​​​Special Education Law
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Special Education Law and Criminal Defense

CRAIG DAVID BECKER

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CBECKER@CBECKERLAW.COM

 

New Jersey & Pennsylvania Special Education & Criminal Defense 

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Articles, by Craig David Becker 

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April 20, 2020


Right to Proper Reading Education

By Craig David Becker


Under the federal law special education students have a right to proper and effective reading instruction. In the case of the Ridley Sch. Dist. v. M.R., 680 F.3d 260, 278-279 (3d Cir. Pa. 2012) the Court recognized the student’s right to an appropriate reading program. In this case the parents wanted the Wilson reading program for their child. The Court recognized that the School District’s chosen reading program Project Read was appropriate in part because it was a peer review program. Despite the parents’ success in the initial hearing the Federal Court overturned the case in favor of the school district. The 3d Cir. Ct. App. stated: 

We understand Parents' concern that the available studies did not test Project Read's effectiveness for students with E.R.'s unique combination of disabilities. However, the research discussed in the FCRR review involved children of E.R.'s age who struggled with reading, and indicated that Project Read was helpful in improving the reading skills of such students. Additionally, Hodges, Grace Park's resource room teacher, and Woods, Ridley's director of special education, both of whom have expertise in the field of special education, testified that Project Read was an appropriate reading program for E.R.10 Woods explained that, “Project Read is a multi-sensory program that is based on Orton Gillingham's principles that support learning disabled students. The research from Florida was very promising in terms of these students doing quite well.” Woods further testified that “[t]he program ... had a lot of components that learning disabled students learn by [including] what we called VAKT program, visual, auditory, kinesthetic, and touch. And most learning disabled students do very well when you bring all of the senses into the learning process.” Hodges also testified that Project Read was a research-based program and similar to other reading programs, such as The Wilson Reading System.

[Ridley, 680 F.3d at 278]

One of the flaws that I found in the parents’ case was that they failed to explain why the Wilson program was necessary to provide the child an appropriate education. As the Court recognized, an IEP does not need to provide optimal services only services that are effective.

Although the IEP must provide the student with a “basic floor of opportunity,” it does not have to provide “the optimal level of services,” or incorporate every program requested by the child's parents. [D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir.2010)] (citations omitted); Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir.1989) (explaining that the IDEA guarantees to a disabled child “an education that is appropriate, not one that provides everything that might be thought desirable by loving parents” (internal marks and citations omitted)). “[A]t a minimum, the IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential,” Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 182 (3d Cir.2009) (citation omitted), and “individual abilities,” Ridgewood Bd. of Educ., 172 F.3d at 248. See Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d Cir.1986) (stating that an IEP must “be likely to produce progress, not regression or trivial educational advancement”) (citation omitted).

[Id. at 269] 

The Court found that the hearing officer’s decision failed so show why the Wilson reading program was necessary.

The Hearing Officer found that E.R.'s IEP was inadequate, both for the end of the 2007–2008 school year (first grade), and all of the 2008–2009 school year (second grade) primarily because it “fail[ed] to provide a scientifically research-based, peer reviewed reading program, which [E.R.] needed in order to make meaningful progress.” The Hearing Officer stated that although Project Read, the reading program chosen for E.R., “was designed to be research based,” there were “flaws in the research supporting it.” These statements were made in conclusory fashion, without elaboration, in a footnote of the Hearing Officer's 20–page opinion. They were not well-explained or well-supported.

The District Court reversed the Hearing Officer's decision that the IEP was inappropriate, reasoning that the lack of a peer-reviewed instructional program was not automatically fatal to an IEP, and even if it was, Project Read was research-based and peer-reviewed.


[Id. at 269]

The Court explained that school districts are not required to use the optimal program. School districts have discretion to pick from any effective program. School districts can also take into consideration other factors, such as costs, when selecting a program.

