Despite the “one time only” rule for diversionary programs, you may still be eligible for PTI if you had a previous conditional discharge for certain offenses.

What is pretrial intervention (PTI)?

PTI is a “diversionary program” of the NJ court system that allows people charged with first time criminal offenses to avoid prosecution and conviction. PTI program participants are supervised by probation officers, whose job is to help them deal with whatever problems led to the behavior and avoid future involvement with the justice system. Charges are dismissed for those who successfully complete the program. This relief has been especially helpful for those with low-level drug offenses. However, participation in PTI is limited to one time. A recent court case deals with whether that limit should apply to people who participated in PTI following an arrest for certain marijuana possession offenses, now that adult use of marijuana is legal in New Jersey.

How does the legalization of marijuana affect people with a prior record?

In 2021, New Jersey passed the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization  Act, which decriminalized adult possession of marijuana in New Jersey. Since marijuana possession is no longer illegal, the court created a system to automatically expunge the records of those convicted of marijuana use before it was legalized. But, what if you were not convicted but instead participated in a PTI program before going to trial? Should you be limited to the one-time use of a diversionary program if participation in it was for an activity that is no longer illegal? In State v. Gomes, the NJ Supreme Court said “no,” you should not.

How does the State v. Gomes decision affect me?

This court decision means that if you previously participated in a diversion program for decriminalized minor marijuana-related offenses and face another charge now or in the future, you will not be categorically barred from participation in a future diversion program, and can participate in PTI if otherwise eligible. In fact, courts and prosecutors are not allowed to consider your past marijuana related conditional discharge in making a decision about your eligibility for PTI.

The Court noted that Black people were arrested for minor marijuana offenses at rates three times higher than whites despite similar usage levels. This decision helps ensure that those previously subject to enforcement for minor marijuana related offenses are afforded access to remedial programs and not further prosecution.
See Supervision for Pretrial Intervention Clients (from NJ Courts) for more information about PTI.

If you need help expunging a record or need help with other civil legal issues, contact the LSNJLAW^SM Hotline at www.lsnjlawhotline.org or by calling 1-888-LSNJ-LAW (1-888-576-5529).

This information last reviewed: Mar 31, 2023