New Developments in Expungement Laws re: Drug Court

September 12, 2017

RECENT DEVELOPMENTS IN EXPUNGEMENT LAW REGARDING DRUG COURT MATTERS AND OTHER DRUG OFFENSES

Several years ago, New Jersey instituted a program known as Drug Court. The rules governing this program are now defined in one of the New Jersey laws, N.J.S.A. 2C:35-14. Through this program, persons who commit certain types of crimes as a result of drug or alcohol addiction are allowed to participate in an approach that focuses not on punishments such as prison/jail time, but instead focuses on helping them recover from addiction and lead productive lives. The offenses eligible for Drug Court program include not just basic drug offenses such as possession and distribution, but also crimes that persons often commit due to addition, such as theft of money to buy drugs or alcohol.

Selection for Drug Court is not automatic, but depends on a number of factors, including whether the court and the prosecutor’s office sees the person as having the potential to successfully complete the program. The Law Office of Randolph H. Wolf has helped hundreds of people be accepted into Drug Court and avoid jail. The attorneys in our office understand what the court and prosecutor want to know about individuals being charged and help our clients and his or her family members develop the information that will convince the court and prosecutor that the person is a good candidate for the program. So if you find yourself in this situation, please call our office to see if you are eligible for Drug Court and how we can help you become a participant.

Clients accepted into Drug Court initially receive treatment for their addiction problems, either as an in-patient or out-patient or both depending on the extent of the problems. Then they receive training if appropriate and necessary in skills so that they can get and keep a job and do the other things that most non-addicted people do in daily living. They then are expected to get a job, and pay their expenses, which include not just the expenses of daily living (such as food and a residence), but also at some point will include making payments towards things such as child support if applicable, fines and penalties due the court from either the offense in question or prior offenses, and restitution if ordered to be paid to victims of any offenses such as theft.

Drug Court is normally a five year program, but, many participants graduate early based upon their performance. During that period, they are required to report on their status on a regular basis, not just to a probation officer but also to the judge who manages the Drug Court program.

The judge will ask about the status of the participants when they appear. Those who are succeeding will be recognized for their accomplishments. Those who are having difficulties may have an adjustment in their program in order to assist them in getting back on track. Those who are really failing, for instance by committing another offense or by repeatedly failing drug tests, can be terminated from the Drug Court program and will generally receive a jail sentence.

Those who successfully complete Drug Court obtain a certificate of graduation and a discharge from probation. Effective April 18, 2016, the Drug Court statute was amended add a subsection (N.J.S.A. 2C-35- 14 (m)) providing that among the benefits that graduates receive is an automatic expungement not only of the charges that led to them being accepted into the Drug Court, but also any prior crimes or criminal offenses that are on their record that would normally be eligible for expungement under 2C:52-7. The normal limitation that a person is not eligible for an expungement if they have more then one felony conviction, set out in N.J.S.A. 2C:52-2 (a), was waived for Drug Court graduates under this new subsection.

Most attorneys and judges had interpreted this statute as establishing an automatic expungement of all eligible criminal offenses including 3rd and 4th degree possession with intent to distribute and distribution charges. However, a recent decision from the New Jersey Appellate Division, In re T.B., ___ N.J.Super. ___, 2017 WL 3254785 (App. Div. August 1, 2017), has changed that to some degree.

In In re T.B., the court held that any conditions imposed by the regular expungement act would apply to Drug Court graduates (except for its provision limiting expungement to only one conviction for a crime (New Jersey’s term covering most offenses that in other states would be called felonies). This is of particular significance where the crime to be expunged is a third or fourth degree offense involving the sale or distribution of a controlled dangerous substance (CDS), in other words an illegal drug, with intent to sell. In those cases, the regular expungement statute requires a showing that the expungement is “consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.”

Of particular significance, the Appellate Division further held that in Drug Court cases where this provision would apply, the Drug Court judge must apply the standard established by the New Jersey Supreme Court in In re Kollman, 210 N.J. 557 (2012). In that case, the Supreme Court held that once the prosecutor establishes that the “public interest” standard applies, the applicant has the burden of showing that he/she meets this standard, and that usually this will require detailed information about the prior offense(s) (including transcripts and pre-sentence reports) as well as information about the applicant’s character and what they have done to rehabilitate themselves since the conviction.

In In re T.B., the Appellate Division acknowledged that the fact that the person has successfully completed the Drug Court program provides some indication of the graduate’s character to the judge, since the judge has been supervising him/her for the 5 year probation period. However, it held this standing alone is not enough, and that the graduate must “demonstrate something more” that just that he/she graduated the Drug Court program. In other words, additional information about what the person has done to improve his/her life during the five years of Drug Court will be needed.

This “public interest” standard has existed in the regular expungement statute for some time, primarily in connection with the applications for early track (5 year) expungements, along with the expungements for the third and fourth degree CDS offenses considered in the recent Appellate Division decision.

The attorneys at the law firm of Randolph H. Wolf have been handling Public Interest Expungements since the statute was first amended to permit them 2010. It is not a simple process, but, we have become quite familiar with what the courts and prosecutors require under the Kollman standard, and have considerable experience with working with expungement applicants and their families to gather the type of information that succeed in obtaining the expungement. We have had considerable success in court with these applications.

If you or a family member find yourself in a situation where you’ve graduated from Drug Court and are concerned that you will not get the automatic expungement because of your history of 3rd or 4th degree possession with intent to distribute or distribution charges, or the prosecutor is objecting an expungement, please call us at (732) 741-4448 to see if we can help you.

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