The three-judge panel continued in relevant part: Initially, the text of the Manual, read in its entirety, does not support the State’s claims. For example, the Manual clearly states that “all violations of probation (VOP) should be screened” for possible admission, and a supervising probation officer may recommend that “the sentencing judge . . . consider drug court as an alternative to incarceration.” Id. at 7. The Manual does not prohibit screening VOPs for possible admission where the underlying charge was aggravated assault, even though a prior conviction for aggravated assault is a statutory bar to admission under N.J.S.A. 2C:35-14(a)(7). The Manual further provides that “at the time of re-sentencing to drug court [on a VOP], there must be a minimum of two years of a probationary term remaining to provide the probationer sufficient time to successfully complete the program.” Ibid. In other words, the Manual permits a sentence to Drug Court for a VOP, even though the potential sentence is less than the mandatory five-year probationary sentence required by N.J.S.A. 2C:35-14(a), and without the mandatory consequences for violations of special probation contained in subsection (f) of the statute.
This Court’s holding leaves open some interesting issues about the breadth of the eligibility changes that accompanied the changes in the Drug Court statute and Manual. In the rare cases where defendant’s get probation for No Early Release Act “violent offenses” for which the Drug Court statute prohibits drug court acceptance, could defendants be accepted so long as it was through a violation of probation? It seems counter-intuitive that they could get in to drug court after violating probation when they could not get in if they initially applied for drug court special probation. On the other hand, the Court’s opinion implies that a probation violation at the start of a probationary term would make the applicant more amenable to drug court than someone who did well on probation for years and only slipped up and needed drug court as an alternative to incarceration towards the end of their probationary term. It seems counter-intuitive under the circumstances to reward someone who never did well on probation while punishing someone who did well for an extended period.
Drug Court eligibility remains filled with anomalies. For example, our courts have long recognized that someone who “overcomes their addiction” after their offense but before drug court acceptance is not clinically appropriate for drug court. This seems counterintuitive because it not only punished those who take the initiative in treating their addiction, but it undermines a core drug court message: battling addiction is a “life-long” process.
