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As part of a long running effort to reduce the state’s prison population, New Jersey’s sentencing guidelines include a presumption of non-incarceration for many minor crimes. A presumption of non-incarceration (also called presumption of non-imprisonment, or PNI) means that, for some crimes, it is assumed that a conviction will not mean a jail sentence. For the most part, this applies to most first offenses for third-degree or lesser crimes.

N.J.S.A. 2C:44-1(e) instructs: “The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an

offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his [or her] imprisonment is necessary for the protection of the public under the criteria set forth” in N.J.S.A. 2C:44-1(a) (the aggravating factors).

Exceptions to Presumption of Non-Incarceration

While most third or fourth degree crimes have a PNI for a first offense, there are some exceptions. For example, PNI does not apply if the court finds that the defendant is involved in organized criminal activity. PNI is also void if the offense involved an act of domestic violence in the presence of a child under 16 years of age.

Additionally, there are some third- and fourth-degree crimes that are exempt from PNI. These include:

• Third degree theft of a motor vehicle (N.J.S.A. 2C:20-2);
• Third degree eluding (N.J.S.A. 2C:29-2);
• Strict liability vehicular homicide (N.J.S.A. 2C:11-5.3);
• Third degree using a false government document (N.J.S.A. 2C:21-2.1(c));
• Third degree distributing, manufacturing, or possessing an item containing personal identifying information of another person (N.J.S.A. 2C:21-17.3(b));
• Third or fourth degree bias intimidation (N.J.S.A. 2C:16-1);
• Third degree assault (N.J.S.A. 2C:12-1(b)(12));
• Third degree knowingly leaving the scene of an accident that results in serious bodily injury to another person (N.J.S.A. 2C:12-1.1);
• Third or fourth degree gang criminality (N.J.S.A. 2C:33-29); or
• Third or fourth degree promotion of organized street crime (N.J.S.A. 2C:33-30).
• The following offenses also provide that the presumption of non-imprisonment shall not apply:
• Leaving the scene of a boating accident (N.J.S.A. 2C:11-5.2(a));
• Strict liability vehicular homicide (N.J.S.A. 2C:11-5.3(b)) (effective July 21, 2017);
• A first offense of third degree interference with the custody of a child (N.J.S.A. 2C:13-4(a));
• Possession of 100 or more items depicting the sexual exploitation or abuse of a child (Note that the court may make an exception if “imprisonment would be a serious injustice which overrides the need to deter such conduct by others” (N.J.S.A. 2C:24-4(b)(5)(b));
• Corrupting or influencing a jury (N.J.S.A. 2C:29-8(c));
• Pattern of official misconduct, first time offender (N.J.S.A. 2C:30-7(b)); and
• Drug distribution to a minor or a pregnant female (N.J.S.A. 2C:35-8).

How Can You Ensure You Avoid Imprisonment?

If you or a loved one has been charged with a criminal offense in New Jersey, you need the help of an attorney right away to maximize your chances of avoiding jail time and other serious consequences. The lawyers of the Rosenblum Law are skilled criminal defense attorneys with experience helping people in similar situations. Email Rosenblum Law or call 888-815-3649 today for a free consultation about your case.