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A1791
ASSEMBLY, No. 1791
STATE OF NEW JERSEY
222nd LEGISLATURE
�
PRE-FILED FOR INTRODUCTION IN THE 2026 SESSION
Sponsored by:
Assemblyman ANTHONY S. VERRELLI
District 15 (Hunterdon and Mercer)
SYNOPSIS
���� Establishes special probation drug court eligibility
for persons with certain previous criminal convictions.
CURRENT VERSION OF TEXT
���� Introduced Pending Technical Review by Legislative
Counsel.
��
An Act
concerning special probation eligibility for persons with
certain
previous criminal convictions, and
amending N.J.S.2C:35-14.
����
Be It
Enacted
by the Senate and General Assembly of
the State of New Jersey:
���� 1.��� N.J.S.2C:35-14 is
amended to read as follows:
���� 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; 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,
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 use disorders
treatment and monitoring will serve to benefit the person by addressing the
person's 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;
unless any previous conviction of a crime of the first or
second degree, not including any conviction for a crime listed in paragraph
(7), is at least five years old, and at least five years have expired from
the date of the person�s satisfactory completion of probation or parole, or
release from incarceration, whichever is later;
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 Mental Health and 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 Mental Health
and Addiction Services in the Department of Human Services or a program of
nonresidential treatment by a licensed and approved treatment provider, which
program may include the use of medication-assisted treatment as defined in
paragraph (7) of subsection f. of this section, 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.
���� b.��� A person shall not be
eligible for special probation pursuant to this section if the person is
convicted of or adjudicated delinquent for:
���� (1)�� a crime of the first
degree;
���� (2)�� a crime of the first or
second degree enumerated in subsection d. of section 2 of P.L.1997, c.117
(C.2C:43-7.2), other than a crime of the second degree involving N.J.S.2C:15-1
(robbery) or N.J.S.2C:18-2 (burglary);
���� (3)�� a crime, other than that
defined in section 1 of P.L.1987, c.101 (C.2C:35-7), for which a mandatory
minimum period of incarceration is prescribed under chapter 35 of this Title or
any other law; or
���� (4)�� an offense that involved
the distribution or the conspiracy or attempt to distribute a controlled
dangerous substance or controlled substance analog to a juvenile near or on
school property.
���� c.���� (Deleted by amendment,
P.L.2012, c.23)
���� d.��� Except as otherwise
provided in subsection j. of this section, a person convicted of or adjudicated
delinquent for a crime of the second degree or of a violation of section 1 of
P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated
delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar
offense under any other law of this State, any other state, or the United
States, who is placed on special probation under this section shall be
committed to the custody of a residential substance use disorders treatment
facility licensed and approved by the Division of Mental Health and Addiction
Services in the Department of Human Services.� Subject to the authority of the
court to temporarily suspend imposition of all or any portion of the term of
commitment to a residential treatment facility pursuant to subsection j. of
this section, the person shall be committed to the residential treatment
facility immediately, unless the facility cannot accommodate the person, in which
case the person shall be incarcerated to await commitment to the residential
treatment facility.� The term of such commitment shall be for a minimum of six
months, or until the court, upon recommendation of the treatment provider,
determines that the person has successfully completed the residential treatment
program, whichever is later, except that no person shall remain in the custody
of a residential treatment facility pursuant to this section for a period in
excess of five years.� Upon successful completion of the required residential
treatment program, the person shall complete the period of special probation,
as authorized by subsection a. of this section, with credit for time served for
any imprisonment served as a condition of probation and credit for each day
during which the person satisfactorily complied with the terms and conditions
of special probation while committed pursuant to this section to a residential
treatment facility.� Except as otherwise provided in subsection l. of this
section, the person shall not be eligible for early discharge of special
probation pursuant to N.J.S.2C:45-2, or any other provision of the law.� The
court, in determining the number of credits for time spent in residential
treatment, shall consider the recommendations of the treatment provider.� A
person placed into a residential treatment facility pursuant to this section
shall be deemed to be subject to official detention for the purposes of
N.J.S.2C:29-5 (escape).
