b. (1) A defendant shall not be eligible for participation in the conditional dismissal program if the offense for which the person is charged involved: (a) organized criminal or gang activity; (b) a continuing criminal business or enterprise; (c) a breach of the public trust by a public officer or employee; (d) domestic violence as defined by subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); (e) an offense against an elderly, disabled or minor person; (f) an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; (g) a violation of animal cruelty laws; or (h) any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of Title 2C.
Section (b) lays out additional bars to participation in the conditional dismissal program which do not apply to the conditional discharge program. Sub-sections (a) through (c) will very rarely be present with municipal court offenses. Those sub-sections address aspects that are almost strictly limited to indictable offenses such as racketeering and official misconduct. Sub-section (d) will bar the participation of many defendants who are charged with simple assault or harassment related to a domestic dispute. Sub-section (e) can bar anyone charged with a petty theft against an elderly person, which would most likely be defined as someone age 60 or older, consistent with 2C:44-1a (12).
Sub-section (f) can arguably bar participation for defendants who are charged with a disorderly person offense on the same occasion as they are charged with a DUI. I say “arguably” because it is not clear what is meant by the phrase “an offense involving.” Does having marijuana drug paraphernalia in the car at the time of a DUI charge for alcohol mean that the marijuana paraphernalia is an “offense involving driving under the influence of alcohol?” What if the basis for the DUI is marijuana intoxication but the marijuana paraphernalia that is found in the car was not the specific paraphernalia that was used on the date in question? Sub-section (g) is probably superfluous with the recent push to have animal cruelty offenses punished more severely as felonies since felonies cannot be resolved in a municipal court. Sub-section (h) codifies the fact that marijuana and drug paraphernalia offenses are addressed by the long-standing conditional discharge program, as opposed to the conditional dismissal program.
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