                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3654-13T1

STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                           May 14, 2015
v.
                                        APPELLATE DIVISION
MICHELLE TOUSSAINT, a/k/a
MICHELE C. TOUSSAINT
MICHELE TOUSSANT,

     Defendant-Respondent.
______________________________

         Submitted February 3, 2015 – Decided May 14, 2015

         Before Judges Reisner, Koblitz and Higbee.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Camden County,
         Indictment No. 13—03-0915.

         Mary    Eva    Colalillo,   Camden   County
         Prosecutor, attorney for appellant (Jason
         Magid, Assistant Prosecutor, of counsel and
         on the briefs).

         Joseph E. Krakora, Public Defender, attorney
         for   respondent    (Michele  E.   Friedman,
         Assistant Deputy Public Defender, of counsel
         and on the briefs).

         The opinion of the court was delivered by

REISNER, P.J.A.D.

     This appeal raises the issue whether a defendant convicted

of violating N.J.S.A. 39:3-40(e) and N.J.S.A. 39:6B-2 may be
permitted to serve her sentence in an electronic monitoring home

detention   program   in   lieu   of   the   county   jail.1    Unlike    the

sentencing statute at issue in State v. French, 437 N.J. Super.

333, 335 (App. Div. 2014), certif. denied, 220 N.J. 575 (2015),

and unlike other provisions in Title 39, N.J.S.A. 39:3-40(e) and

N.J.S.A. 39:6B-2 do not unambiguously require that a convicted

defendant serve the required imprisonment term "without parole"

or   "in    the   county   jail."          Consequently,   applying      well

established principles of statutory construction, including the

rule of lenity, we conclude that the trial court had discretion

to permit defendant to serve her sentence in a home electronic

monitoring program rather than in the county jail.             Accordingly,

we affirm the sentence imposed.            We remand this matter for the

limited purpose of vacating the stay of sentence entered by the

trial court.2


1
  The defense brief advises us that in Camden County, the
electronic monitoring program is operated by the County, as a
way to relieve jail overcrowding.    See U.S. Bureau of Justice
Assistance Criminal Courts Technical Assistance Project, Review
of Alternative Sentencing Programs in Camden County, New Jersey
(July 2006).   Thus, a defendant is sentenced to jail, but is
then interviewed to determine whether she is an appropriate
candidate for home confinement enforced through the electronic
monitoring program.
2
  Defendant pled guilty to violations of N.J.S.A. 2C:12-1.2,
N.J.S.A. 39:3-40, and N.J.S.A. 39:6B-2.   The State's appeal is
limited to the sentence imposed on January 24, 2014, with regard
to N.J.S.A. 39:3-40(e) and N.J.S.A. 39:6B-2. That sentence was
stayed pending appeal.



                                       2                           A-3654-13T1
                                               I

     While       driving       during    a     period        of    license       suspension,

defendant was involved in a motor vehicle accident in which two

pedestrians       were     injured.          Pursuant        to     a    negotiated        plea

agreement, defendant pled guilty to one count of third-degree

endangering an injured victim, N.J.S.A. 2C:12-1.2, for which the

State agreed to recommend two years of probation.                                At a second

plea hearing, on January 24, 2014, she also pled guilty to two

motor vehicle offenses, driving while her license was suspended,

N.J.S.A. 39:3-40, and driving without insurance, N.J.S.A. 39:6B-

2.

     At    the    initial       plea    hearing         on   December      11,    2013,      the

prosecutor recited that the State would recommend an aggregate

sentence of "90 days" for the violation of N.J.S.A. 39:3-40(b)

and (e).     The prosecutor told the judge that "[t]he State would

object to programs," i.e., alternatives to serving the sentence

within    the     county      jail.       The          prosecutor       also   stated       that

defendant    would       be    subject    to       a    fourteen-day       jail    term      for

driving without insurance, which could be imposed concurrent to

the sentence for being involved in an accident during a period

of license suspension.               The judge reminded both counsel that in

addition     to    the        jail     terms       already        discussed,       a    second

conviction       for   driving       while     suspended,         N.J.S.A.       39:3-40(b),




                                               3                                       A-3654-13T1
required a sentence of between one and five days which "must be

served in the county jail."