Parents argue that, in contrast to Project Read, the program they requested, The Wilson Reading System, has been shown to be effective for teaching students with learning disabilities similar to those of E.R. However, Ridley did not have to choose the specific program requested by Parents. See D.S., 602 F.3d at 557. Nor did it have to choose the program supported by the optimal level of peer-reviewed research. Seeid.; 71 Fed. Reg. at 46,665 (explaining that a school does not have to choose the program supported by the “greatest body of research”). “The IDEA accords educators discretion to select from various methods for meeting the individualized needs of a student, provided those practices are reasonably calculated to provide h[er] with educational benefit.” R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1122 (9th Cir.2011) (citations omitted); see Rowley, 458 U.S. at 207, 102 S.Ct. 3034 (explaining that school districts have “[t]he primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs”). In selecting special education programs, a school district must be able to take into account not only the needs of the disabled student, but also the financial and administrative resources that different programs will require, and the needs of the school's other non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir.2000) (explaining that, in the context of the Rehabilitation Act, courts must be aware of the “need to strike a balance” between the rights of the disabled student and fiscal and administrative concerns); 71 Fed. Reg. at 46,665 (rejecting a proposed requirement on an IEP team as “overly burdensome”)

[Id. at 278-79] 

The court also refused to set a bright-line rule concerning the use of peer-reviewed services.

We will not set forth any bright-line rule as to what constitutes an adequately peer-reviewed special education program; hearing officers and reviewing courts must continue to assess the appropriateness of an IEP on a case-by-case basis, taking into account the available research. We recognize that there may be cases in which the specially designed instruction proposed by a school district is so at odds with current research that it constitutes a denial of a FAPE. See, e.g.Waukee Cmty. Sch. Dist. v. D.L., No. 07–00278, 51 IDELR 15(LRP) (S.D.Iowa Aug. 7, 2008) (explaining that a student was denied a FAPE, in part, because the school district frequently employed strategies which contradicted the relevant research and were even inconsistent with the school's own assessment of the appropriate program for the student).

[Id. at 279] 

The Court did recognize that if practical the use of peer-reviewed services would be an issue the Court would heavily way in deciding if the school district provided the student with an appropriate education.

Additionally, if it is practicable for a school district to implement a program based upon peer-reviewed research, and the school fails to do so, that will weigh heavily against a finding that the school provided a FAPE


[Id. at 279] 

The problem, in my opinion, with the parents’ argument in Ridley was that the parents failed to sufficiently show why Wilson was necessary for their child to receive an appropriate education. Guidance from the federal government has recognized that in rare cases, where it is necessary for student to receive appropriate educational services, an Individualized Education Program (“IEP”) may dictate certain educational methodologies. See, Letter from Stephania S. Lee, Director Office of Special Education Programs, U.S. Department of Education, to C. Emerson Dickman, Esquire (April 2, 2002).

Part of the reason the parents may have failed to properly argue their child needed Wilson was that is often difficult to prove that the program like Project Read will not be successful for a student. In my experience the difficulty with Project Read is often not the lack of peer-reviewed research but the fact that is often easier to train a teacher to teach Project Read then it is to train the teacher to teach Wilson. Project Read is often taught by less experienced teachers who are limited in their ability to adapt to the needs of the special education student. I have convinced school districts to use a different reading methodology by demanding that the IEP included detailed goals and objectives that clearly measured student’s progress. When a student failed to make appropriate progress with the program such as Project Read then I had reasons to demand a different program.

I would caution parents not to rely on the brand name programs. I have seen cases where a student has made outstanding progress when they have a dedicated a creative teacher teaching a program like Project Read. Often it is the skill of the teacher, not the name of the program ,that has the biggest impact. 



March 03, 2020


Abusing Reasonable Accommodations for Education

By Craig David Becker

 The special education laws and related plans such as the Individualized Education Programs (“IEP”) and 504 service plans (“504”) are valuable tools to assist students with disabilities to obtain appropriate and fair educations. The goal of these plans is to provide education services to allow the disabled individuals to make meaningful progress and to fairly participate in their education. Unfortunately, as we have seen in the recent news, some affluent parents have used inappropriate means in order to provide an educational advantage to their children especially in the context of college admission. This has made getting accommodations for some students more difficult as these laws are being held under greater scrutiny.

The Americans with Disabilities Act Section 504 was created to give disabled individuals fair access to government benefits. 29 USCS § 794, 34 C.F.R. § 104.33. This includes public education (in some cases private education that accepts government funds). SeeId. Comparable to a student with a wheelchair, a student with emotional difficulties or learning problems requires fair accommodations to participate in their education. Everyone would agree that the student with a wheelchair is entitled to a ramp to enter a classroom. The same logic should apply to students with emotional problems who cannot enter a classroom without certain modifications, or who needs periodic breaks throughout the day. If the student’s anxiety makes it impossible for them to sit in a classroom for more than 30 minutes without a break, the periodic breaks are equivalent to a ramp.

