1 (quoting Luthe, 383 N.J. Super. at 514 (quoting Governor's

Statement at 1)).

Even if the AOC memorandum had not implied continuous service,

an AOC directive "has no substantive effect in the interpretation

of the statute or prior case law." Booker v. N.J. State Parole

Bd., 265 N.J. Super. 191, 199 n.4 (App. Div. 1993), aff'd, 136

N.J. 257 (1994). Indeed, the Law Division in Grabowski invoked

that case to explain why it was not bound by a county directive

based on the consensus of the Conference of Presiding Judges of

the Municipal Courts. 388 N.J. Super. at 433-34.

Third, the judge in Grabowksi faulted Luthe for not citing

N.J.S.A. 2B:12-22. 388 N.J. Super. at 440. However, N.J.S.A.

20 A-0452-16T4
2B:12-22 is part of the general statutes governing the Municipal

Court, and makes no specific reference to DWI offenders. By

contrast, N.J.S.A. 39:4-51 and Michael's Law specifically

addressed how DWI offenders must serve their jail term. Thus, as

to those defendants, the more specific DWI provisions governs over

the general N.J.S.A. 2B:12-22, and Luthe properly relied on them.

"It is a well established precept of statutory construction that

when two statutes conflict, the more specific controls over the

more general." N.J. Transit Corp. v. Borough of Somerville, 139

N.J. 582, 591 (1995).

Fourth, the judge in Grabowski asserted that "Luthe did not

analyze the distinction between work release, SLAP and other non-

custodial alternatives and periodic sentences," and "that periodic

incarceration authorized by N.J.S.A. 2B:12-22 is materially

different from the non-custodial alternatives considered in

Luthe." Grabowski, 388 N.J. Super. at 438, 440. However, the

judge made too much of this distinction. Periodic service and

work release strongly resemble each other. Both allow defendants

to be in jail for limited periods and to be released from custody

to work, including at the jobs they had prior to conviction. See

N.J.S.A. 30:8-46. Thus, they both involve custodial jail time and

non-custodial work time. Indeed, defendant's request to be in

21 A-0452-16T4
jail only two days a week so he could work in his restaurant five

days a week was effectively a request for work release.

The judge in Grabowski asserted that a person on work release

was subject to more restrictions because "when such a person is

not so employed, and between the hours or periods of employment,

he or she should be confined in jail, N.J.S.A. 30:8-48," and

because the person can be prosecuted for escape under N.J.S.A.

2C:29-5(a). Grabowski, 388 N.J. Super. at 438. However, N.J.S.A.

2C:29-5(a) covers any person who "fails to return to official

detention following temporary leave granted for a specific purpose

or limited period," and thus appears broad enough to cover

defendants released during periodic service who fail to return

after the "limited period" of release. Ibid. Moreover, periodic

service can be limited to "particular days." N.J.S.A. 2B:12-22.

The judge in Grabowski stated: "Most importantly, inmates

admitted to county work release programs may be granted a

diminution of their sentence of up to one-quarter of their term

for good conduct." 388 N.J. Super. at 438-39 (citing N.J.S.A.

30:8-50). "While SLAP and work release inmates are earning jail

time credit while not actually confined within the four walls of

the penal institution, those persons under a sentence of periodic

imprisonment receive jail credit only for each day or fraction of

a day to the nearest hour actually served." Id. at 439. "The

22 A-0452-16T4
effect is that those persons under such a sentence will serve no

less time in the aggregate than those who serve their sentences

consecutively. This, of course, is not the case with persons

admitted into work release or SLAP programs." Ibid.

That distinction is unpersuasive. First, it is discretionary

whether work release results in any reduction in jail time, with

no guarantee of a day-for-day reduction. N.J.S.A. 30:8-50;

N.J.A.C. 10A:31-25.22(a); see N.J.A.C. 10A:31-23.1(b). Second,

SLAP inmates are "rigorously supervise[d] offenders providing

physical labor" for the sheriff, and thus earn whatever jail credit

they receive. N.J.S.A. 2B:19-5(c)(1).

In any event, even if SLAP or work release provided day-for-

day credit, and even if they more closely resemble confinement

than periodic service does, that begs the question why the

Legislature in Michael's Law, which eliminated both work release

and SLAP to increase the punitive and deterrent effect of the 180-

day term, would simultaneously decrease the severity of that term

by allowing it to be served in periodic snippets at the defendant's

convenience and request.

