Attorney Michael Roberts recently presented oral arguments before the Appellate Division as amicus on behalf of the New Jersey State Bar Association (NJSBA), asserting that changes to New Jersey’s marijuana laws also affect pretrial intervention (PTI) records of individuals convicted of now-decriminalized marijuana-related offenses. Specifically, the NJSBA argues that under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), a person’s record is wiped clean of information related to offenses no longer criminal under the Act, as is evident in the provision allowing for automatic expungement of prior convictions.
Under New Jersey statutes, a person can be granted only one PTI. Once they have been allowed a PTI, they are no longer eligible for future criminal matters.
The present issue concerns whether the CREAMMA provisions clear a prior PTI a person was granted for a particular marijuana-related offense. The NJSBA holds that if the violation is no longer criminalized and the individual’s standing is restored as if they were never convicted, it would follow that their eligibility for PTI would also be reinstated.
Yet, Patrick F. Galdieri II of the Middlesex County Prosecutor’s Office sees things differently. In State v. Gomes, he said that it was not the Legislature’s intent to remove prior PTIs from a person’s record. Even if an individual was granted pretrial intervention for a now-decriminalized offense, they do not qualify for another.
The Appellate Division judges subjected Attorney Michael Roberts and others supporting a clearing of PTIs to a series of questions primarily concerned with the Legislature’s intent and why the removal of prior pretrial interventions was not explicitly written into New Jersey’s statutes.
On June 9, 2022, the Appellate Division held that CREAMMA did not amend the statutory bar prohibiting entry into PTI if a person had a prior diversion, even if that diversion was for a marijuana offense, now no longer illegal. They asserted that the language of New Jersey’s PTI, conditional discharge, and expungement statutes provides that a person previously granted a PTI must still disclose that information and the court must still consider it when charged with a subsequent offense even though records were expunged. The judges also said that if the Legislature had intended for prior PTIs to be wiped, they would have clearly indicated so when establishing CREAMMA.
The judges presumed that the Legislature is familiar with existing statutes and meant for provisions of CREAMMA to coincide with them. They invited the Legislature to intervene if they see fit. The New Jersey Office of the Public Defender has requested a Stay before the Appellate Division and intends to file a motion seeking leave to file an interlocutory appeal with the New Jersey Supreme Court.
About Attorney Michael Roberts
Michael, a partner at Roberts & Teeter, LLC, is a defense lawyer committed to protecting the rights of the accused. He serves as the Criminal Law Section Chair for the NJSBA, a 16,000-member organization.
If you need help fighting a charge, contact our New Jersey team by calling (732) 607-5553 today.