       The judge explained on the record that he interpreted the

several provisions of N.J.S.A. 39:3-40 as requiring imprisonment

in the county jail when a particular section specified that the

sentence must be served "in the county jail," but as allowing

"programs such as house arrest or the CSLS program . . . when

the   term   of    incarceration       that    is    required   is    characterized

generally as imprisonment or in some other general way."3

      At the sentencing hearing, defense counsel asked the judge

to permit defendant to serve her sentence in                         an alternative

program, because defendant was employed and supporting her son,

and was also living with and caring for her elderly mother.

Defendant also agreed to pay restitution to the two injured

pedestrians.            After   finding       that    the    mitigating      factors

outweighed        the    aggravating      factors,       the    judge     sentenced

defendant     to   two    years   of   probation       for   leaving    an   injured

victim.      For the motor vehicle violations, the judge sentenced

defendant to five days in the county jail, which was subsumed by

five days of jail credit, plus eighty-five days "imprisonment"


3
  We understand the judge was referring to the electronic
monitoring program and the Correctional Supplemental Labor
Service program. See N.J.S.A. 2B:19-5 (authorizing the creation
of labor assistance programs).



                                          4                                  A-3654-13T1
as   to   which   "programs"    would       be    "permissible."        That    is,

defendant could serve the eighty-five days in home confinement

with electronic monitoring.

                                        II

      Our review of the trial court's statutory interpretation is

de novo.     State v. Vargas, 213 N.J. 301, 327 (2013); State v.

Gandhi, 201 N.J. 161, 176 (2010).            In construing the statutes at

issue, we consider their plain language, and if we find the

language    ambiguous     we   consider      the       legislative   history    and

purpose of the enactments.         Gandhi, supra, 201 N.J. at 176-77;

DiProspero v. Penn, 183 N.J. 477, 492-93 (2005).

      We begin with the statutory language.                      N.J.S.A. 39:6B-2

provides that upon a second or subsequent conviction for driving

without insurance, the defendant "shall be subject to a fine of

up to $5,000 and shall be subject to imprisonment for a term of

14 days."     N.J.S.A. 39:3-40(e) specifies that if a defendant

drives during a period of license suspension and is involved in

an accident in which another person is injured, "the court shall

impose a period of imprisonment for not less than 45 days or

more than 180 days."       Both statutes refer to "imprisonment" but

neither statute specifies whether the sentencing court has the

discretion   it   would    normally   have        to    permit   alternatives    to

incarceration in the county jail.                See R. 7:9-1; N.J.S.A. 39:5-




                                        5                                A-3654-13T1
7; N.J.S.A. 2C:44-2(b).           As will be further discussed below,

that is significant, because in other sections of Title 39, and

in cognate provisions of Title 2C concerning automobile-related

offenses,     the    Legislature     has    specified     when     a    term    of

imprisonment must be served "in the county jail" or "without

parole."

      Because the statutory language does not answer the question

presented in this case, we consider the legislative history.

State v. Gelman, 195 N.J. 475, 482 (2008); DiProspero, supra,

183 N.J. at 492-93.            While our research reveals no relevant

history for N.J.S.A. 39:6B-2, the history of N.J.S.A. 39:3-40 is

helpful.     Prior to its amendment in 1982, the statute consisted

of   three   unnumbered       paragraphs.    Only   the    first       and   third

paragraphs are relevant here:

                  No person to whom a driver's license
             has been refused or whose driver's license
             . . . has been suspended or revoked, or who
             has   been   prohibited  from   obtaining  a
             driver's license, shall personally operate a
             motor vehicle during the period of refusal,
             suspension, revocation, or prohibition.

                    . . . .

                  A person violating any provision of
             this section shall be fined not less than
             $200.00 nor more than $1000.00, or be
             imprisoned in the county jail for not more
             than 6 months, or both, provided, that if
             while operating a vehicle in violation of
             this section, such person is involved in an
             accident resulting in personal injury, the



                                       6                                 A-3654-13T1
              punishment shall include             imprisonment        for
              not less than 45 days.

              [L. 1981, c. 38, § 1 (current version at
              N.J.S.A. 39:3-40).]