Fifth, the judge in Grabowski found the Legislature may have

misdrafted its amendment of N.J.S.A. 39:4-51. The judge noted

that N.J.S.A. 39:4-51 "had authorized work release as a sentencing

option for persons convicted of DWI," and that "Michael's Law

23 A-0452-16T4
eliminated that option for third and subsequent offenders" by

amending N.J.S.A. 39:4-51 so "that the statute applies solely to

'[a] person who has been convicted of a first or second violation

of Section 39:4-50.'" 388 N.J. Super. at 435-36 (quoting Luthe,

383 N.J. Super. at 515). As a result, the judge ruled "that the

literal and plain language of N.J.S.A. 39:4-51 compels the

conclusion that the requirement for continuous confinement to jail

for violators of our drunk driving statute does not extend to

third and subsequent offenders." Id. at 436. "Whether this result

was intentional on the part of the Legislature, or less than artful

draftsmanship that resulted in legislative 'blowback' (the concept

of unforeseen and unintended consequences), is unclear. However,

it is not for this court to completely re-write a statute which

can be afforded a reasonable interpretation when construed as

written." Id. at 437.

To the contrary, the Grabowski judge's reading of N.J.S.A.

39:4-51 was not reasonable. The judge asserted that opening the

door to periodic service by third or subsequent DWI offenders may

have been intentional because "[o]rdinarily, a change of statutory

language implies a purposeful alteration in the substance of the

law." 388 N.J. Super. at 437. However, as the legislative history

makes clear, the Legislature's purpose in inserting the language

"a first or second violation" in N.J.S.A. 39:4-51 was to restrict

24 A-0452-16T4
work release to defendants convicted of a first or second DWI

violation, and thus to make defendants convicted of third or

subsequent violations "ineligible to participate in a work release

program." Senate Committee Statement at 1; see Assembly Committee

Statement at 1.

To read the amended N.J.S.A. 39:4-51 literally would defeat

that legislative objective. The language "first or second

violation" appears only in the amended first sentence, which does

not address work release. Read literally, that language would

affect only the first sentence and would have no effect on the

unchanged subsequent sentences permitting all DWI defendants to

"be released on a work release program." N.J.S.A. 39:4-51. We

rejected that literal reading in Luthe, instead applying the

language to bar work release as the Legislature intended. 383

N.J. Super. at 515-16.

Moreover, the Grabowski judge's literal reading would cause

an absurd result the Legislature never intended. Before Michael's

Law, all DWI defendants, whether convicted of a first, second,

third, or subsequent DWI offense, could not be released from

imprisonment in a county jail or workhouse until their prison term

had been served, and were ineligible for weekend service. N.J.S.A.

39:4-51 (1993); Kotsev, 396 N.J. Super. at 63-64, aff'd o.b., 396

N.J. Super. at 392. However, the judge read Michael's Law as

25 A-0452-16T4
allowing third or subsequent DWI offenders to be released

periodically before their mandatory 180-day term had been served,

while requiring first or second DWI offenders to serve their entire

term continuously.

The judge in Grabowski, and defendant here, could not posit

any reason why the Legislature would weaken the severity of the

180-day term for third or subsequent DWI offenders, or treat them

more leniently than first or second DWI offenders who must

continuously serve their sentences, which can be as long as ninety

days in jail. N.J.S.A. 39:4-50(a)(2). The judge's reading of

Michael's Law contradicts its entire purpose: to gain "greater

deterrence" and impose "increased penalties" on defendants

convicted of third and subsequent DWI offenses by removing every

method of ameliorating the 180-day term. Kotsev, 396 N.J. Super.

at 63-64, aff’d, o.b., 396 N.J. Super. at 391; see State v. Chun,

194 N.J. 54, 74 (2008) (noting that Michael's Law had imposed

"increasingly harsh" penalties for third and subsequent offenders

by imposing mandatory time in jail or inpatient rehabilitation);

State v. Chambers, 377 N.J. Super. 365, 375 (App. Div. 2005)

(ruling that Michael's Law "strengthened the mandatory prison term

for third or subsequent convictions" as part of "the overall thrust

of the 2004 amendments" to "increase the penalties for violators").

