Reduced Jail Term: 180 Days No Parole to 10 Days on DWS for Second Refusal

Yesterday, I achieved a considerable result for a client in a Middlesex County municipal court who was staring down a 180-day jail sentence for Driving While Suspended. If that seems like a steep penalty for a traffic ticket, you’re right. That’s because a Driving While Suspended ticket (N.J.S.A. 39:3-40) issued to a driver who is suspended for a second or subsequent DWI or Refusal is actually an indictable fourth degree offense under N.J.S.A. 2C:40-26.

N.J.S.A. 2C:40-26(b) provides that certain drunk driving offenders who drive with a suspended driver’s license are guilty of a fourth degree crime. With regards to sentencing, any violation of the statute would lead to a mandatory 180 days in jail, with no parole eligibility. This means that my client, if found guilty, would have been forced to serve the entire six (6) months in jail with no hope for early release.

In handling this case, I successfully negotiated a plea agreement with the municipal court prosecutor, and conferenced it with the municipal court judge to have the case kept as simply a traffic violation under New Jersey’s Title 39 Motor Vehicle Regulations. After a discussion with the county prosecutor, the municipal court judge entered our plea agreement into the record, and the client was left with just a 10 day jail sentence – the minimum for DWS on a first DWI. The client was relieved that although he would be losing his license for a year, he wouldn’t be spending nearly half of that time behind bars.


  1. Frank:

    I am a fellow attorney defending a 2c:40-26 in Middlesex County in Superior Court. Was you driver charged under the 2c, or the 39:3-40? my client was charged with the 39:3-40, but the next day, after consulting the municipal prosecutor, the officer came back and issued the 2c and kicked it up to the county. The M’sex county pros is taking a very hard line, and I am being told that even if accepted into Drug Court, my client will still do a 180 first, which is no bargain.

    Any insights? Thank you.


    • Hi Henry,

      My client was charged with only the 3-40 at the time of our first appearance. The prosecutor noticed the enhancement scenario, but consented to our request of pleading out to the 3-40. The Judge, however, conferenced the case and with a little luck and some compelling circumstantial arguments, I’m pretty sure the Judge contacted the county prosecutor’s office, and got the case sent up/remanded all at once. It was a pretty nice break, but we handled it all through the municipal court on this particular case.

      As for your matter, has PTI been explored/already rejected? We have had success with PTI and 2C:40-26 cases in the past, but I don’t recall whether those were in Middlesex. Feel free to call me if you want to kick around any other ideas. 1-877-450-8301

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