      In 1982, the statute was amended to "increase[] the general

penalties"     for    "driving   on    the   revoked      list."        Senate     Law,

Public Safety and Defense Committee Statement, Senate, No. 904 —

L.   1982,    c.    45;   Assembly    Judiciary,        Law,   Public    Safety     and

Defense      Committee,    Senate,    No.    904    —    L.    1982,    c.   45.      In

amending the statute, the Legislature divided section 40 into

several separate sections, corresponding to different types of

violations.        As amended, N.J.S.A. 39:3-40 provided that a person

in violation of its provisions would be subject to:

              a. Upon conviction for a first offense, a
              fine of $500.00;

              b. Upon conviction for a second offense, a
              fine of $750.00 and imprisonment in the
              county jail for not more than 5 days;

              c. Upon conviction for a third offense, a
              fine of $1,000.00 and imprisonment in the
              county jail for 10 days;

              d. Upon conviction, the court shall impose
              or extend a period of suspension not to
              exceed 6 months;

              e. Upon conviction, the court shall impose a
              period of imprisonment for not less than 45
              days if while operating a vehicle in
              violation of this section a person is
              involved   in   an  accident  resulting   in
              personal injury.




                                         7                                    A-3654-13T1
          Notwithstanding paragraphs a. through e.,
          any person violating this section while
          under a suspension issued pursuant to R.S.
          39:4-50 shall be subject upon conviction to
          a fine of $500.00, imprisonment in the
          county jail for 90 days, and an additional
          suspension of the license to operate a motor
          vehicle for a period of 5 years.

          [L. 1982, c. 45, § 2 (emphasis added)
          (current version at N.J.S.A. 39:3-40).]

    As the emphasized portions illustrate, all of the other

amended sections providing for imprisonment specified that the

sentence was to be served "in the county jail," while section

(e) only provided for "imprisonment."            The legislative history

does not reveal the reasons for this difference in wording.

Statements on the bill that became subsection (e) indicate that

if a person is involved in an accident where personal injury

occurs, he or she will "be imprisoned for not less than 45

days."    Senate   Law,    Public       Safety   and   Defense   Committee

Statement, Senate, No. 904 — L. 1982, c. 45; Assembly Judiciary,

Law, Public Safety and Defense Committee, Senate, No. 904 — L.

1982, c. 45.

    The   legislative     statements     do   not   address   whether   the

imprisonment mandated by subsection (e) must be a traditional

county jail sentence or whether some variation is permitted.

However, the sentences in section 40 for which the Legislature

specified incarceration "in the county jail" were all either




                                    8                             A-3654-13T1
very short terms of a few days, or related to driving during a

license        suspension      for   driving     while   intoxicated          (DWI),     an

offense the Legislature has treated as particularly egregious.

See      N.J.S.A.       2C:40-26(c)     (requiring       180     days     imprisonment

without parole for a second or subsequent conviction for driving

while suspended for DWI); French, supra, 437 N.J. Super. at 336-

37.

         In 1986, N.J.S.A. 39:3-40(e) was amended to apply only when

the personal injury was to another person.                     L. 1986, c. 38.         The

statute had been interpreted as increasing the penalty even if

the injury was only to the defendant driver.                             See State v.

Graney, 174 N.J. Super. 455, 459 (App. Div. 1980).                           Apparently,

that construction was not what the Legislature intended, and

accordingly, the Legislature clarified the statute to specify

that imprisonment shall be imposed only if someone other than

the defendant was injured in the accident.                         See Senate Law,

Public Safety and Defense Committee Statement, Senate, No. 1207

—   L.    1986,    c.    38;   Assembly      Law,   Public     Safety,       Defense   and

Corrections Committee Statement, Senate, No. 1207 — L. 1986, c. 38.

          In 2001, N.J.S.A. 39:3-40(e) was amended to provide that

upon conviction, a defendant was to be imprisoned for not "more

than 180 days."           L. 2001, c. 213.          However, again, the language

"in      the   county    jail,"      which    already    appeared       in    the   other




                                             9                                   A-3654-13T1
subsections,     was   not   added.     In   this    same    time   frame,      the

Legislature enacted N.J.S.A. 2C:40-22, which made it a crime for

a   defendant,   while   driving      with   a   suspended    license,     to    be

involved in an accident causing death or serious bodily injury

to another person.       See Senate Law and Public Safety Committee

Statement, Senate, No. 1108 — L. 2001, c. 213; Assembly Law and

Public Safety Committee Statement, Senate, No. 1108 — L. 2001,

c. 213.    However, this amendment did not specify a particular

sentence; rather, it simply defined the crime as of the third

degree if the accident caused death, or fourth degree if the

victim was seriously injured.         See N.J.S.A. 2C:40-22(a), (b).

      By contrast, in 2004, the Legislature amended the penalties

for repeat DWI offenders, by requiring third-time offenders to

spend at least 90 days in the county jail:

           For   a   third   or   subsequent   violation,
           a person shall be subject to a fine
           of $1,000.00, and 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   90    days,   served
           participating in a drug or alcohol inpatient
           rehabilitation   program   approved   by   the
           Intoxicated Driver Resource Center.

