An Act concerning treatment for drug and alcohol dependent persons ¹[and] ,¹ amending N.J.S.2C:35-14 ¹, and supplementing Title 2C of the New Jersey Statutes¹.

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; Prosecutorial Objections; 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. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, 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 five years. [, provided that the court finds on the record that] ²[In determining whether to place the person on special probation, the court may consider the following factors:

(1) the [person has undergone a] results of any professional diagnostic assessment the person has undergone to determine whether and to what extent the person is drug or alcohol dependent
and would benefit from treatment; and

(2) whether the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and whether the person was drug or alcohol dependent at the time of the commission of the present offense; and

(3) whether 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) whether substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and

(5) whether the person [did not possess] possessed a firearm at the time of the present offense [and did not possess] or possessed a firearm at the time of any pending criminal charge; and

(6) whether the person has [not] been previously convicted on two or more separate occasions of crimes of the 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

(7) [the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, 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] (deleted by amendment, P.L. , c. pending before the Legislature as this bill).

(8) whether a suitable treatment facility licensed and approved by the Division of 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) whether [no] danger to the community will result from the person being placed on special probation pursuant to this section.]

Prior to placing a person on special probation, the court shall find on the record that: 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; 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; substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; the person has not been previously convicted on two or more separate occasions of crimes of the first degree; a suitable treatment facility licensed and approved by the Division of 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; 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 no danger to the community will result from the person being placed on special probation pursuant to this section.

In determining whether to place the person on special probation, the court may additionally consider the following factors:

(1) whether 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 to support the person's drug or alcohol dependency; and

(2) whether the person has been previously convicted on two or more occasions of crimes of the second degree; or the person has 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.²

Notwithstanding any provision of this section or any other law to the contrary, the court shall not place on special probation any person who has been previously convicted or adjudicated delinquent for, or has a pending charge of murder, aggravated manslaughter, manslaughter, ²[robbery,]²kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States.

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] ²[any] the² 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 make all findings relevant to its determination on the record.

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 Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, 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 nonresidential rather than a residential treatment program, the court shall follow the procedure set forth in subsection j. of this section. Subject to the requirements of subsection d. of this section, 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) 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)²;

(3) a crime, other than that defined in section 1 of P.L.1987, c.101 (C.2C:35-7), 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. A person who is subject to sentencing under this section in accordance with subsection a. shall not be eligible for a sentence of special probation pursuant to this section if:

(1) the person has been:

(a) convicted of or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101 (C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or any crime for which there exists a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1 or any other statute; or

(b) previously convicted of 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; [or

(c) previously convicted on two or more separate occasions of crimes of the third degree, other than crimes defined in N.J.S.2C:35-10;] and

(2) the prosecutor objects to the person being placed on special probation. The court shall not place a person on special probation over the prosecutor's objection except upon a finding by the court of a gross and patent abuse of prosecutorial discretion. If the court makes a finding of a gross and patent abuse of prosecutorial discretion and imposes a sentence of special probation notwithstanding the objection of the prosecutor, the sentence of special probation imposed pursuant to this section shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

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 treatment facility licensed and approved by the Division of 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).

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 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 his 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.

(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 impose 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. 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 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. The court, in determining the number of credits for time spent in a residential treatment facility, 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.

(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. A person who fails to comply with the terms of his 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.

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.

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 his participation in any rehabilitation program, nonresidential treatment program or period of residential treatment 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.

i. 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.

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 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.

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. 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 his 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.

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; (2) has served at least two years of special probation; (3) did not commit a substantial violation of any term or condition of special probation, including but not limited to a positive urine test, within the preceding 12 months; and (4) is not likely to relapse or commit an offense if probation supervision and related services are discontinued.

