Drug Possession or Paraphernalia Charge Conditionally Discharge
This section of our site deals with the subject of Conditional Discharge. If you have been charged with a disorderly person offense involving drugs (e.g. failure to make disposition, possession, etc.) or an indictable CDS offense that has been downgraded to municipal court, you may be able to avoid prosecution by having the matter conditionally discharged. Conditional discharge has also been achieved in drug cases like heroin, cocaine, and prescription medication abuse.
Conditional Discharge Law: N.J.S.A. 2C:36A-1
The definition and terms for Conditional Discharge in New Jersey are contained at N.J.S.A. 2C:36A-1. This section of NJ law outlines the requirements to avoid a criminal record through completion of conditional discharge probation. It is important to keep in mind that since this relief is limited to a Disorderly Persons Offense involving drugs, for example, possession of marijuana or drug paraphernalia, it is typically encountered in municipal court.
It Not a Conviction. Admission into probation under 2C:36A-1 does not give rise to a criminal record, conviction nor is an admission of guilt even required. The reason for this arises out of the fact that, when an individual is admitted into the program, his or her charge is conditionally dismissed without a plea. When the conditions of the dismissal are fulfilled, the conditional discharge becomes a dismissal with prejudice (i.e. permanent).
• No Prior Controlled Dangerous Substance Convictions. An individual is only entitled to participate if they have met the requirement of no prior conviction for a controlled dangerous substance offense, for example, possession of drugs.
• Never Diverted Before. Those who have already received the benefit of a diversionary program such as Pretrial Intervention or a prior conditional discharge are ineligible under 2C:36A-1.
• Violation of Terms. If an individual violates the conditions of his or her discharge, a termination is issued and the original complaint is reinstated; in other words, the accused is forced to defend the original charge from the beginning.
• Length of Probation. While the term of supervision can be one to as long as three years, the norm is one year.
• Extent of Supervision. Most offenses that are conditionally discharged give rise to almost no supervision. Nonetheless, the law allows for probation and some municipalities and/or counties take a more active approach. This typically refers to a demand that the defendant submit to a random drug test to demonstrate that he or she is drug free.
Relationship With Possession of CDS in a Motor Vehicle Under N.J.S.A. 39:4-49.1. A disorderly person offense for possession of paraphernalia or possessing a drug is frequently encountered in the context of a Motor Vehicle Stop and it is common to see a commensurate charge alleging violation of N.J.S.A. 39:4-49.1, Possession of CDS in a Motor Vehicle. N.J.S.A. 39:4-49.1 is an entirely separate motor vehicle charge that may or may not be merged into a conditional discharge, in the discretion of the prosecutor. Absent dismissal or merger of the 39:4-49.1 offense, an individual is exposed to a two year loss of license.
Suspension of License Because of a Conditional Discharge. The law permits the court to suspend an individual’s license under the discharge law although an accused may introduce a hardship argument and, if successful, a license will not be suspended.
Interplay with Pretrial Intervention. Conditional discharge is only available with respect to disorderly persons offenses.