This can become a significant problem during testing. Most tests are designed to evaluate the student’s understanding of a particular subject or skill. If a student’s reading disability causes the student to read slower, a test will not properly measure student’s knowledge or skills due to the fact that the student was unable to complete a test in time. The same is true for the anxious student who didn’t complete the test due to their need for breaks or to re-center. This is why the law set out parameters for fair participation. If a student has a disability that affects one or more major life functions, that student is eligible for reasonable accommodations necessary to allow the student to fairly and equally participate in their education. See 34 C.F.R. § 104.33 The accommodations should be designed to put the student on the same level the student would have been had the student not had a disability. Id. There is a reasonableness standard when considering what services are necessary under section 504.

In Southwestern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the United States Supreme Court held that an “otherwise qualified” handicapped individual is one who can meet all of a program's requirements in spite of his handicap. Id. at 406, 99 S.Ct. at 2367. In dictum, however, the Court indicated that an individual may be “otherwise qualified” in some instances even though he cannot meet all of a program's requirements. This is the case when the refusal to modify an existing program to accommodate the handicapped individual would be unreasonable, and thereby discriminatory. Id. at 412-13, 99 S.Ct. at 2370; Prewitt v. United States Postal Service, 662 F.2d at 305 (referring to such a refusal to accommodate a handicapped individual as “surmountable barrier discrimination”). SeeSimon v. St. Louis County, 656 F.2d 316 (8th Cir.1981), cert. denied, 455 U.S. 976, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1982); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980).

In Davis, the Supreme Court indicated that two factors pertain to the reasonableness of a refusal to accommodate a handicapped individual. First, requiring accommodation is unreasonable if it would necessitate modification of the essential nature of the program. See Southwestern Community College v. Davis, 442 U.S. at 410, 413, 99 S.Ct. at 2369, 2370 (section 504 does not require fundamental, major or substantial program modifications); 29 C.F.R. § 1613.705 (1983) (Department of Health, Education and Welfare regulations implementing section 504) (selection criteria which screen out handicapped individuals must pertain to essential functions of the program in question). Second, requiring accommodation is unreasonable if it would place undue burdens, such as extensive costs, on the recipient of federal funds. Davis, 442 U.S. at 412, 99 S.Ct. at 2370; Nelson v. Thornburgh, at 379-382. [Strathie v. Dep't of Transp., 716 F.2d 227, 230 (3d Cir. 1983)]

 
Services can include an assurance of a safe environment.

The U.S. Department of Education's Office of Civil Rights (OCR), which is the federal agency that enforces Section 504, has interpreted Section 504's mandates as “requir[ing] that public schools take steps that are necessary to ensure that the school environment for students with disabilities is as safe as the environment for students without disabilities.” Washington (NC) Montessori Pub. Charter Sch., 60 I.D.E.L.R. 79 (August 16, 2012). In the context of food allergies, the OCR has explained that,
 
[a]s the vast majority of students without disabilities do not face a significant possibility of experiencing serious and even life-threatening reactions to their environment while they attend school, Section 504 ... require[s] that [a school] provide students with peanut and/or tree nut allergy (PTA)-related disabilities with a medically safe environment in which they do not face such a significant possibility. Indeed, without the assurance of a safe environment, students with PTA-related disabilities might even be precluded from attending school, i.e., may be denied access to the educational program. [Ibid.]

[K.I. ON BEHALF OF K.I., Petitioner, v. MOORESTOWN TOWNSHIP BOARD OF EDUCATION, Respondent., 2017, 2017 WL 1017574, at *6 (N.J. Adm. Mar. 7, 2017)]

Unfortunately, these laws create the possibility of abuse by parents trying to obtain advantage for student. As more scrutiny falls on the parents who attempt to use special education law for educational advantage, parents of students with legitimate disabilities need to be more proactive.

I recommend that parents request accommodations early and show evidence that the student has used the accommodations. One of the biggest warning signs for the College Board, the entity that administers the SAT and other standardized tests, is when a student first show signs of the disability in 10th or 11th grade. Establishing a clear track record of the disability throughout the child’s education can be crucial in obtaining accommodations.