26 A-0452-16T4
Crucially, the Law Division ignored the long-standing

principle that "[i]t is axiomatic that a statute will not be

construed to lead to absurd results. All rules of construction

are subordinate to that obvious proposition." State v. Provenzano,

34 N.J. 318, 322 (1961); see Harper, 229 N.J. at 237; Nance, 228

N.J. at 396.

"The goal of all statutory interpretation 'is
to give effect to the intent of the
Legislature.'" In doing so, "we must construe
the statute sensibly and consistent with the
objectives that the Legislature sought to
achieve." We will not adopt an interpretation
of the statutory language that leads to an
absurd result or one that is distinctly at
odds with the public-policy objectives of a
statutory scheme.

[State v. Morrison, 227 N.J. 295, 308 (2016)
(citations omitted).]

For example, in Harper, we rejected a claim that a gun amnesty

statute's "plain language" precluded prosecution because "such a

reading of the law would lead to absurd results that are at odds

with the overall legislative scheme." 229 N.J. at 238. We did

so even though "the legislative history of the amnesty provision

is sparse," because "[o]n the same day the amnesty provision was

enacted, the Governor also signed . . . related laws" strengthening

the gun laws. Id. at 239.

Here, as noted in the Governor's Statement, on the same day

as the Governor signed Michael's Law he also signed two other

27 A-0452-16T4
acts, which the Legislature passed the same day as Michael's Law,

designed to strengthen the DWI laws and increase traffic safety.

Id. at 2. "Florence's Law," L. 2003, c. 314, amended N.J.S.A.

39:4-50 to make it an offense to drive with a blood alcohol level

of 0.08% to 0.10%, while the other law, L. 2003, c. 310, "ban[ned]

the use of hand-held wireless phones in moving vehicles."

Governor's Statement at 2. Moreover, the ample legislative history

of Michael's Law demonstrates that the Grabowski judge's reading

was contrary to the intent of the Legislature to enhance the

penalties for third or subsequent offenders and to prevent them

from getting work release by inserting a restriction to "a first

or second violation" in N.J.S.A. 39:4-51.

We agree that the Legislature employed less than artful

draftsmanship in the placement of that phrase in the first rather

than the second sentence of N.J.S.A. 39:4-51. We also agree

"[c]ourts cannot 'rewrite a plainly-written enactment of the

Legislature.'" State v. Frye, 217 N.J. 566, 575 (2014) (citation

omitted). Nevertheless, where a court "determines that 'a literal

interpretation would create a manifestly absurd result, contrary

to public policy, the spirit of the law should control.'" Ibid.

(citation omitted); see State v. Drake, 444 N.J. Super. 265, 276-

78 (App. Div. 2016) (applying that precept even though the

Legislature's draftsmanship was "'subject to criticism'").

28 A-0452-16T4
Finally, the judge in Grabowski said that under the rule of

lenity, "[p]enal statutes that are open to more than one reasonable

construction must be construed strictly against the State." 388

N.J. Super. at 436. However, "'the rule of strict construction

does not mean that the "manifestations of the Legislature's

intention should be disregarded."'" State v. Carreker, 172 N.J.

100, 115 (2002) (citations omitted). "Instead, the rule of lenity

is applied only if . . . [the] ambiguity is not resolved by a

review of 'all sources of legislative intent.'" State v. Regis,

208 N.J. 439, 452 (2011) (citation omitted). The legislative

history of Michael's Law shows the legislative intent was to

preclude work release, not allow periodic service.

Moreover, "'[e]ven a penal statute should not be construed

to reach a ridiculous or absurd result.'" State v. Jones, 347

N.J. Super. 150, 153 (App. Div. 2002) (quoting State v. Wrotny,

221 N.J. Super. 226, 229 (App. Div. 1987) (citing State v. Gill,

47 N.J. 441, 444 (1966))). The rule of lenity "only applies when

other canons of statutory interpretation fail to yield a clear

result." State v. Twiggs, 445 N.J. Super. 23, 36 (App. Div. 2016),

aff’d, N.J. (2018). Here, the canon against absurd

interpretations yields a clear result, precluding application of

the rule of lenity. See, e.g., Harper, 229 N.J. at 231, 244;

State v. Fleischman, 189 N.J. 539, 550, 553 n.4 (2007).

29 A-0452-16T4
Accordingly, we disapprove the Law Division's decision in

Grabowski. Defendant's remaining arguments lack sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

30 A-0452-16T4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4430895. Public record. Not legal advice.