“The Bail Reform Law expressly authorizes a court setting conditions of pretrial release to order the defendant to refrain from use of any narcotic drug or other controlled substance without a prescription by a licensed medical practitioner, and to undergo available treatment for drug or alcohol dependency. N.J.S.A. 2A:162- l 7(b)(2)(h) and (i). Because many crimes are committed by persons while under the influence of a mind-altering drug (which may affect the ability to project future consequences and thus undermine the general deterrent effect of the threat of criminal punishment), or are committed to raise money to support the offender’s drug habit, an untreated addiction can be a reliable indicator of future criminal activity. See also subsection 7.6.4. Accordingly , when a prosecutor has an objective basis for believing that a defendant is drug or alcohol dependent as defined in N.J.S.A. 2C:35-14, the prosecutor shall notify the court of the basis for this belief, and request that, as a condition of release, the defendant be ordered to refrain from use of any narcotic drug or other controlled substance without a prescription by a licensed medical practitioner , and to undergo available treatment for drug or alcohol dependency as authorized by N.J.S.A. 2A:162- l7(b)(2). See also N.J.S.A. 2C:35-14. 1 (defendant required to submit to professional diagnostic assessment).
In determining whether there is an objective basis to believe that the defendant is suffering from the disease of addiction, the prosecutor may consider all relevant circumstances, including but not limited to the following:
whether the defendant appeared to be under the influence of a controlled substance or alcohol at the time of the offense, or has admitted to being a drug user;
whether the defendant previously has been arrested or convicted for drug possession; and whether the defendant previously has been admitted to or found clinically eligible for the Drug Court Program.”
A foreseeable consequence of attempting to control defendant’s behavior with drug testing before they have been found guilty of anything is that many otherwise law-abiding suspects who use drugs, including marijuana, will be incarcerated for failing a drug test even in cases where the pending charge(s) will ultimately end up dismissed. This is antithetical to a principle purpose bail reform, namely, to rid our jails of non-violent victimless offenders and avoid the astronomical costs of housing them in the jails.