The Jersey Lawyer

On May 18, 2010, Patricia Blakely, a middle school teacher in Randolph, New Jersey, was pulled over on Route 10 west by Roxbury police.  The officer that pulled Blakely over suspected that she might be operating the vehicle while under the influence of alcohol in violation of N.J.S. 39:4-50 because the teacher appeared confused and was slurring her speech.  While police officers were questioning Blakely, who was in her vehicle, she put the vehicle in drive and took off from the scene.  In the process, she nearly ran over the officer’s foot.  Officers were able to stop Blakely again further down the highway.

As a result of this incident, Blakely now faces several charges, including driving while intoxicated, having an open alcoholic beverage in a motor vehicle, reckless driving, and eluding.  The eluding charge, which is the most serious charge she faces, is an indictable offense in New Jersey, and accordingly the matter has been referred to the Morris County Prosecutor’s Office.

Under N.J.S. 2C:29-2(a), a person can be charged with fourth-degree eluding if she, by flight, purposely prevents or attempts to prevent a law enforcement officer from affecting an arrest.  A fourth-degree crime carries a prison sentence of up to 18 months.  Eluding is elevated to a third-degree crime if the person uses or threatens to use physical force or violence against a law enforcement officer or uses any other means to create a substantial risk of causing physical injury to a public servant or any other person.

Eluding is also a third degree crime under N.J.S. 2C:29-2(b) if the person flees from police while operating a motor vehicle after police have given her a signal to stop.  A third-degree crime carries a prison sentence of three to five years.  Also under N.J.S. 2C:29-2(b) a person can be charged with second-degree eluding if she attempts to flee from police while operating a motor vehicle and in so doing creates a risk of death or injury and the person violates certain motor vehicle laws, including operating a motor vehicle while intoxicaed.  A second degree charge carries a prison sentence between five and ten years and also carries a presumption of imprisonment.

In Ms. Blakely’s case, she has recently applied for pre-trial intervention under N.J.S. 2C:43-12.  Pre-trial intervention is a diversionary program for first-time, non-violent offenders.  The goal of the program is to provide applicants with an opportunity to avoid ordinary prosecution by receiving early supervision or rehabilitative services; to provide an alternative to prosecution in order to avoid the harm caused by a criminal record where that would be a sufficient deterrent of future criminal conduct; to provide a mechanism for permitting the least burdensome form of prosecution for defendants charged with victimless crimes; to conserve judicial resources and allow for more efficient handling of court calendars; and to deter future criminal conduct.

When determining whether to permit an applicant into a pre-trial intervention program, prosecutors and PTI program directors can consider several factors, including: the nature of the offense; the facts of the case; the motivation and age of the defendant; the desire of any complainant or victim to forego prosecution; the existence of personal problems or character traits of the defendant which are related to the crime committed for which services can more effectively be provided through supervisory treatment; the likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through participation in supervisory treatment; the interests of society; the extent to which the defendant’s crime constitutes a part of a continuing pattern of anti-social behavior; the defendant’s record of criminal or penal violations; the assaultive nature of the crime charged; whether prosecution would exacerbate the social problem that led to the applicant’s criminal act; any history of physical violence towards others; involvement with organized crime; whether the crime is of such a nature that the value of supervisory treatment is outweighed by the public need for prosecution; the status of cases pending against co-defendants; and whether the harm done to society by abandoning traditional prosecution outweighs the benefit to society of providing supervisory treatment.

Generally, when a person is admitted to PTI, he is given a period of supervision between one and three years.  The type of supervision is similar to ordinary probation.  If the applicant is able to complete all of the terms of probation and is not charged with any new offenses during the the PTI period, all charges are dismissed and the applicant’s criminal record remains clean.

In Ms. Blakely’s case, she may be a candidate for PTI if she is a first-time offender.  Since she is a public employee, if it is determined that the crime she is alleged to have committed somehow touches on her employment as a teacher, she may be denied admission into the PTI program as there is a presumption against admission into PTI for such defendants.  Also, if she is charged with second-degree eluding, it may be more difficult for her to be admitted into PTI as a second-degree charge requires a joint application into the PTI program by the defendant and the prosecutor.  Moreover, in cases that involve a breach of the public trust, an applicant should be rejected from enrollment into PTI if enrollment would diminish the seriousness of the crime.

In addition, while PTI may provide a diversion for any crimes she is charged with, generally the DUI case and other traffic violations will still be referred to the municipal court for prosecution.  If they are not referred to the municipal court for prosecution, the postponement of prosecution provided by the PTI program may raise speedy-trial issues one the municipal court charges.

PTI is an excellent way for non-violent first-time offenders to avoid a criminal record.  In many cases, enrollment into the PTI program is one of the best results that a criminal defendant can obtain short of a full acquittal.  Therefore, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer in order to discuss the various options available for avoiding prosecution, such as PTI, in addition to other available defenses and strategies.