America’s views on marijuana are rapidly changing from years ago when it was considered an introduction to more serious drug abuse. Today, the stigma toward marijuana – also known as cannabis – has shifted, particularly for medical use and for treating chronic pain.
Recognizing the overwhelming support for marijuana, on February 22, 2021, Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalizing the recreational use of marijuana in New Jersey for adults age 21 and older. Under the new law, the use or possession by adults of up to six ounces of marijuana is no longer a crime and bears no civil or criminal consequences.
Defense Attorneys Seek A Second Chance At PTI for Clients
Subsequently, The Marijuana Decriminalization Law, which took effect July 1, 2021, required the expungement of certain marijuana and hashish cases. This statute does not provide for the automatic expungement of marijuana offenses or convictions, unless your arrest or conviction took place after May 15, 2021, in which case your status should be automatically sealed. For those arrests or convictions that take place prior to May 15, 2021, a formal petition for expungement must still be filed. As a result, the Supreme Court has ordered thousands of cases to be expunged.
However, the law has given rise to problems. Prior to the new law, Pretrial Intervention (PTI) – a program that offers alternatives to incarceration and demonstrates to the court self-improvement intent – is a one-time offender program precluding defendants from enrolling a second time. Now that the offending crime is legal, it seems only fair that defendants be given another chance at PTI. In light of the law, there is a growing wave of criminal defense attorneys in New Jersey who are arguing that their clients should be eligible for PTI now that their cases are expunged and are seeking equity and consistency throughout the state.
NJSBA Files a Motion As Amicus in Support of Uniformity in PTI Following the Passing of CREAMMA
A series of cases pending in the New Jersey Appellate Division will determine how past marijuana offenses will be viewed when defendants are being considered for PTI. The four cases being considered ask whether the person, who has previously participated in PTI for an offense now expungable due to the passage of CREAMMA, is eligible for PTI services a second time. In support of these cases, and to address discrepancies in the law from county to county, the New Jersey State Bar Association (NJSBA) filed an amicus motion in State v. Gomes (A-3477-20). Arguing clear legislative intent, the NJSBA said individuals who received PTI for a now-expungable marijuana offense should not be precluded from a future PTI as a result of the statute barring more than one admittance to the program. The brief also calls for fair treatment and uniformity throughout the state in the interpretation of CREAMMA and the PTI Statute. NJSBA Criminal Law Section Chair-Elect Michael Roberts wrote the brief. The other pending cases are State v. Barry (A-697-21), State v. Chiriboga (A-581-21) and State v. Sheira (A-198-21).
State v. Gomes (A-3477-20)
In State v. Gomes, the defendant was found ineligible for PTI for a charge of driving while intoxicated and two counts of assault by auto because of his previous conditional discharge for possession of marijuana in 2013. The trial court granted his application for PTI holding that CREAMMA expunged the underlying charge leading to Gomes’ first PTI “by operation of law.”
Superior Court Judge, Joseph Paone, in granting defendant Gomes’ application for PTI, concluded as a matter of law that “It is evident that when a statute, such as the one enacted here, provides that one who commits an offense subject to a conditional discharge must have that offense ‘expunged by operation of law, and any remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment… shall be vacated by operation of law,’ it must then follow that any other collateral consequence for the expunged offense should also be prohibited, including the statutory bar to PTI eligibility for one who had been previously enrolled in a diversion program pursuant to the conditional discharge statute.”
In its appeal, the state argued Gomes’ participation in PTI “rendered him statutorily ineligible for PTI” regardless of the fact that the underlying marijuana possession offense had been expunged by operation of law.
In urging that the trial court’s decision on Gomes be affirmed, the NJSBA said “the trial judge properly recognized that individuals who were previously convicted of marijuana offenses covered by [CREAMMA] should not be automatically prohibited from admission into PTI on the sole account of the prior supervisory treatment that is no longer a crime.”
Fair and Equitable Treatment
The NJSBA’s involvement in PTI for expunged marijuana cases remains focused on the issue of uniformity for the fair and equal treatment of these and future defendants throughout New Jersey. Although the laws are changing, minority, low-income and immigrant communities still bear the burden of criminal records from marijuana convictions. Racial disparity in marijuana arrests is staggering with people of color being arrested for violating marijuana possession laws at nearly four times the rates of whites, yet both ethnicities consume marijuana at roughly the same rates. No decision has been made yet as to the NJSBA’s filing for leave to appear as amicus, and the NJSBA continues to monitor this matter and decisions similarly situated. Another takeaway from the automatic expungement of marijuana cases in the State of New Jersey is that foreign nationals seeking to adjust their status to lawful permanent residents or applying for naturalization must have all of their records with regards to the arrest reports, investigative narratives, lab reports, and certified disposition. Once a case is expunged, it is nearly impossible to obtain records. This is yet another obstacle noncitizens residing in New Jersey must hurdle. For this reason, those who were charged with marijuana offenses should reach out to defense counsel who represented them to get a copy of their criminal proceedings file or contact the court (Municipal Court or Criminal Division of the Superior Court in the County where the charge was lodged) to request a complete copy of discovery. Discovery is all of the reports related to the investigation of the crime upon the person’s arrest.
The Law Office Of Michele Alcalde Can Help Immigrants Navigate New Marijuana Laws
Understanding marijuana offenses is particularly significant in matters of immigration. On the positive side, the new laws are beneficial to immigrants with pending marijuana cases who will see their charges dismissed. Marijuana convictions – no matter how old or how small – can disqualify a person from immigration status or be the basis for deportation. A single marijuana conviction can cause a DACA recipient to lose their protected status and place them in deportation proceedings. No one understands the law and the repercussions of such charges better than Michele Alcalde. She looks beyond the obvious regarding why someone might have strayed because of difficult circumstances and advocates for the fair treatment of clients facing the immigration consequences of a marijuana arrest or conviction. Find us at our social media accounts or call us at 732.766.1407.
Posted in: Expungement Law, Immigration