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A first arrest for a disorderly persons offense in New Jersey, whether it's shoplifting, simple assault, harassment, or a small drug charge, doesn't have to end in a conviction. New Jersey municipal courts offer two one-time diversion programs for first offenders: conditional discharge for drug offenses and conditional dismissal for most other disorderly persons offenses.
If you complete either program, the charge is dismissed. Here's how each one works, who qualifies, and what it costs.
Why these programs matter
A disorderly persons conviction is a criminal record. It shows up on background checks for jobs, housing, schools, and professional licenses. It can also affect immigration status. The two programs give a first-time defendant a chance to keep that conviction off the record entirely.
The trade-off is that each program can be used only once in your lifetime. Using one also generally makes you ineligible for the others, including Pretrial Intervention (PTI) in Superior Court. So it's worth deciding carefully, with a lawyer, whether to use your one chance now or fight the charge.
Conditional discharge: first-time drug offenses
Conditional discharge, under N.J.S.A. 2C:36A-1, applies to disorderly persons and petty disorderly persons drug offenses under chapters 35 and 36 of the Criminal Code, such as possession of drug paraphernalia.
Who's eligible
You may qualify if you:
- have never been convicted of a drug offense under New Jersey law, or under the law of any other state or the United States, and
- have never been placed in supervisory treatment, such as PTI, a prior conditional discharge, or conditional dismissal.
The judge must also conclude that you don't pose a danger to the community, and that supervision will protect the public and help address any substance use.
How it works
The court suspends the case and places you under supervisory treatment on conditions it sets. Conditions often include drug testing, evaluation or treatment, and staying out of trouble. The term can't exceed three years. Many courts set a shorter period.
If you complete the terms, the court dismisses the case. The statute says the dismissal is "without court adjudication of guilt" and isn't treated as a conviction. If you violate the terms, the court can enter a conviction or resume the prosecution.
Cost
The application fee is $75. You'll also have to pay any restitution, costs, and other assessments required by law. The fee can be waived for poverty, or paid in installments.
Conditional dismissal: other first-time offenses
Conditional dismissal, created by P.L. 2013, c.158 and codified at N.J.S.A. 2C:43-13.1 to -13.9, covers most non-drug disorderly persons and petty disorderly persons offenses.
Who's eligible
Under N.J.S.A. 2C:43-13.1, you may apply if you:
- have no prior conviction for any petty disorderly persons offense, disorderly persons offense, or crime anywhere, and
- have never participated in conditional discharge, PTI, or a prior conditional dismissal.
Offenses that don't qualify
The law excludes offenses that involved:
- organized criminal or gang activity,
- a continuing criminal business or enterprise,
- a breach of the public trust by a public officer or employee,
- domestic violence,
- an offense against an elderly, disabled, or minor person,
- driving under the influence of alcohol or drugs,
- animal cruelty, or
- drug offenses under chapters 35 and 36 (those go through conditional discharge instead).
What the judge weighs
Even if you're eligible, admission isn't automatic. The judge considers factors including:
- the nature and circumstances of the offense,
- your age, character, and attitude,
- what the victim wants,
- whether the offense was violent or assaultive,
- whether the conduct is part of a pattern, and
- whether diversion serves the public interest.
The municipal prosecutor makes a recommendation. If the judge admits you over the prosecutor's objection, the prosecutor can ask for a 10-day stay to appeal to the Superior Court.
How it works
Unlike conditional discharge, conditional dismissal begins after a guilty plea or finding of guilt, but before a judgment of conviction is entered. You must be fingerprinted before you apply, so the prosecutor can verify your record.
If you're admitted, you're placed on probation monitoring for one year. The court can extend the term to give you time to pay what you owe, or for good cause.
If you stay out of trouble and meet the conditions, the court dismisses the case. If you're convicted of a new offense or violate the conditions, the court can enter a conviction based on your earlier plea.
Cost
The application fee is $75. If you're admitted, you'll pay any restitution, costs, and mandatory assessments that would have applied on conviction. The judge can also impose an assessment of up to the amount of the fine for the offense. The fee can be waived for poverty, or paid in installments.
What a dismissal does and doesn't do
A dismissal under either program isn't treated as a conviction, and it doesn't count as a prior offense for repeat-offender penalties. The dismissal is still reported to the State Bureau of Identification, though. That's how courts know you've already used your one diversion.
The arrest and charge also stay in court and police records until you expunge them. Under New Jersey's expungement law, you can generally apply six months after the dismissal. Don't skip this step. Without it, the arrest can still turn up in some background checks.
Should you take the program?
These programs are valuable, but they aren't always the best choice:
- Some cases should be fought. If there's a suppression issue, weak identification, or a self-defense claim, a full dismissal or acquittal may be possible without using your one-time diversion.
- Think about the future. If you use conditional dismissal now, you generally can't use PTI later for a more serious charge.
- Immigration consequences. For non-citizens, a guilty plea entered to get into conditional dismissal may carry immigration risk even if the case is later dismissed. Talk to a lawyer before entering any plea.
What to do right now
- Don't plead guilty at your first court date before you understand your options.
- Gather proof of your background, such as school, work, and community ties. It helps the judge weigh the factors.
- Ask whether a downgrade, dismissal, or trial is realistic before you choose diversion.
- After you complete a program, calendar the six-month date to file for expungement.
How we help
The Law Office of Edward Appel appears in municipal courts throughout New Jersey. We review the evidence first, to see whether your charge can be dismissed outright. If diversion is the right path, we prepare your application, address the prosecutor's concerns, and make sure the conditions are realistic for your life. When the program ends, we help you file the expungement so your record is fully cleared.
Call 856-823-1117 for a free, confidential consultation.
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Disclaimer: This article is general information about New Jersey law, not legal advice, and reading it does not create an attorney-client relationship. Laws change and every case turns on its facts. Call 856-823-1117 to discuss your situation.