Municipal court prosecutor discretion to prosecute Marijuana possession cases
Submitted by New Jersey Drug Lawyer, Jeffrey Hark.
On August 29, 2018 the New Jersey state AG’s office issued guidelines for municipal court prosecutors to follow with regards to prosecuting/negotiating and or dismissing marijuana cases in the municipal court. I have attached a copy of those guidelines here with this blog however I summarize the same guidelines here.
Initially the AG’s outlines the requirement that the Municipal court prosecutor cannot make a uniform and categorical decision not to prosecute any marijuana cases. This would be a violation of state law, the violation of the prosecutors’ obligation to enforce the laws as written on the books in the state as well as a abdication of his professional responsibility. As a result the prosecutor must take position that every case must be reviewed on its individual merits to make a determination as to whether “justice” is serviced by continuing to prosecute the case as opposed to amending the original charge to a lesser offense or to request a dismissal.
The AG’s office turns to municipal court Rule 7:6- 2D which enables the prosecutor to negotiate and enter into the negotiations and a plea agreement so long as the “interest of justice standard“ met. The guidelines then go on to reinforce the municipal court prosecutor‘s ability to Amanda dismiss a drug charge for “good“. The guidelines identify good cause as “a well-founded the termination of the state lack sufficient evidence to proceed and be successful in that prosecution if and when the evidence does not support the charge”. In other words this means if there is insufficient evidence The prosecutor always retains his discretion to dismiss charges in the municipal court. Now the Attorney General has outlined an exhaustive list of other factors that the municipal prosecutor can consider in order to “seek justice quote with regards to each individual case”. Those factors are:
- The age of the defendant, and the nature and extent of the defendant’s prior criminal record;
- The nature and circumstances of the offense and the arrest;
- Adverse employment or military enlistment consequences (including hindering or precluding future employment, access to professional/occupational licensing, or ability to enlist in the armed services);
- Adverse immigration consequences;
- Adverse educational consequences (including potential removal from school or student housing and hindering or precluding access to student financial assistance);
- Adverse housing and other government benefit consequences (including hindering or precluding future access to public housing and monetary benefits from the government);
- Adverse familial consequences (including parenting/family status changes and financial or other burdens for family members); and
- Other factors identified in the National Prosecution Standards published by the National District Attorneys Association.
The AG’s addition the guidelines also bring the municipal court judge into the decision-making process. Any final amendment or dismissal must be accepted by the court and the prosecutor must personally represent on the record the reason for the motion to amend or dismiss with the judge questioning the prosecutor of his intentions, the factual basis, and the prosecutor’s ethical obligations to the court and the state. In other words the judge retains his discretion in approving any amendment and or dismissal based on the facts of the case as well. These guidelines also allow a prosecutor to use the recognized ‘exceptional/compelling circumstances’ used to make a determination as to whether or not a defendant’s license should be suspended arising out of a drug offense.
Interestingly, there is also a reference to consolidating a defendant charges in numerous municipalities arising out of one event into one court and placing the defendant in a diversionary program as an additional basis to consider consolidating actions and protecting of the defendant from numerous prosecutions.
In conclusion, it appears that this memorandum merely authorizes the municipal prosecutor to exercise discretion and negotiate a plea agreement in Municipal Court marijuana cases. However, it does not create a new set of standards or procedures or ability for a prosecutor to flatly dismiss drug cases. It merely reiterates long-standing procedure and good faith factual examination of the individual particular cases to charge the prosecutor with “seeking justice”. What you need is an attorney with experience and knowledge of the existing case law, the prosecutors in your town, and the ability to communicate what those individual facts and circumstances are for each case in order to successfully “negotiate“ the amendment and were dismissal of weird charges so your job, your life, your children, your wife, and everything else around you are not affected by getting pulled over for having insignificant amounts/ minimum amounts of marijuana in your car.
At Hark and Hark we handle these types of cases in every municipal and Superior Court In the state of New Jersey. We have the knowledge training and experience to help you successfully navigate these cases in order to ensure the best and most advantageous results for your individual facts and circumstances. Please call us at 1866- Hark-LAW.
Jeffrey S. Hark, Esq.