���� e.���� The probation
department or other appropriate agency designated by the court to monitor or
supervise the person's special probation shall report periodically to the court
as to the person's progress in treatment and compliance with court-imposed
terms and conditions.� The treatment provider shall promptly report to the
probation department or other appropriate agency all significant failures by
the person to comply with any court imposed term or condition of special
probation or any requirements of the course of treatment, including but not
limited to a positive drug or alcohol test, which shall only constitute a
violation for a person using medication-assisted treatment as defined in
paragraph (7) of subsection f. of this section if the positive test is unrelated
to the person's medication-assisted treatment, or the unexcused failure to
attend any session or activity, and shall immediately report any act that would
constitute an escape.� The probation department or other appropriate agency
shall immediately notify the court and the prosecutor in the event that the
person refuses to submit to a periodic drug or alcohol test or for any reason
terminates the person's participation in the course of treatment, or commits
any act that would constitute an escape.
���� f.���� (1)� Upon a first
violation of any term or condition of the special probation authorized by this
section or of any requirements of the course of treatment, the court in its
discretion may permanently revoke the person's special probation.
���� (2)�� Upon a second or
subsequent violation of any term or condition of the special probation
authorized by this section or of any requirements of the course of treatment,
the court shall, subject only to the provisions of subsection g. of this
section, permanently revoke the person's special probation unless the court
finds on the record that there is a substantial likelihood that the person will
successfully complete the treatment program if permitted to continue on special
probation, and the court is clearly convinced, considering the nature and
seriousness of the violations, that no danger to the community will result from
permitting the person to continue on special probation pursuant to this
section.� The court's determination to permit the person to continue on special
probation following a second or subsequent violation pursuant to this paragraph
may be appealed by the prosecution.
���� (3)�� In making its
determination whether to revoke special probation, and whether to overcome the
presumption of revocation established in paragraph (2) of this subsection, the
court shall consider the nature and seriousness of the present infraction and
any past infractions in relation to the person's overall progress in the course
of treatment, and shall also consider the recommendations of the treatment
provider.� The court shall give added weight to the treatment provider's
recommendation that the person's special probation be permanently revoked, or
to the treatment provider's opinion that the person is not amenable to
treatment or is not likely to complete the treatment program successfully.
���� (4)�� If the court permanently
revokes the person's special probation pursuant to this subsection, the court
shall impose any sentence that might have been imposed, or that would have been
required to be imposed, originally for the offense for which the person was
convicted or adjudicated delinquent.� The court shall conduct a de novo review
of any aggravating and mitigating factors present at the time of both original
sentencing and resentencing.� If the court determines or is required pursuant
to any other provision of this chapter or any other law to impose a term of
imprisonment, the person shall receive credit for any time served in custody
pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility
pursuant to this section, and for each day during which the person
satisfactorily complied with the terms and conditions of special probation
while committed pursuant to this section to a residential treatment facility.�
The court, in determining the number of credits for time spent in a residential
treatment facility, shall consider the recommendations of the treatment
provider.
���� (5)�� Following a violation,
if the court permits the person to continue on special probation pursuant to
this section, the court shall order the person to comply with such additional
terms and conditions, including but not limited to more frequent drug or alcohol
testing, as are necessary to deter and promptly detect any further violation.
���� (6)�� Notwithstanding any
other provision of this subsection, if the person at any time refuses to
undergo urine testing for drug or alcohol usage as provided in subsection a. of
this section, the court shall, subject only to the provisions of subsection g.
of this section, permanently revoke the person's special probation.�
Notwithstanding any other provision of this section, if the person at any time
while committed to the custody of a residential treatment facility pursuant to
this section commits an act that would constitute an escape, the court shall
forthwith permanently revoke the person's special probation.
