I have been charged with a drug possession offense. Do I want to enroll in drug court?

Am I entitled to drug court?

What are the benefits of drug court?

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

New Jersey drug court statute is identified at NJSA 2C:35-14 and is a rehabilitation program for drug and alcohol dependent persons subject to a presumption of incarceration or a mandatory NJSA minimum period of parole ineligibility.  The following is the criteria for imposing the “special probation” drug court sentence, who are the ineligible offenders; mandatory commitment to residential treatment facilities or participation in a nonresidential treatment program; and finally rules concerning violations of drug court and presumption of revocation; brief incarceration in lieu of permanent revocation.

2C:35-14. Rehabilitation Program for Drug and Alcohol Dependent Persons Subject to a Presumption of Incarceration or a Mandatory Minimum Period of Parole Ineligibility; Criteria for Imposing Special Probation; Ineligible Offenders; Prosecutorial Objections; Commitment to Residential Treatment Facilities or Participation in a Nonresidential Treatment Program; Presumption of Revocation; Brief Incarceration in Lieu of Permanent Revocation.

a.Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1. Nothing in this section shall be construed to prohibit a person who is eligible for probation in accordance with N.J.S.2C:45-1 due to a conviction for an offense which is not subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility from applying for drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1; provided, however, that a person in need of treatment as defined in subsection f. of section 2 of P.L.2012, c.23 (C.2C:35-14.2) shall be sentenced in accordance with that section. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court’s own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:

(1)the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and

(2)the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and

(3)the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person’s drug or alcohol dependency; and

(4)substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and

(5)the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and

(6)the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one of the offenses is a crime of the first or second degree; and

(7)the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and

(8)a suitable treatment facility licensed and approved by the Division of Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and

(9)no danger to the community will result from the person being placed on special probation pursuant to this section.

In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment. The court shall give priority to a person who has moved to be sentenced to special probation over a person who is being considered for a sentence to special probation on the court’s own motion or in accordance with the provisions of section 2 of P.L.2012, c.23 (C.2C:35-14.2).

As a condition of special probation, the court shall order the person to enter a residential treatment program at a facility licensed and approved by the Division of Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation. In determining whether to order the person to participate in a nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision.

Recently, the New Jersey legislature created a mandatory review of numerous drug related criminal charges to determine if the person charged/ the defendant could be eligible for a mandatory drug court participation. The thought process behind this was any drug court participation could be better than a state prison term. As a result, drug possessory offense defendants are mandatory referred to the initial drug court screening team to determine if they are ‘clinically’ and ‘statutorily’ entitled to participate in this program.

If you are found to be ‘legally’ and ‘clinically’ eligible your case is referred to the drug court scheduling team and you will be required to enter a guilty plea to the criminal charge with two types of sentencing. The first sentence is your presumptive state prison term and the second is in an “alternative “sentence to drug court. The practical effects of this guilty plea is to deny you the ability to fight the underlying charges and proceed to trial if you decide to take advantage of and participate in the drug court alternative sentence. In other words, if you are found guilty of violating the drug court conditions, on one or more occasions  you will go to State prison. Said a third way, you do not get to go back and fight the original criminal charges after you have agreed to participate and take it vantage of the drug court alternative sentence and violated the drug court guidelines.

What are the conditions of drug court and can I be successful in them? The conditions of drug court obviously include weekly drug testing, court appearances once if not twice a week for mandatory group meeting sessions, drug court team evaluations concerning your ongoing progress, any counseling and therapy deemed appropriate by the TASC evaluator, maintaining employment and or schooling, paying your fines, curfew requirements, and any other term the drug court team and judge deems appropriate for your individual circumstances. It could include additional psychiatric and psychological counseling, childcare/family care counseling and training, anger management, as well as restitution issues.

The key for you to understand is that all of these obligations will be discussed with you and provided in your initial drug court enrollment agreement and will be enforced to the letter. All of the conditions are taken very seriously because you are being afforded the opportunity to participate in all of the counseling treatment therapy as opposed to going to state prison. Although these conditions and counseling programs cost money they are for less than the cost of housing a defendant in state prison for one year.

Hark & Hark is a litigation and criminal defense law office that handles criminal, civil, and workers compensation cases throughout New Jersey.  Please call us to discuss any of the issues, violations, and terms outlined in this blog.  We gladly accept must payment plans and will be happy to work with you regarding your criminal matters and payments terms. 

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office