Bill Text: NJ S3319 | 2014-2015 | Regular Session | Introduced
Bill Title: Establishes diversionary program for certain defendants charged with driving while intoxicated.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-01-07 - Introduced in the Senate, Referred to Senate Law and Public Safety Committee [S3319 Detail]
Download: New_Jersey-2014-S3319-Introduced.html
Sponsored by:
Senator PETER J. BARNES, III
District 18 (Middlesex)
SYNOPSIS
Establishes diversionary program for certain defendants charged with driving while intoxicated.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning diversionary treatment for certain intoxicated drivers and supplementing Title 39 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. Whenever any defendant who has not been previously convicted of an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug pursuant to R.S.39:4-50, or a violation of section 2 of P.L.1981, c.512 (C.39:4-50.4a), and who has not previously participated in the intoxicated driver diversionary program pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), is charged with a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the defendant may, after a plea of guilty or a finding of guilt, but prior to the entry of a judgment of conviction and with appropriate notice to the prosecutor, apply to the court for entry into the intoxicated driver diversionary program pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). If the defendant's request is granted, the court shall postpone all further proceedings against the defendant and refer the defendant to the program.
b. In addition to the eligibility criteria otherwise enumerated in this section, in determining whether the defendant's application for entry into the intoxicated driver diversionary program should be granted, the court shall consider the following factors:
(1) The facts surrounding the commission of the offense;
(2) The motivation, age, character, and attitude of the defendant;
(3) The needs and interests of the community;
(4) The likelihood that the defendant's offense is related to a condition or situation that would be conducive to change through the defendant's participation in the intoxicated driver diversionary program; and
(5) Any other factors deemed relevant by the court.
c. A defendant shall not be eligible for participation in the intoxicated driver diversionary program if:
(1) the motor vehicle operated by the defendant in the commission of the offense was involved in an accident resulting in serious bodily injury to another person;
(2) the motor vehicle operated by the defendant in the commission of the offense contained one or more passengers under the age of 14; or
(3) the defendant was previously convicted of a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), or of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.
d. In granting or denying an application, the court shall state on the record the findings and conclusions, including the facts upon which the application is based, and the reasons for granting or denying the application.
e. If a defendant desires to challenge the decision of the court not to grant defendant's request for enrollment in the intoxicated driver diversionary program, the defendant may file a motion in accordance with the Rules of Court.
f. If a court grants a defendant's application for entry into the intoxicated driver diversionary program over the municipal prosecutor's objection, the order approving the defendant's entry into the program shall be a final order, but, upon request of the municipal prosecutor, shall be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.
2. a. The Administrative Office of the Courts shall maintain a record of all intoxicated driver diversionary program enrollments, the degree of program completion, dismissal of charges, program termination, and rejections of applications.
b. If a person is arrested for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while enrolled in the intoxicated driver diversionary program, the court shall immediately notify the chief administrator and the court shall proceed in accordance with the provisions of subsection d. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
3. a. The chief administrator shall appoint program directors, as necessary, to implement the provisions of this act. The appointment of a program director shall require approval by the Supreme Court with the consent of the assignment judge.
b. The intoxicated driver diversionary program may incorporate any treatment program offered through any public or private office or agency, provided the program is approved by the Division of Mental Health and Addiction Services, including but not limited to, programs currently offered by the municipal court, and counseling or any other social service likely to aid in the rehabilitation of the defendant and to deter the commission of other offenses.
c. A defendant applying for admission into the intoxicated driver diversionary program shall pay to the court a fee of $75 which shall be paid to the Treasurer of the State of New Jersey for deposit into the Intoxicated Driver Diversionary Program Fund established pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill). A person may apply for a waiver of this fee by reason of poverty pursuant to the Rules of Court, or the court may allow for the payment of the fee and other financial obligations by installment.
4. a. There is established within the General Fund a dedicated, non-lapsing fund to be known as the "Intoxicated Driver Diversionary Program Fund," which shall be administered by the Administrative Office of the Courts.
b. The fund shall be the depository of the $75 fee collected for application for entry into the intoxicated driver diversionary program pursuant to subsection c. of section 3 of P.L. , c. (C ) (pending before the Legislature as this bill).
c. Monies in the fund shall be used to offset the cost of intake and monitoring services for defendants diverted from municipal court prosecution for offenses pursuant to R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).
5. a. The terms and duration of the defendant's enrollment in the intoxicated driver diversionary program shall be set forth in writing, signed by the prosecutor and agreed to and signed by the defendant. If the defendant is represented by counsel, defense counsel also shall sign the agreement. Payment of the fee required pursuant to subsection c. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall be included as a term of the agreement. Each order of entry to the intoxicated driver diversionary program shall be filed with the county clerk.
b. During the defendant's period of enrollment in the intoxicated driver diversionary program the charge or charges against defendant for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) shall be held in an inactive status pending termination of defendant's enrollment in the program.
c. The duration of the defendant's enrollment in the intoxicated driver diversionary program may be for such period as determined by the court, but shall not be for a period less than 60 days nor greater than two years, provided, however, that the period of enrollment may be shortened or terminated as the court may determine based on the recommendation of the program director and with the consent of the prosecutor.
d. Upon violation of a term or condition of the intoxicated driver diversionary program, the court shall determine, after a summary hearing, whether the violation warrants the termination of the defendant's participation in the program or modification of the conditions of continued participation in the program.