           [N.J.S.A. 39:4-50(a)(3) (emphasis added).]

      In State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006), we

compared the amended version of the provision to the previous

version,   which   had   only   provided     for    "imprisonment"     with      no



                                       10                                A-3654-13T1
specification as to where the imprisonment was to be served.

Addressing the amendment we concluded:     "The 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 also

noted   legislative   history   that   explicitly     indicated     the

Legislature's intent to prohibit work release:

          As the mandate is clear, we need not resort
          to   extrinsic    evidence    to   discern   the
          Legislature's    intent    in    enacting   this
          amendment. But were we to do so in order to
          discern the "internal sense of the law," the
          result would be the same. The statement on
          the amendment from the Senate Law and Public
          Safety   and   Veterans'    Affairs    Committee
          expressly asserts: "The [amendment] . . .
          makes drunk drivers who are required to
          serve the mandatory term of imprisonment
          ineligible to participate in a work release
          program."     The Assembly Law and Public
          Safety Committee Statement is comparable.
          The    Governor's    official     news   release
          reiterates the statements provided by both
          the    Assembly    and    Senate     Committees:
          "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."

          [Id.   at   514  (alteration     in    original)
          (citations omitted).]

    Other provisions of the same statute, known as Michael's

Law, specifically prohibit the administrator of a county jail

from releasing a defendant who has been committed to the jail




                                11                            A-3654-13T1
for a first or second DWI offense, unless a judge authorizes

release to a work release program.                     See N.J.S.A. 39:4-51.

       In 2009, the Legislature enacted N.J.S.A. 2C:40-26, making

it     a     crime    to    violate    N.J.S.A.         39:3-40     by     driving   while

suspended for a repeat DWI offense, or for a second conviction

for driving while suspended for DWI.                         In N.J.S.A. 2C:40-26(c),

the        Legislature      signaled   its        understanding         that,    absent     a

specific prohibition, offenders sentenced to imprisonment might

be eligible for various alternative programs:

               Notwithstanding the term of imprisonment
               provided   under  N.J.S.   2C:43-6  and  the
               provisions of subsection e. of N.J.S. 2C:44-
               1, if a person is convicted of a crime under
               this section the sentence imposed shall
               include a fixed minimum sentence of not less
               than 180 days during which the defendant
               shall not be eligible for parole.

               [N.J.S.A. 2C:40-26(c) (emphasis added).]

       In French, supra, we construed this provision as requiring

defendants       to    be    incarcerated         in    the    county    jail,    with    no

alternative          sentence   permitted.             In   that   case,    we   held     the

defendant's sentence to a drug treatment program in lieu of jail

was an illegal sentence.               We relied on the specific language

"shall not be eligible for parole."                         Supra, 439 N.J. Super. at

337.        We reached the same conclusion in State v. Harris, 439

N.J. Super. 150 (App. Div. 2015), concluding that the "without




                                             12                                   A-3654-13T1
parole" language precluded a defendant from being sentenced to

an electronic monitoring program or a labor assistance program.4

       Based on the foregoing discussion, we find it clear that

when the Legislature intends that a sentence for DWI, driving

with     a   suspended       license,      or      other       motor     vehicle    related

offense,       be     served       entirely     in       a     county     jail,    with     no

opportunity for alternative programs operated either under the

auspices of the court or the county correctional department, it

knows    how    to    express       that   intent.            N.J.S.A.    39:3-40(e)      and

N.J.S.A.       39:6B-2      specify    the      length        of   the   sentence     for    a

violation       but    do    not    contain        the       "without    eligibility      for

parole" or "in the county jail" language addressed in French and

Luthe.       Moreover,       N.J.S.A.      39:3-40(e)           does     not   contain    the

language even though four other subsections within section 40

do.     In interpreting statutes, we "cannot insert language that

the Legislature could have included . . . but did not."                              Jersey

Cent. Power & Light Co. v. Melcar Utility Co., 212 N.J. 576, 596

(2013); see DiProspero, supra, 183 N.J. at 493.




4
  While N.J.S.A. 2C:40-26(c) is aimed at repeat offenders,
N.J.S.A. 39:3-40 addresses first offenders who drive while their
licenses are suspended for DWI.      Section 40 provides for a
ninety-day sentence to be served "in the county jail."     Thus,
the Legislature used similar language in requiring DWI offenders
who drive while suspended for DWI to serve their entire
sentences in a jail.



