A5741

An Act concerning eligibility, procedures, and post-program relief for certain drug or alcohol dependent persons sentenced to special probation under N.J.S.2C:35-14 or section 2 of P.L.2012, c.23 (C.2C:35-14.2), or probation under N.J.S.2C:45-1 which as a condition of probation requires substance use disorders treatment, 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 up to 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; and] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(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 residential or nonresidential [rather than a residential] treatment program, the court shall [follow the procedure set forth in subsection j. of this section] consider the recommendations from a diagnostic assessment, including the level of care that is clinically appropriate and adequate to address the person’s treatment needs. [Subject to the requirements of subsection d. of this section, the] 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) or section 1 of P.L.2009, c.333 (C.2C:40-26), 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).] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(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] may impose any sentence which includes a term of imprisonment of up to five years, notwithstanding 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, and determine whether the violation negates any of the mitigating factors originally found, consistent with a hearing pursuant to N.J.S.2C:45-3. 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, regardless of whether the person was sentenced to special probation under this section or section 2 of P.L.2012, c.23 (C.2C:35-14.2), or probation under N.J.S.2C:45-1, for each day during which the person satisfactorily complied with the terms and conditions of special probation, or probation, as the case may be, while committed [pursuant to this section] to a residential treatment facility or a halfway house, so long as that halfway house meets the statutory criteria of a residential treatment facility as defined in N.J.S.2C:35-2. The court, in determining the number of credits for time spent in a residential treatment facility or a halfway house, 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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

i. [The] As a condition of the special probation, whether sentenced under this section or section 2 of P.L.2012, c.23 (C.2C:35-14.2), or probation sentenced under N.J.S.2C:45-1 which as a condition of probation requires substance use disorders treatment, 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. However, notwithstanding any other provision of law to the contrary, upon successful discharge from the term of special probation, or probation, as the case may be, the court may waive or reduce the Drug Enforcement and Demand Reduction penalty imposed pursuant to N.J.S.2C:35-15.

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.] (Deleted by amendment, P.L. , c. )(pending before the Legislature as this bill)

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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

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;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(2) [has served at least two years of special probation;] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(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] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(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,] or section 2 of P.L.2012, c.23 (C.2C:35-14.2), or probation under N.J.S.2C:45-1 which as a condition of probation requires substance use disorders treatment, 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 may also vacate any fine, fee, penalty, surcharge, or other court-ordered financial assessment imposed by a court as part of the person’s sentence, other than restitution to a victim, which, at the time of granting the expungement, remains subject to collection under the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.). 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.] 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 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, or request that the court electronically transmit the order to the appropriate agencies pursuant to subsection c. of section 11 of P.L.2019, c.269 (C.2C:52-10.1), 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, or probation, as the case may be, the full record of arrests and convictions may be restored to public access and no future expungement pursuant to this section 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,] or section 2 of P.L.2012, c.23 (C.2C:35-14.2), or probation under N.J.S.2C:45-1 which as a condition of probation requires substance use disorders treatment, 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, or probation, as the case may be [, 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] . 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. 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 or probation, as the case may be, 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] application 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 may also vacate any fine, fee, penalty, surcharge, or other court-ordered financial assessment imposed by a court as part of the person’s sentence, other than restitution to a victim, which, at the time of granting the expungement, remains subject to collection under the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.). 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.] The Superior Court shall provide a copy of the expungement order granted pursuant to this paragraph to the prosecutor and to the person. 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, or request that the court electronically transmit the order to the appropriate agencies pursuant to subsection c. of section 11 of P.L.2019, c.269 (C.2C:52-10.1), so that the agencies may comply with the requirements of N.J.S.2C:52-15.

(cf: P.L.2015, c.261, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill would expand eligibility for special probation drug court, alter or eliminate procedures to provide courts with more flexibility in sentencing drug or alcohol dependent persons and determining appropriate treatment options, and provide greater expungement relief for clearing criminal and other records, and other post-program relief, for persons successfully discharged from their probation sentence following treatment.

