Qualifying for PTI after Marijuana Expungement in NJ

If you previously obtained a dismissal for a marijuana charge through conditional discharge in New Jersey, you are not automatically disqualified from the Pre-Trial Intervention Program.

Can I get PTI after using conditional discharge for a marijuana case in NJ? When New Jersey residents voted to legalize recreational marijuana, Governor Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance (CREAMMA), and Marketplace Modernization Act that legalized, regulated, and decriminalized cannabis use, specifically marijuana and hashish. In writing and enforcing the law, the New Jersey legislature and the Attorney General’s office anticipated potential issues reconciling cannabis-related crimes and offenses that occurred and resolved before CREAMMA and the new reality of regulation and decriminalization.

While statutory and case law have reconciled old rules to the new regarding sentencing and detention hearings that consider the prior criminal history of a defendant, diversionary program entry requirements raised novel issues that the Supreme Court resolved in State vs. Gomes. The New Jersey Supreme Court reviewed two cases combined to rule on a common issue: whether pre-CREAMMA conditional discharges for marijuana offenses disqualify applicants to the Pretrial Intervention (PTI) program for crimes after CREAMMA. Conditional discharge and PTI are programs that divert first-time offenders from fulfilling their sentence in the prison system to resource and supervised probationary programs. After completing either program, the state dismisses the participant’s charges so that a conviction does not appear on their record.

Typical Rules Governing PTI Applicants in NJ

Under NJ law, those who completed a diversionary program are ineligible to enter another one in the future. New Jersey Rule 3:28-1 allows those 18 or older or a juvenile treated as an adult to apply for PTI but not those who previously enrolled in, were placed in or completed a conditional discharge, conditional dismissal program, or Veterans Diversion Program dismissal. In fact, anyone enrolled in a diversionary program in any state is ineligible for PTI. Further, anyone with a prior conviction or charges that include a presumption of incarceration is ineligible without a prosecutor’s consent.

I Used Conditional Discharge for a Marijuana Offense in NJ, Can I Still get into PTI?

In the post-marijuana legalization environment of New Jersey, the Supreme Court considered the cases of Richard Gomes and Moataz M. Sheira, who were ineligible for PTI since they received conditional discharges before CREAMMA. The Court in Sheira’s case ruled that the defendant’s prior conditional discharge disqualified him from PTI regarding new charges of cocaine possession and heroin possession. However, the Court in Gomes did not find the defendant ineligible for PTI regarding his recent assault by auto charges. On appeal, the appellate division ruled that both defendants were ineligible for PTI by law due to the limitations of one diversion program per person and the pre-CREAMMA expungement statutes.

In reviewing the issues presented on appeal, the Supreme Court discussed the pertinent laws to synchronize them into a coherent interpretation targeted to defendants like the two in question. The Court reiterated the essence of the PTI program, which is to rehabilitate defendants who would benefit by completing a supervisory treatment program. In admitting a PTI applicant, the prosecutor considers those with the will and ability to change their behavior to be law-abiding citizens and many other considerations. Further, while New Jersey has a one-diversion-only policy, the Supreme Court noted PTI’s one-diversion-only rule does not bar those charged with marijuana offenses that are no longer offenses. Additionally, CREAMMA does not explicitly bar people with pre-CREAMMA conditional discharges for marijuana offenses from PTI since the law extends its reforms to all cases before it.

In fact, CREAMMA includes an automatic expungement, “by operation of law,” of “any case” involving certain marijuana offense convictions or disorderly persons offenses and petty disorderly persons offenses resolved by conditional discharge. Unlike other expungements meant to reward those rehabilitated from a life of crime, CREAMMA expungements happen automatically, regardless of the public policy to encourage reform.

Do Marijuana Conditional Discharges Disqualify Me for Pre-Trial Intervention in New Jersey?

The Court noted the most significant distinction between pretrial release/bail hearings and using expunged records for PTI consideration is the statutory language that mandates courts not to consider prior marijuana or marijuana-related convictions when determining whether a court will release a defendant from jail pending their trial. For PTI matters, the Court may consider expunged conviction records of prior marijuana convictions. Notice the difference between the terminology in the Court’s reasoning between may and shall.

Thus, the Supreme Court interpreted the laws of PTI, expungement, and CREAMMA in a compatible manner, ruling that a prosecutor and Court may not automatically exclude those with pre-CREAMMA conditional discharges from PTI admission for certain marijuana offenses. Instead, prosecutors and courts must accept applicants on their merits without regard to prior marijuana-related conditional discharge disqualifiers. As such, the Court reversed the appellate division decision and remanded it to the trial court. Finally, the Court explicitly denied creating a blanket reversal of the one-diversion policy of the PTI law (N.J.S.A. 2C:43-12(g).

Since the prosecutor plays an integral role in the process for PTI applications and admissions, the Gomes case is significant for PTI applicants with prior conditional discharges for marijuana offenses. While Gomes disallows a prosecutor or Court to deny PTI admission to applicants with marijuana-related conditional discharges automatically, it reinforces that PTI admission is a case-by-case determination based on specific criteria. As a result, PTI applicants must know the Gomes ruling when a prosecutor summarily denies their application because of their conditional discharge for marijuana possession.

Talk to an Accomplished Criminal Attorney about Seeking Pretrial Intervention after Conditional Discharge in NJ

When you face criminal charges in New Jersey, it is vital to enlist the knowledgeable legal counsel of a criminal defense attorney who knows the latest marijuana-related and PTI law developments, particularly if you want to seek admission into Pretrial Intervention. A skilled criminal lawyer may be able to challenge the prosecutor’s decision seeking to disqualify you solely on the grounds of a prior marijuana offense that was conditionally discharged, since it has now been discredited by the NJ Supreme Court. In some PTI cases, it is very possible to challenge a prosecutor’s determination of ineligibility. In addition, it is of the utmost importance that you have an attorney helping you file the most compelling application to improve your chances of getting into PTI. If PTI is not an option, a criminal defense lawyer can help you decide the best defense, whether that is negotiation a plea bargain or taking your case to trial.

Call our New Jersey criminal defense attorneys at The Tormey Law Firm at (201)-556-1570 when you need a lawyer with a proven track record of success helping clients get into PTI, and using highly formulated defenses to beat the charges altogether in courts statewide. You can reach us anytime by sending a message or contacting us by phone to get a free consultation.


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