New Jersey Drug Arrest Series: Special Alternatives (10 of 10)

Copyright (c) 2009 Frank Luciano

There are limited alternatives to the heavy-handed penalties authorized by the Drug Statute. Those alternatives are usually reserved for first-time offenders who are charged with some of the less serious offenses under the Drug Statute or individuals who are drug dependent. Another alternative involves a negotiated plea agreement.

A. Conditional Discharge

One has been charged with a disorderly persons or a petty disorderly persons offense under the Drug Statute and has not been previously convicted of any other drug related offense in this state or elsewhere, a trial court may allow participation in a supervised treatment program (Program), providing that presence in the community or in the Program will not impose a danger to others. This is a once-in-a-lifetime opportunity. Although, a prior juvenile drug related offense is not an absolute disqualifier, it can be used for purposes of determining whether there is a danger to the community.

The Program is available prior to trial and after trial, but before sentence. If an application for the Program is made after a plea of guilty or a finding of guilt, the court must suspend driving privileges for a period of not less than 6 months and not more than 2 years. A license loss will not ordinarily occur if the application for the Program is made prior to a plea or trial. The ultimate decision, however, is within the trial court's discretion.

As a condition of the Program, the trial court may require participation in an in-patient drug rehabilitation facility for a period that cannot exceed the maximum period of imprisonment for the offense (i.e. six months for a disorderly persons offense and 90 days for a petty disorderly offense). A term of supervised treatment in the Program can not exceed three years. Upon successful completion of the Program, the case will be dismissed and the arrest or conviction record expunged within six months after the order of dismissal. Note that a conditional discharge will work as a bar to obtaining an expungement on any other convictions in the future.

B. Intensive Supervision Program

For one who is drug or alcohol dependent and has been convicted of certain offenses under the Drug Statute, the court can order placement in an intensive supervision program. (ISP). As a condition of the ISP, the court will require entry into a licensed and approved in-patient drug rehabilitation facility for a minimum term of 6 months. Once released, there will be close and continuous monitoring by the court, the county probation office and treatment specialists to the extent that one's daily schedule will be carefully controlled. The participant will be responsible to pay the costs of participating in the ISP, grounded upon his/her income and wealth.

In order to place one in the ISP, the court must examine a number of factors produces by the prospective participant, including that: (1) a professional has determined that one is drug or alcohol dependant and will benefit from treatment; (2) he/she was dependent upon alcohol or drugs at the time of the offenses; (3) the offense was committed while under the influence of a CDS or alcohol; (4) no firearm was used; and, (5) he/she will not create a danger to community by being placed on probation.

A violation of an ISP sentence, may result, in the court's discretion, to imprisonment. A recent decision by the New Jersey Supreme Court has seriously expanded some of the eligibility criteria under the ISP section of the Drug Statute.

C. Plea Agreements

At some point during the litigation process, it may be decided that a person's best interest would not be served by proceeding to trial. If that decision is made, and only he/she can make that decision, the defense will attempt to negotiate a plea agreement or "plea bargain" to reduce his/her criminal liability. These negotiations will be directed at reducing the sentence, reducing the grade of the offense charged, or both. The level of success in this effort will be influenced by the nature of the offense charged, the experience and capabilities of your lawyer, the merit of any potential defenses and mitigating circumstances.

On the municipal court level, there is a prohibition against plea agreements where the charge is possession of marijuana or hashish, drug paraphernalia or being under the influence of a CDS. There are certain limited exceptions to this rule, however.

D. Expungements

Conviction of certain offenses under the Criminal Code can be expunged, that is removed from one's record, provided that there are no further convictions for a period of time as defined in the Code. If an expungement is grantegranted the conviction is "deemed not to have occurred." Records of a conviction are not destroyed, but are isolated and made available only to law enforcement agents under limited circumstances. A person who has been convicted of a disorderly persons offense and was over 21 at the time, must wait five years before being able to petition the court for an expungement. If the conviction was of an indictable offense, the waiting time is ten years.

A person who was 21-years-of- age or younger, at the time of conviction, and was convicted of certain enumerated offenses under the Drug Statute, may obtain an expungement one year after the date of conviction, termination of probation or parole, or a discharge from custody, whichever is later. As explained earlier, a person who has received a conditional discharge cannot obtain an expungement of any other drug-related conviction.

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