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New Jersey Criminal Law and Immigration: Conditional Discharge May Help First-Time Drug Offenders Avoid Deportation

On Behalf of | Aug 14, 2014 | Criminal Law & Municipal Court, Deportation |

Individuals charged with minor drug offenses in New Jersey in municipal court may be offered an opportunity to apply for and receive a conditional discharge. For a non-US citizen, it is critical to always consult with immigration counsel first before doing anything that is criminal related. Possession of marijuana offenses and paraphernalia offenses are particularly tricky because notwithstanding that fact that conviction of an offense related to controlled dangerous substances may render an individual deportable (not to mention disqualify him/her from receiving permanent residence), New Jersey’s conditional discharge program may offer an “out” or provide an escape clause.

What does the Conditional Discharge Program Provide?

Put simply, the program provides that for first time offenders charged with a disorderly persons or petty disorderly persons offense under Chapter 35 or 36 (which related to controlled dangerous substances and drug paraphernalia, respectively), such individuals may by motion (or by the Court’s own motion) be granted a conditional discharge, the effect of which is to suspend further proceedings against the defendant and place him/her under supervisory treatment.

2C:36A-1 goes on further to note: “Upon fulfillment of the terms and conditions of supervisory treatment the court shall terminate the supervisory treatment and dismiss the proceedings….Termination of supervisory treatment and dismissal under this section shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly persons offense….”

It is important to note that not everyone will be eligible for Conditional Discharge. Only a person “who has not been previously been convicted of any offense under section 20 of P.L. 1970, c.226 (C.24:21-20), or a disorderly persons or petty disorderly persons offense defined in chapter 35 or 36 of this title or, subsequent to the effective date of this title, under any law of the United States, this State or any other state relating to marijuana, or stimulant, depressant, or hallucinogenic drugs, and who has not previously participated in a program of supervisory treatment pursuant to N.J.S.2C:43-12 or conditional dismissal pursuant to P.L.2013, c158 (C.2C:43-13.1 et al.) is charged with or convicted of any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of this title” is eligible.

What are the potential immigration consequences?

A defendant may enter into a conditional discharge either before a plea of guilty or after a plea or finding of guilty. The juncture at which a person is admitted is very important in terms of immigration ramifications. Even though the charges are subsequently dismissed upon successful completion of the program, any guilty plea that is entered prior to admission may still exist and remain for immigration purposes. The Department of Homeland Security may very well argue that the guilty plea constitutes a “conviction” which could subject the individual to charges of deportability. On the other hand, if there is no guilty plea, and the charges are subsequently dismissed, the individual is much more insulated from charges of removability. It is important for any criminal defendant who is charged with a drug offense in New Jersey to consult with both a criminal defense and immigration attorney to determine what types of alternative dispositions may be available to ameliorate the harsh collateral consequences of a conviction.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.