The pre-trial intervention program (PTI) is often a defendant’s only shot at avoiding a felony record. The program is similar to a term of probation with two significant distinctions. One, it is only for applicants who have never been convicted of a felony and have never taken advantage of the PTI program in the past (or the municipal court’s version of the program, a “conditional discharge”). Two, program participation does not require an admission of guilt. Therefore, unlike a standard term of probation, the charges are dismissed upon successful completion of the program.
But getting accepted into the program can be an uphill battle. Too often, attorneys have their clients apply without preparing them for the PTI interview. This is due to laziness, or more often because of a lack of knowledge of the PTI interview process and relevant case law.
A common pitfall in the interview process is when an applicant charged with a drug distribution related offense is asked if they have recently had a drug problem and they respond “no.” This negative response is usually due to ignorance of their own problem or because they are afraid to admit to their interviewer, a probation officer and authority figure, that they partake in illegal activity in addition to the charged offense. The bottom line is that a drug dependent person’s self-report is unreliable. It should not be a per se basis for PTI rejection. In fact, denial and the inability to recognize a drug problem are cited by the American Society of Addiction Medicine as symptoms of drug dependency. See http://www.asam.org/for-the-public/definition-of-addiction.
An experienced and well-versed criminal defense attorney not only understands drug dependence, but understands that under our Court Rules, drug distribution without drug-dependence is a basis for PTI denial. This is just one of many examples of why a PTI applicant must be thoroughly prepared for the PTI interview.
Still, too many attorneys that hold themselves out as criminal defense practitioners simply tell their clients to apply for PTI and then tell them that there is little chance at prevailing on appeal after they are rejected. Since applicants have a very limited time to appeal the rejection and are usually unwilling or unable to hire a more effective attorney, they usually just accept a felony conviction, thinking it is inevitable.
However, a skilled attorney experienced with PTI appeals can always make a good argument in favor of relaxing the time period for a PTI appeal. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. R. 1:1-2(a). The guiding principle for interpretation and application of the court rules is the achievement of procedural due process in the service of substantial justice on the merits. R. 1:1-2, Official Comment.
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