���� (7)�� An action for a
violation under this section may be brought by a probation officer or
prosecutor or on the court's own motion.� Failure to complete successfully the
required treatment program shall constitute a violation of the person's special
probation. In the case of the temporary or continued management of a person's
drug or alcohol dependency by means of medication-assisted treatment as defined
herein, whenever supported by a report from the treatment provider of existing
satisfactory progress and reasonably predictable long-term success with or
without further medication-assisted treatment, the person's use of the
medication-assisted treatment, even if continuing, shall not be the basis to
constitute a failure to complete successfully the treatment program.� A person
who fails to comply with the terms of the person's special probation pursuant
to this section and is thereafter sentenced to imprisonment in accordance with
this subsection shall thereafter be ineligible for entry into the Intensive Supervision
Program, provided however that this provision shall not affect the person's
eligibility for entry into the Intensive Supervision Program for a subsequent
conviction.
���� As used in this section, the
term "medication-assisted treatment" means the use of any medications
approved by the federal Food and Drug Administration to treat substance use
disorders, including extended-release naltrexone, methadone, and buprenorphine,
in combination with counseling and behavioral therapies, to provide a
whole-patient approach to the treatment of substance use disorders.
���� g.��� When a person on special
probation is subject to a presumption of revocation on a second or subsequent
violation pursuant to paragraph (2) of subsection f. of this section, or when
the person refuses to undergo drug or alcohol testing pursuant to paragraph (6)
of subsection f. of this section, the court may, in lieu of permanently
revoking the person's special probation, impose a term of incarceration for a
period of not less than 30 days nor more than six months, after which the
person's term of special probation pursuant to this section may be reinstated.�
In determining whether to order a period of incarceration in lieu of permanent
revocation pursuant to this subsection, the court shall consider the
recommendations of the treatment provider with respect to the likelihood that
such confinement would serve to motivate the person to make satisfactory
progress in treatment once special probation is reinstated.� This disposition
may occur only once with respect to any person unless the court is clearly convinced
that there are compelling and extraordinary reasons to justify reimposing this
disposition with respect to the person.� Any such determination by the court to
reimpose this disposition may be appealed by the prosecution.� Nothing in this
subsection shall be construed to limit the authority of the court at any time
during the period of special probation to order a person on special probation
who is not subject to a presumption of revocation pursuant to paragraph (2) of
subsection f. of this section to be incarcerated over the course of a weekend,
or for any other reasonable period of time, when the court in its discretion
determines that such incarceration would help to motivate the person to make
satisfactory progress in treatment.
���� h.��� The court, as a
condition of its order, and after considering the person's financial resources,
shall require the person to pay that portion of the costs associated with the
person's participation in any residential or nonresidential treatment program
imposed pursuant to this section which, in the opinion of the court, is
consistent with the person's ability to pay, taking into account the court's
authority to order payment or reimbursement to be made over time and in
installments.
���� i.���� The court shall impose,
as a condition of the special probation, any fine, penalty, fee, or restitution
applicable to the offense for which the person was convicted or adjudicated
delinquent.
���� j.���� Where the court finds
that a person has satisfied all of the eligibility criteria for special
probation and would otherwise be required to be committed to the custody of a
residential substance use disorders treatment facility pursuant to the
provisions of subsection d. of this section, the court may temporarily suspend
imposition of all or any portion of the term of commitment to a residential
treatment facility and may instead order the person to enter a nonresidential
treatment program, provided that the court finds on the record that:
���� (1)�� the person conducting
the diagnostic assessment required pursuant to paragraph (1) of subsection a.
of this section has recommended in writing that the proposed course of
nonresidential treatment services is clinically appropriate and adequate to
address the person's treatment needs; and
���� (2)�� no danger to the
community would result from the person participating in the proposed course of
nonresidential treatment services; and
���� (3)�� a suitable treatment
provider is able and has agreed to provide clinically appropriate
nonresidential treatment services.
���� If the prosecutor objects to
the court's decision to suspend the commitment of the person to a residential
treatment facility pursuant to this subsection, the sentence of special
probation imposed pursuant to this section shall not become final for ten days
in order to permit the appeal by the prosecution of the court's decision.
���� After a period of six months
of nonresidential treatment, if the court, considering all available
information including but not limited to the recommendation of the treatment
provider, finds that the person has made satisfactory progress in treatment and
that there is a substantial likelihood that the person will successfully
complete the nonresidential treatment program and period of special probation,
the court, on notice to the prosecutor, may permanently suspend the commitment
of the person to the custody of a residential treatment program, in which event
the special monitoring provisions set forth in subsection k. of this section
shall no longer apply.