                                              13                                    A-3654-13T1
      Moreover,        it    is    well    established          that   Title      39   motor

vehicle      laws      are     quasi-criminal         in        nature,     and     persons

prosecuted under Title 39 are entitled to the same protections

as criminal defendants.                 State v. Widmaier, 157 N.J. 475, 494

(1999).        Under the rule of lenity, ambiguities in a criminal

statute are resolved in favor of the defendant.                        State v. Grate,

220   N.J.     317,    330    (2015)      (the    rule     of    lenity     applies    when

interpreting a penal statute, if its meaning cannot clearly be

discerned       from    its       plain    language      and     extrinsic        sources);

Gelman, supra, 195 N.J. at 482-83; State v. Perry, 439 N.J.

Super. 514, 529-30 (App. Div. 2015); State v. Eldakroury, 439

N.J. Super. 304, 310 (App. Div. 2015).                      In this case, where it

is unclear whether the Legislature intended that the sentences

imposed under N.J.S.A. 39:6B-2 and N.J.S.A. 39:3-40(e) must be

served    in    jail    with      no    alternative      options,      we    resolve     the

ambiguity in favor of defendant.

      The State argues that construing these statutes to permit

sentences to be served in home detention programs is contrary to

their purpose.         The State contends that N.J.S.A. 39:3-40(e) and

N.J.S.A. 39:6B-2 seek to punish repeat offenders more harshly in

order to serve the purpose of deterrence.                         It is true that the

statutes     are    intended       to     provide   more    serious       penalties      for

repeat offenders.             See Senate Law, Public Safety and Defense




                                             14                                    A-3654-13T1
Committee Statement, Senate, No. 904 — L. 1982, c. 45; Assembly

Judiciary, Law, Public Safety and Defense Committee, Senate, No.

904 — L. 1982, c. 45.           However, even if alternative programs are

permitted, this purpose is served, because N.J.S.A. 39:3-40(e)

and N.J.S.A. 39:6B-2 require longer sentences than the brief

jail terms imposed on less serious offenders.                             See N.J.S.A.

39:3-40; N.J.S.A. 39:6B-2.

       The State's reliance on State v. Pickens, 124 N.J. Super.

193 (App. Div.), certif. denied, 63 N.J. 581 (1973), and State

v. Fearick, 132 N.J. Super. 165 (App. Div. 1975), aff’d, 69 N.J.

32 (1976), is misplaced.                The references to a mandatory jail

sentence in those cases are tangential to the result.                            Pickens

rejected     the   defendant's        argument         that    N.J.S.A.    39:3-40    was

unconstitutional         because      it     imposed      criminal       penalties    for

negligence,        and     also       held       that     the     statute      was    not

unconstitutionally vague.              Pickens, supra, 124 N.J. Super. 193.

In Fearick the court rejected the argument that the enhanced

sentence for accidents resulting in personal injury only applied

when   the    defendant        driver      was    at    fault     for    the   accident.

Fearick,     supra,      132   N.J.     Super.     165,       168-69.     Neither    case

addressed the issue raised on this appeal.                              Moreover, those

cases were decided when the pre-1982 version of N.J.S.A. 39:3-40




                                             15                                 A-3654-13T1
was in effect.5   The State's citation to State v. Lima, 144 N.J.

Super. 263 (App. Div. 1976), certif. denied, 73 N.J. 64 (1977),

is equally unpersuasive, because that case addressed a charging

issue under N.J.S.A. 39:6B-2, and not the manner in which the

sentence was to be served.

     In summary, we conclude that both N.J.S.A. 39:3-40(e) and

N.J.S.A. 39:6B-2 authorize the sentencing court to impose a term

of imprisonment that may be served in an alternative way such as

home confinement under electronic monitoring.

     Affirmed.




5
   Those cases, however, suggest possible reasons why the
Legislature might have wanted to allow trial judges some
discretion to permit sentencing alternatives under N.J.S.A.
39:3-40(e).    For example, a defendant who has no driver's
license because he has a disqualifying medical condition, but
who nonetheless drives a car, is subject to a jail term if his
car is rear-ended by a drunk driver and the latter is the only
one injured in the accident.      See Fearick, supra, 132 N.J.
Super. at 167; Pickens, supra, 124 N.J. Super. at 196.




                                16                       A-3654-13T1