More specifically, the bill would do the following:

- provide that a sentence to special probation would be for a term of “up to” five years, as opposed to the current law’s requirement of a five-year term;

- eliminate ineligibility for special probation based on having two or more previous convictions involving a combination of crimes of the first, second, or third degrees, so there would be no cap based on past convictions, other than if one of those past convictions was for (or there was a pending charge for): murder, aggravated manslaughter, manslaughter, kidnapping, aggravated sexual assault, or sexual assault – one past conviction for aggravated assault would also be eliminated as a disqualifier for special probation;

- indicate that, when determining a special probation sentence involving either residential or nonresidential treatment, the court would consider recommendations from a diagnostic assessment, including the level of care that is clinically appropriate to address a person’s treatment needs, rather than following a statutory list of criteria, which if satisfied, automatically required a commitment to a residential facility, with an exception to temporarily suspend, and possibly later on permanently suspend, such commitment while instead ordering nonresidential treatment (detailed in N.J.S.2C:35-14, subsections d., j., and k., all of which are deleted in their entirety);

- provide that a person would be eligible for special probation, notwithstanding that the person was convicted of the crime of operating a motor vehicle during a period of license suspension, which carries a mandatory minimum term of incarceration and currently renders the person ineligible, when: (1) the suspension period was the result of a DUI violation or refusing to take a breath test, R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), and the person was previously caught operating a vehicle during the same period of suspension; or (2) the suspension period was the result of a second DUI-related violation, regardless of whether previously caught operating a vehicle during the same period of suspension.

- remove the automatic revoking of special probation for escaping from the custody of a residential treatment facility; and remove the statutory presumption, but not automatic, revoking of special probation for a second or subsequent violation of any term or condition of special probation or any requirements of the course of treatment, or for refusing to undergo urine testing for drug or alcohol usage. Instead, any first or subsequent violation, of any kind whatsoever, would allow the court in its discretion to revoke special probation;

- allow a court, upon permanently revoking a person’s special probation, to impose any sentence which includes a term of imprisonment of up to five years, notwithstanding 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 sentenced to special probation. The current law applies the original sentencing parameters upon the permanent revocation of special probation;

- if special probation is permanently revoked and the court imposes a sentence, the sentenced person would receive credit for any time served at a halfway house, similar to how the current law provides credit for time served at a residential treatment facility, so long as the halfway house meets the statutory definition of such a facility, meaning it is licensed and approved by the Department of Human Services and is approved by a county probation department for impatient treatment services;

- make a person eligible for subsequent entry into the State’s Intensive Supervision Program, even though the person failed to comply with the terms of special probation and such probation was permanently revoked, resulting in the person being sentenced to a term of imprisonment;

- eliminate the provision that a treated person, after consideration of the person’s financial resources, pay the portion of the costs associated with the person’s special probation residential or nonresidential treatment;

- permit a court, following successful discharge from either special probation or regular probation requiring substance use disorders treatment, to waive or reduce the Drug Enforcement and Demand Reduction penalty imposed as part of a sentence pursuant to N.J.S.2C:35-15. This penalty ranges from $500 in the case of a disorderly or petty disorderly persons offense to $3,000 in the case of a crime of the first degree;

- allow a court, if a person makes “exemplary progress in the course of treatment” while on special probation, and with the recommendation of the person’s probation officer or on the court’s own motion, to grant early discharge, subject only to a finding, per current law, that the person “is not likely to relapse or commit an offense if probation supervision and related services are discontinued.” The other existing statutory factors for consideration for early discharge, including not committing a substantial violation of any term or condition of special probation within the preceding 12 months, would be repealed;

- at the time of granting an expungement, allow a court to also vacate any fine, fee, penalty, surcharge, or other court-ordered financial assessment imposed by a court as part of the person’s sentence, other than restitution to a victim, which, at the time of granting the expungement, remains subject to collection under the comprehensive enforcement program established pursuant to P.L.1995, c.9 (C.2B:19-1 et al.);

- simplify the application process for treated persons requesting an expungement of their entire criminal records and other related information as described above, for offenses committed prior to the effective date of past special probation reforms pursuant to P.L.2015, c.261 that first introduced the special probation expungement process, by no longer requiring these previously discharged persons to file a duly verified petition for each offense for which expungement is sought, and other requirements of a standard expungement application set forth in N.J.S.2C:52-1 et seq.; and

- provide for a court to electronically notify all appropriate law enforcement and criminal justice agencies who have custody and control of records specified in an expungement order, upon request of a person granted relief, or the Public Defender if representing that person, once the electronic filing and notification system for expungement applications is operational pursuant to section 11 of P.L.2019, c.269 (C.2C:52-10.1).