���� Nothing in this subsection
shall be construed to limit the authority of the court at any time during the
term of special probation to order the person to be committed to a residential
or nonresidential treatment facility if the court determines that such
treatment is clinically appropriate and necessary to address the person's
present treatment needs.
���� k.��� (1)� When the court
temporarily suspends the commitment of the person to a residential treatment
facility pursuant to subsection j. of this section, the court shall, in
addition to ordering participation in a prescribed course of nonresidential
treatment and any other appropriate terms or conditions authorized or required
by law, order the person to undergo urine testing for drug or alcohol use not
less than once per week unless otherwise ordered by the court.� The
court-ordered testing shall be conducted by the probation department or the
treatment provider.� The results of all tests shall be reported promptly to the
court and to the prosecutor.� If the person is involved with a program that is
providing the person medication-assisted treatment as defined in paragraph (7)
of subsection f. of this section, only a positive urine test for drug or
alcohol use unrelated to the medication-assisted treatment shall constitute a
violation of the terms and conditions of special probation.� In addition, the
court shall impose appropriate curfews or other restrictions on the person's
movements, and may order the person to wear electronic monitoring devices to
enforce such curfews or other restrictions as a condition of special probation.
���� (2)�� The probation department
or other appropriate agency shall immediately notify the court and the
prosecutor in the event that the person fails or refuses to submit to a drug or
alcohol test, knowingly defrauds the administration of a drug test, terminates
the person's participation in the course of treatment, or commits any act that
would constitute absconding from parole.� If the person at any time while
entered in a nonresidential treatment program pursuant to subsection j. of this
section knowingly defrauds the administration of a drug test, goes into hiding,
or leaves the State with a purpose of avoiding supervision, the court shall
permanently revoke the person's special probation.
���� l.���� If the court finds that
the person has made exemplary progress in the course of treatment, the court
may, upon recommendation of the person's supervising probation officer or on
the court's own motion, and upon notice to the prosecutor, grant early discharge
from a term of special probation provided that the person: (1) has
satisfactorily completed the treatment program ordered by the court; (2) has
served at least two years of special probation; (3) within the preceding 12
months, did not commit a substantial violation of any term or condition of
special probation, including but not limited to a positive urine test, which
shall only constitute a violation for a person using medication-assisted
treatment as defined in paragraph (7) of subsection f. of this section if the
positive test is unrelated to the person's medication-assisted treatment; and
(4) is not likely to relapse or commit an offense if probation supervision and
related services are discontinued.
���� m.�� (1)� The Superior Court
may order the expungement of all records and information relating to all prior
arrests, detentions, convictions, and proceedings for any offense enumerated in
Title 2C of the New Jersey Statutes upon successful discharge from a term of
special probation as provided in this section, regardless of whether the person
was sentenced to special probation under this section, section 2 of P.L.2012,
c.23 (C.2C:35-14.2), or
N.J.S.2C:45-1, if the person satisfactorily completed a substance abuse
treatment program as ordered by the court and was not convicted of any crime,
or adjudged a disorderly person or petty disorderly person, during the term of
special probation. The provisions of N.J.S.2C:52-7 through N.J.S.2C:52-14 shall
not apply to an expungement pursuant to this paragraph and no fee shall be
charged to a person eligible for relief pursuant to this paragraph.� The court
shall grant the relief requested unless it finds that the need for the
availability of the records outweighs the desirability of having the person
freed from any disabilities associated with their availability, or it finds
that the person is otherwise ineligible for expungement pursuant to paragraph (2)
of this subsection.� An expungement under this paragraph shall proceed in
accordance with rules and procedures developed by the Supreme Court.�
���� (2)�� A person shall not be
eligible for expungement under paragraph (1) of this subsection if the records
include a conviction for any offense barred from expungement pursuant to
subsection b. or c. of N.J.S.2C:52-2. It shall be the obligation of the
prosecutor to notify the court of any disqualifying convictions or any other
factors related to public safety that should be considered by the court when
deciding to grant an expungement under paragraph (1) of this subsection.