(cf: P.L.2008, c.15, s.1)

¹2. (New section) a. ²[The Supreme Court shall develop and establish a] A² two-year pilot program ²is established in two vicinages² to determine the effectiveness of mandatory sentencing of qualified offenders to special probation under N.J.S.2C:35-14 ²[.] as well as to assess the feasibility of expanding this program Statewide. The Administrative Office of the Courts shall select the pilot vicinages and shall administer and evaluate the pilot programs in accordance with this section.²

b. ²[The Supreme Court shall select one vicinage from the northern region of the State and one vicinage from the southern region of the State to participate in the program. In selecting the pilot program vicinages, the Supreme Court may consider whether a vicinage has requested to participate in the pilot program. For the purposes of this section, "northern" means vicinages 2 (Bergen), 5 (Essex), 6 (Hudson), 8 (Middlesex), 10 (Morris/Sussex), 11 (Passaic), 12 (Union) and 13 (Somerset/Hunterdon/Warren); and "southern" means vicinages 1 (Atlantic/Cape May), 3 (Burlington), 4 (Camden), 7 (Mercer), 9 (Monmouth), 14 (Ocean) and 15 (Gloucester/Cumberland/Salem).] During the period that the pilot program is in effect, any defendant who is: (1) reasonably suspected to be drug dependent as defined in N.J.S.2C:35-2; (2) 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; and (3) meets the legal criteria for eligibility for special probation under the provisions of subsections a. and b. of N.J.S.2C:35-14 shall be ordered to undergo a professional diagnostic assessment as provided in subsection a. of N.J.S.2C:35-14 to determine if the defendant is drug dependent.²

c. ²[A court located in a vicinage participating in the pilot program established under this section shall sentence any person who is eligible for special probation under the provisions of subsections a. and b. of N.J.S.2C:35-14 to special probation.] If, based on the results of a professional diagnostic assessment, the court determines that the defendant is drug dependent and is otherwise eligible for special probation pursuant to the provisions of subsections a. and b. of N.J.S.2C:35-14, the court shall, notwithstanding any other provision of N.J.S.2C:35-14, sentence the defendant to special probation, unless the court finds that a sentence of imprisonment must be imposed pursuant to chapters 43 and 44 of Title 2C of the New Jersey Statutes, in which case the court shall impose a sentence of imprisonment.² Subsection c. of N.J.S.2C:35-14 shall not apply in sentencing a person under this subsection.

d. Not later than one year following the effective date of this act, and ²[thereafter]² annually ²thereafter for five years² , the Administrative Director of the Courts shall submit to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), a report containing an evaluation of the pilot program. The report shall include the rates of completion and revocation for people admitted to mandatory special probation, the recidivism rates for graduates of mandatory special probation, the costs associated with implementing mandatory special probation, and any other information that may indicate the effectiveness of mandatory special probation ²[, and shall]. The evaluation shall include comparative retention and recidivism data for non-mandatory special probation participants. The Administrative Director of the Courts may² make recommendations concerning the practicability and feasibility of expanding the pilot program Statewide ²[. The Administrative Director of the Courts may accompany this report with] and may provide² recommendations for legislation or other action appropriate for adoption or consideration by the Legislature.

e. The Supreme Court may establish such rules and procedures as may be necessary to effectuate the purpose of this act.¹

³3. (New section) a. Notwithstanding any court rule limiting the time period within which a motion to reduce or change a sentence may be filed, any person described in subsection b. who, on the effective date of this act, is serving a sentence of imprisonment and who has not had his sentence suspended or been paroled or discharged may move to have his sentence reviewed by the court. If the court finds the person would, on the effective date of this act, be eligible for a sentence to special probation pursuant to N.J.S.2C:35-14 and that such sentence would serve the interests of justice, the judge may re-sentence the defendant to special probation pursuant to N.J.S.2C:35-14.

b. A person may move the court to have his sentence reviewed under this section if:

(1) The person was not eligible for a sentence to special probation under N.J.S.2C:35-14 at the time of sentencing; and

(2) The person would be eligible for a sentence to special probation if sentenced on or after the effective date of P.L. , c. (pending before the Legislature as this bill).³

³4. Any person who has been convicted but not sentenced as of the effective date of P.L. , c. (pending before the Legislature as this bill) may move to be sentenced to special probation pursuant to N.J.S.2C:35-14. If the court finds the person is, on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), eligible for a sentence to special probation pursuant to N.J.S.2C:35-14, the judge may place the person on special probation.³

¹[2.] ³[3.¹] 5.³ This act shall take effect immediately.