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How To Get A Conditional Discharge for Marijuana and Other Drug Offenses

Please note: New Jersey voted in favor of legalizing marijuana in the November 2020 election. However, legislation is still developing. If you are facing marijuana charges, it is crucial that you secure an attorney immediately to look after your rights. Call 908-643-6801 or contact us online to discuss your case.

New Jersey’s conditional discharge program for marijuana possession diverts first-time drug offenders away from the state’s criminal courts and provides alternative probationary requirements instead. If a defendant successfully completes these requirements, the initial charges are dismissed entirely; but if he violates the supervisory conditions the original charges are reinstated.

Conditional discharge for marijuana possession provides a number of benefits to eligible defendants: they avoid the stigma of a criminal conviction, they face probation rather than criminal penalties, and the terms of their probation focus on treatment and rehabilitation. There are also downsides to taking a conditional discharge, however, such as giving up the possibility of acquittal.

Defendants should always consult with an experienced New Jersey defense lawyer about the extent of their options and any possible consequences before deciding whether to opt for a conditional discharge. I am Anthony N. Palumbo, lead partner at the criminal defense law firm of The Law Offices of Anthony N. Palumbo, and I’m available to answer any questions you may have about conditional discharge for marijuana and other drug offenses. Call me today at 908-643-6801 for a free consultation.

Diversionary Programs in New Jersey

Conditional discharge is one of two diversionary programs available in New Jersey. The other program, Pre-Trial Intervention (PTI), operates in a similar manner by offering deferred adjudications pending completion of a probationary period. The eligibility requirements for the programs are different, however; while conditional discharge is limited to minor drug offenses, PTI is available for a broader range of more serious crimes.

Requirements for Conditional Discharge for Marijuana

Eligibility for the conditional discharge program is based on the following requirements:

  • Only non-indictable drug offenses are eligible. Conditional discharge is available only for non-indictable offenses (i.e., disorderly persons and petty disorderly persons offenses) involving marijuana, stimulants, depressants, or hallucinogens. Disorderly persons offenses that do not involve drugs, such as shoplifting and simple assault, do not qualify for conditional discharge, nor do more serious drug offenses that are graded as indictable crimes, such as drug distribution and manufacturing.
  • Defendants with prior drug convictions are not eligible. Defendants who have previously been convicted of drug crimes are not eligible for conditional discharge. Because the statute requires a prior “conviction,” however, a defendant was permitted to seek conditional discharge in one case despite having had a prior juvenile drug offense but no adult conviction. State v. Teitelbaum, 160 N.J. Super. 430 (1978). The conditional discharge requirements were narrowly construed in another case where the defendant’s prior drug offense was pending and a conviction had not yet been made. State v. Gray, 215 N.J. Super. 286 (1987). While the defendants in these cases were deemed eligible for conditional discharge, however, the courts emphasized that they were not automatically entitled to it. Rather, their applications remained subject to discretionary approval from the trial judge, as discussed below.
  • Defendants who have previously been diverted are not eligible. Defendants can seek diversion from traditional prosecution only once in their lifetimes, and after they’ve received either a conditional discharge or PTI they’re no longer eligible for these programs. In State v. O’Brien, 418 N.J. Super. 428 (2011), for example, the court explained that PTI is unavailable for any defendant previously placed into supervisory treatment under conditional discharge, even if the conditional discharge was vacated prior to the request for PTI.
  • Discretionary approval. In addition to the objective requirements listed above, defendants seeking conditional discharge must also obtain discretionary approval from the trial judge. This inquiry focuses on two criteria: whether granting conditional discharge will result in any danger to the community, and whether the terms and conditions imposed on the defendant will provide rehabilitative benefits and be adequate to protect the public. Judges must consider a variety of factors in making conditional discharge decisions, but they have broad discretion and their decisions are not easily overturned on appeal.

Supervisory Treatment

If a conditional discharge is granted, the defendant’s original charges are suspended and supervisory treatment commences. This probationary period runs for up to three years and is accompanied by various terms and conditions, such as drug testing and counseling requirements, provisions for regular meetings with the defendant’s conditional discharge officer, and drivers license suspensions. As long as the defendant complies with these conditions and avoids being arrested, the original charges will be dismissed at the completion of the supervisory period and no criminal conviction will be recorded on his permanent record. The conditional discharge does not automatically remove the defendant’s arrest record, however, and this must be done in a separate expungement proceeding.

If the defendant fails to comply with the terms of his probation, the conditional discharge is terminated and the original criminal charges can be revived. This will place many defendants back at an early stage in the criminal process, but if the defendant waited to seek conditional discharge until after he was found guilty but prior to sentencing, the court may enter a final judgment of conviction without further delay.

Conditional Discharge for Multiple Offenses

Defendants charged with multiple offenses arising out of the same incident may be able to participate in the conditional discharge program if each of their offenses meets the eligibility requirements. This type of merger could apply, for instance, if the defendant was arrested and charged, at the same time, for both marijuana possession and paraphernalia possession. If the charges include both eligible and non-eligible offenses, however, conditional discharge may be denied. In a case where the defendant was caught with fraudulently obtained drugs, for instance, the court ruled that she could not piggy-back the fraud charge on the drug offense in order to obtain a conditional discharge. State v. Telcher, 220 N.J. Super. 54 (1987). The same result was reached and conditional discharge was denied in a case where the defendant sought diversion of a minor marijuana offense along with charges of conspiracy and possession with intent to distribute. State v. Battaglia, 135 N.J. Super. 211 (1975).

New Jersey Conditional Discharge Attorney for Marijuana

If you have questions about New Jersey’s conditional discharge program for marijuana and other drug offenses, contact The Law Offices of Anthony N. Palumbo at 908-643-6801 . Attorney Anthony N. Palumbo alone has over 40 years of experience successfully defending marijuana charges throughout the state of New Jersey.