If a person is accused of a serious crime involving drugs, they may be offered entry into a program called Drug Court. Basically, the program is designed to take non-violent drug offenders out of the prison system and place them into an intensive program for drug treatment and rehabilitation. The person would have to be a non-violent offender and face criminal charges that would normally carry prison time, they must be a drug addict, and their criminal behavior must be motivated by their addiction. Needless to say, there are many people in the New Jersey criminal justice system who may qualify for Drug Court.

A question that typically is asked is, “what happens if I fail out of Drug Court?” This is a topic that every attorney must review with their clients if Drug Court is an option. And the answer to this question was recently discussed by the New Jersey Supreme Court in the consolidated cases of State v. Bishop and State v. Torres.

The Drug Court program is classified as “special probation”, which is a little different from regular probation. If someone is sentenced to ordinary probation, and they violate the terms of probation, the judge would re-sentence them anything that may have been sentenced when they originally pled or were convicted. But the statute for Drug Court and special probation has wording that is a little different: “any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent.” The difference is including that term “or that would have been required to be imposed”.

This is important because many serious crimes have mandatory enhanced penalties. However, in a typical plea scenario the prosecutor may ask the judge to waive the enhanced penalties as part of the plea deal, or agree to a lower charge that doesn’t carry an enhanced penalty. With Drug Court and special probation, this isn’t done. The person pleads guilty, and as an alternative to the regular sentencing they are placed into the program. Therefore, if the person fails out of the program, the judge would then sentence them according to the original charge, with the enhancements. The defendant does not get to pitch an argument to the judge, asking to waive the enhancements, which is something that could be done in the case of a violation of ordinary probation.