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“A presumption of non-incarceration applies to certain first-time criminal charges, usually third and fourth degree crimes and lesser offenses, where it is assumed that you will not be sentenced to jail if convicted.”

If you’ve been arrested for a crime which bears a “presumption of non-incarceration,” you are fortunate in that your criminal matter is not as serious as it would be if you were facing a presumption of imprisonment. A presumption of non-incarceration simply means that if convicted, it is still “presumed” that you will be not be incarcerated, or given a prison sentence. Your criminal matter still needs to be handled correctly, but on a first offense, you’re probably not going to jail.

New Jersey legislators have been trying to reduce the state’s prison population for many years. As part of that effort, the state has enacted laws applying a “presumption of non-incarceration” to certain categories of less-severe crimes and a “presumption of incarceration” to more severe crimes. A charge type in which the party will probably go to jail bears a “presumption of incarceration.” All second degree crimes in New Jersey bear a presumption of incarceration. If you are facing any criminal charges in New Jersey, it is important to understand these presumptions and how they may affect your likelihood of serving jail or prison time if you are ultimately convicted.

New Jersey Presumption of Non-Incarceration Law

Under New Jersey section N.J.S.A. 2C:44-1(e), a presumption of non-incarceration applies to many first-time offenses other than first degree and second degree crimes. According to this statute, a judge should not impose a term of imprisonment for a third degree crime, a fourth degree crime, a disorderly persons or petty disorderly persons offense, or municipal ordinance violation, unless the circumstances of the offense and character of the defendant indicates that imprisonment is necessary to protect the public. Thus, if you commit a first-time offense that is not a first or second degree crime, there is a good chance you will not receive a jail or prison term. This is assuming there are no serious aggravating factors associated with your case.

It is important to recognize, however, that the presumption of non-incarceration is just that—a presumption. In other words, a judge can still imprison you if the facts of your case are particularly serious. There are also a number of third and fourth degree crimes to which the presumption of non-incarceration does not necessarily apply, including certain child pornography offenses, jury tampering, some gang-related crimes, vehicular homicide, identity theft crimes, eluding a police officer, and certain theft and assault crimes, among others. An experienced New Jersey criminal defense attorney at our firm can help you determine whether the presumption of non-incarceration applies to your charges based on the presence or absence of aggravating circumstances, your prior criminal history, and the type of offense at issue.

Call The Tormey Law Firm for a free consultation with experienced NJ criminal defense attorneys, and former prosecutors.

No matter what your charge or it’s severity, focusing on your defense is a good idea. When charged with a crime in New Jersey, you don’t want to end up with a criminal record, and you don’t want to end up in jail. Our firm is absolutely dedicated to providing the best criminal defense for your legal issues, and we are available for free consultations regarding your criminal matter. We are here to listen to the circumstances of your unique case and tell you some of the strategies we can use to fight your charges. Simply call (201) 556-1570 to speak with an NJ criminal lawyer on our staff.

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Learn More About How to Fight Your Charges

If you've been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.

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