e. Termination of defendant's participation in the intoxicated driver diversionary program under this section shall be immediately reported to the court which shall forward such information to the Administrative Director of the Courts.
f. Upon termination of the defendant's participation in the intoxicated driver diversionary program, the court may enter a judgment of conviction and impose a fine, penalty, or other assessment which may be imposed by the court in accordance with the defendant's prior plea of guilty or finding of guilt.
g. Any statement or other disclosure by a defendant enrolled in the intoxicated driver diversionary program to a person designated to provide treatment pursuant to the program shall not be disclosed, at any time, to the prosecutor in connection with the charge or charges against the defendant, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the defendant. Nothing in this subsection, however, shall prevent the person providing treatment from informing the prosecutor or the court, upon request or otherwise, as to whether or not the defendant is satisfactorily responding to treatment under the intoxicated driver diversionary program.
6. a. Upon successful completion of the intoxicated driver diversionary program, and with appropriate notice to the prosecutor, the charges against a defendant for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), may be dismissed with prejudice. When the court orders dismissal of the charges against the defendant, the court also shall order the removal of the charges from the defendant's driver history abstract. The dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law for an offense under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), but shall be reported to the Administrative Office of the Courts and recorded in accordance with section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), and shall be reported to the chief administrator for inclusion in the Automated Traffic System for purposes of determining future eligibility or exclusion from the intoxicated driver diversionary program. A dismissal under this section shall not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).
b. A dismissal pursuant to this subsection shall be granted only once with respect to any defendant.
7. This act shall take effect
on the first day of the seventh month after enactment but the Chief
Administrator of the Motor Vehicle Commission may take such administrative
action in advance of the effective date as may be necessary for the
implementation of this act.
STATEMENT
This bill establishes a diversionary program for certain defendants subject to prosecution in municipal court for the offenses of drunk driving and refusal to take the breathalyzer test.
Under current law, first-time drunk driving defendants are fined $250 to $400 if their blood alcohol concentration (BAC) is 0.08% to 0.10%. They are fined $300 to $500 if their BAC is more than 0.10%. In addition, the driver's license of a first-time defendant is suspended for three months if the person's BAC is 0.08% to 0.10%; the driver's license of a defendant whose BAC is more than 0.10% is suspended for seven months to one year. Certain drunk driving defendants are required to install an ignition interlock device on the vehicle he or she principally operates during or after the period of driver's license suspension.
Pursuant to the Intoxicated Driving Program 2013 Statistical Summary Report, prepared by the Division of Mental Health and Addiction Services in the New Jersey Department of Human Services, 96% of the 20,416 offenders who attended the intoxicated driver program (IDP) in 2013 reported using alcohol in their lifetimes, and 86% used alcohol in the past 12 months. The prevalence of lifetime use of marijuana, cocaine, and heroin by IDP clients was almost double the levels reported by NJ Household Survey respondents. In addition, 43% of all IDP clients had a referral for assessment at an affiliated treatment agency or self-help group. It is the sponsor's belief that rehabilitation of drunk driving offenders, rather than punishment, is in the best interest of the citizens of the State of New Jersey and would help to prevent future violations.
The bill establishes an intoxicated driver diversionary program for defendants charged with drunk driving or refusing to take a breathalyzer test who have not been previously convicted, and who have not previously participated in the intoxicated driver diversionary program established under the bill. If the defendant's request for entry into the program is granted, the court is required to postpone all further proceedings against the defendant.
The court's evaluation of the factors set forth in the bill will determine a defendant's eligibility for entry into the program. A defendant is not eligible if the motor vehicle operated by the defendant in the commission of the offense was involved in an accident resulting in serious bodily injury to another person or contained one or more passengers under the age of 14; or if the defendant was previously convicted of drunk driving or refusal to take a breathalyzer test, or of a violation of a law of a substantially similar nature in another jurisdiction, unless the defendant can demonstrate by clear and convincing evidence that the conviction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.
The bill provides for appointment of a program director to implement the provisions of the bill. Treatment programs currently offered may be incorporated into the program, provided they are approved by the Division of Mental Health and Addiction Services.
An application fee of $75 is required for deposit into the "Intoxicated Driver Diversionary Program Fund" established under the bill. This fee would offset the cost of intake and monitoring services for defendants diverted under the bill.
The duration of the defendant's enrollment would be determined by the court, but may not be for less than 60 days nor greater than two years. The term may be shortened or terminated by the court based on the recommendation of the program director and with the consent of the prosecutor.
Procedures for violation of a term or condition of the program, and for determining whether a defendant's participation in the program should be terminated for non-compliance are established under the bill. Upon termination from the program, the court may enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant's prior plea of guilty or finding of guilt.
The bill prohibits disclosure to the prosecutor or admission into evidence of any statement by a defendant made or disclosed to a person designated to provide treatment pursuant to the program. However, the person providing treatment may inform the prosecutor or the court, upon request, as to whether or not the defendant is satisfactorily responding to treatment.
The bill further provides that upon successful completion of the program, and with appropriate notice to the prosecutor, the charges against the defendant may be dismissed with prejudice and removed from the defendant's driver history abstract. The dismissal would not be deemed a conviction, but would be reported and recorded for purposes of determining future eligibility or exclusion from the intoxicated driver diversionary program. The bill specifies that a dismissal is not deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a). A dismissal may be granted only once with respect to any defendant.
