The New Jersey Supreme Court has agreed to decide if those convicted of driving on a suspended license may serve their mandatory 180-day jail terms through intermittent incarceration.

Prosecutors are seeking to overturn a published ruling from the Appellate Division that said there is nothing to bar trial judges from allowing those drivers to serve their sentences on an intermittent basis, so long as their jail stays total 24 hours each.

The Supreme Court granted a petition for certification in the case, State v. Rodriguez, earlier this month, on Aug. 1.

The April 2018 decision affirmed lower court rulings allowing five Camden County drivers who had been convicted of the fourth-degree offense of driving while suspended—Rene Rodriguez, Elizabeth Colon, Eric Lowers, Stephen Nolan and Courtney Swiderski—to satisfy their jail sentences in this way.

Appellate Division Judge Mitchel Ostrer. joined by Judges Jack Sabatino and Lisa Rose, said at the time that intermittent sentences, such as Friday night through Sunday, allow those drivers to continue to be employed, assuring continued salary and benefits such as health insurance, and to continue to take care of their families. Such was the case with with most of the drivers involved in the appeal, the court said.

The five cases are not connected; they were consolidated for appeal.

“The Appellate Division made the right decision, and we believe the Supreme Court will ultimately uphold that decision,” said Marissa Costello of Costello & Whitmore in Marlton, who represents Lowers and Nolan. “We don't believe the state's position is going to stand up.”

Mark Oddo represents Swiderski.

“This is a very big question,” said Oddo, of Dubois, Sheehan, Hamilton, Levin & Weissman in Camden.

He said lawyers from other counties appear to be watching to see the outcome. “My sense is that this is a major issue throughout the state. This will have a statewide impact.”

Rodriguez's lawyer, Hainesport solo Mario Persiano, has retired and could not be reached. It does not appear that Colon is currently represented by counsel.

Assistant Camden County Prosecutor Jason Magid is leading the appeal for the state. He did not return a call seeking comment.

The Appellate Division in its ruling last April said: ”The state contends the sentences are illegal. It argues a minimum period of parole ineligibility precludes an intermittent sentence. We disagree.”

Prosecutors argued that the intermittent sentences thwart the Legislature's purpose to hand down punitive sentences, but the statute lacks language requiring that the 180-day sentence be served consecutively, and states only that 180 days must be served, Ostrer said.

“We find no basis for the argument that an indeterminate sentence … violates the parole ineligibility terms,” he said. “Simply put, periodic release under an indeterminate sentence is not parole.”

Ostrer noted that intermittent incarceration spreads the sentence out over a longer period, which itself could serve as a deterrent for further violations—by reminding offenders each time they surrender that they still may have many days and nights to serve before their sentences are complete.

Nevertheless, he said, allowing the indeterminate sentences allows these offenders to keep their jobs and perhaps avoid financial and emotional burdens.

“Had the legislature defined the sentence in terms of months, one could make a stronger argument that the legislature intended the days to be served consecutively,” Oster said. “The legislature did not.”

In a related issue, the Appellate Division last month decided that intermittent jail service was “not an option” for those sentenced to jail on multiple drunken-driving offenses.