���� (3)�� The Superior Court shall
provide a copy of the expungement order granted pursuant to paragraph (1) of
this subsection to the prosecutor and to the person and, if the person was
represented by the Public Defender, to the Public Defender. The person or, if
the person was represented by the Public Defender, the Public Defender on
behalf of the person, shall promptly distribute copies of the expungement order
to appropriate agencies who have custody and control of the records specified
in the order so that the agencies may comply with the requirements of
N.J.S.2C:52-15.
���� (4)�� If the person whose
records are expunged pursuant to paragraph (1) of this subsection is convicted
of any crime following discharge from special probation, the full record of
arrests and convictions may be restored to public access and no future expungement
shall be granted to such person.
���� (5)�� A person who, prior to
the effective date of P.L.2015, c.261, was successfully discharged from a term
of special probation as provided in this section, regardless of whether the
person was sentenced to special probation under this section, section 2 of P.L.2012,
c.23 (C.2C:35-14.2), or N.J.S.2C:45-1, may seek an expungement of all records
and information relating to all arrests, detentions, convictions, and
proceedings for any offense enumerated in Title 2C of the New Jersey Statutes
that existed at the time of discharge from special probation by presenting an
application to the Superior Court in the county in which the person was
sentenced to special probation, which contains a duly verified petition as
provided in N.J.S.2C:52-7 for each crime or offense sought to be expunged.� The
petition for expungement shall proceed pursuant to N.J.S.2C:52-1 et seq. except
that the requirements related to the expiration of the time periods specified
in N.J.S.2C:52-2 through section 1 of P.L.1980, c.163 (C.2C:52-4.1) shall not
apply. A person who was convicted of any offense barred from expungement
pursuant to subsection b. or c. of N.J.S.2C:52-2, or who has been convicted of
any crime or offense since the date of discharge from special probation shall
not be eligible to apply for an expungement under this paragraph.� In addition,
no application for expungement shall be considered until any pending charges
are disposed.� It shall be the obligation of the prosecutor to notify the court
of any disqualifying convictions or any other factors related to public safety
that should be considered by the court when deciding to grant an expungement
under this paragraph.� The Superior Court shall consider the person's verified
petition and may order the expungement of all records and information relating
to all arrests, detentions, convictions, and proceedings of the person that
existed at the time of discharge from special probation as appropriate.� The
court shall grant the relief requested unless it finds that the need for the availability
of the records outweighs the desirability of having the person freed from any
disabilities associated with their availability, or it finds that the person is
otherwise ineligible for expungement pursuant to this paragraph.� No fee shall
be charged to a person eligible for relief pursuant to this paragraph.
(cf: P.L.2015, c.261, s.1)
���� 2.��� This act shall take
effect immediately.
STATEMENT
����� This bill would permit persons with certain older,
multiple criminal convictions to be eligible for placement in the special
probation drug court program.
����� Under current law,
a person is ineligible for
the drug court program if: (1) the person has been previously convicted on at
least two separate occasions for crimes of the first or second degree, unless
any one of those convictions was for a violent crime rendering the person
automatically ineligible (crimes such as murder, kidnapping, and sexual
assault); or (2) the person has been previously convicted on at least two
separate occasions, based on one offense being a crime of the first or second
degree and the other offense being a crime of the third degree, but not
counting any crime of the third degree for possessing a controlled dangerous
substance pursuant to N.J.S.2C:35-10 (such possession convictions do not court
towards the two conviction �cap� on eligibility), and neither conviction was
for a violent crime rendering the person automatically ineligible.
����� This ineligibility criterion
concerning past convictions would remain in place; however, the bill would
permit a person with two or more past convictions to be eligible for special
probation drug court, so long as none of the convictions rendered the person
automatically ineligible and any conviction for a crime of the first or second
degree was at least five years old, measured from the date of the person�s
satisfactory completion of probation or parole, or release from incarceration,
whichever date is later.