PTI Loophole Closed in State v. O’Brien

The Appellate Division put a stop to a fairly common technique utilized be criminal defense attorneys seeking to have an otherwise ineligible defendant admitted into the PTI program.

Under normal circumstances, a defendant is only afforded one chance at the PTI or Conditional Discharge (CD) Program. While the program is typically only offered to first offenders, under certain circumstances, it may be available to defendant’s with a prior conviction, but never offered to a defendant who has already used a PTI or CD.

In State v O’Brien, the defendant attempted to circumvent the one and done rule by reopening his prior (20 yr old) marijuana related CD in the municipal court. He then pleaded guilty to the original offense, thus removing the Conditional Discharge from his record. This, in turn, made him PTI eligible.

The Court in O’Brien said NO. The Court held that admittance into the CD or PTI program is all that is needed to create the statutory bar to admission on a subsequent occasion.

My question is this. What if the first CD or PTI really should be vacated because of an honest to goodness legal issue? What if the defendant chooses (legitimately) to fight that charge? How is the subsequent court so sure that the reasons for challenging the first case are strictly a desire to side step the admission requirements?

I think we will hear more about this one.


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