 It is also important that a parent obtain comprehensive and clear testing. Many parents attempt to get accommodations for a student based on a Doctor’s note or other informal document. They believe that since a school district granted the accommodations that the same should apply the standardized tests. Unfortunately that is not true. College boards and related entities will look closely at the rationale for the accommodations. For this reason it is very important that parents obtain clear and comprehensive evaluations of their children early on and that they consult with a professional to make sure the evaluations are legally sufficient. Unfortunately I have seen many parents scramble close to the date of the SAT or other tests to obtain accommodations. This puts the student in a risky situation where the student may never get the appropriate or necessary accommodations
.



November 25, 2019


Wiping the Record Clean: Juvenile Expungements

by Craig David Becker

It is believed that a record of multiple offenses bars a person from expungement. There are exceptions to this, and one significant exception concerns juvenile adjudications. It is important that an attorney is aware of this exception as it effects not only the juvenile record but potentially also expunging the adult record. A person may have their entire juvenile record expunged. N.J.S.A. 2C:52-4.1b. Additionally, any person who has been adjudged a juvenile delinquent may have their entire record of delinquency adjudications expunged if:

(1) Three years have elapsed since the final discharge of the person from legal custody or supervision, or three years have elapsed after the entry of any other court order not involving custody or supervision, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c. 77 (C.2A:4A-44), shall not be considered in calculating the three-year period for purposes of this paragraph;

(2) They have not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the three years prior to the filing of the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication, except that periods of post-incarceration supervision pursuant to section 25 of P.L.1982, c. 77 (C.2A:4A-44), shall not be considered in calculating the three-year period for purposes of this paragraph;

(3) They were never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S.2C:52-2;

(4) They never had an adult conviction expunged; and

(5) They have never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.

 The case of In re D.J.B. 216 N.J. 433(2014) is instrumental in providing analysis on this issue. In the case the following occurred:

After a hearing before the trial court, at which D.J.B. was represented by an attorney, the judge ordered that D.J.B.'s juvenile record be expunged but denied the petition to expunge his adult conviction and disorderly persons offenses. In an unpublished opinion, the trial court explained that “[t]he combination of N.J.S.A. 2C:52–4.1(a) and N.J.S.A. 2C:52–2 serve to prevent a petitioner with an indictable crime from obtaining expungement if that petitioner has a prior juvenile record.” D.J.B.'s prior juvenile adjudications, the trial court found, therefore barred expungement of his adult conviction. [D.J.B., 216 N.J. 433, 438 (2014)]
 

D.J.B. appealed the case to the New Jersey Supreme Court. The New Jersey Supreme Court granted expungement of D.J.B.’s adult record. The court stated,

The 1979 statute, however, did not provide for expungement of juvenile adjudications. The Law Division's decision in State v. W.J.A., 173 N.J.Super. 19, 24–25, 412 A.2d 1355 (Law Div.1980), brought attention to that fact. In W.J.A., a thirty-five-year-old man sought to expunge three juvenile adjudications as well as certain adult records, which he would otherwise have to disclose in an application to the Casino Control Commission. Id. at 19, 21, 412 A.2d 1355. The trial court expunged the adult records but not the juvenile adjudications. Id. at 25, 412 A.2d 1355. The court explained that “[u]ntil such time as the Legislature authorizes expungement for juvenile delinquency adjudications as opposed to” adult records, “the sole remedy to prevent disclosure lies in the sealing statute.” Ibid. (citing N.J.S.A. 2A:4–67). That route, the court acknowledged, offered W.J.A. less protection than an order of expungement. Id. at 23, 412 A.2d 1355.

Within a year of the decision, the Legislature amended the expungement statute and added a process to expunge adjudications of delinquency. SeeL. 1980, c. 1963, § 1 (codified at N.J.S.A. 2C:52–4.1). The amended statute provided two paths to expunge records of adjudications: section 52–4.1(a), quoted above, which outlines how to expunge a juvenile adjudication; and section 52–4.1(b), which sets forth various conditions that apply to efforts to expunge an entire juvenile record. N.J.S.A. 2C:52 4.1(a),(b). A third section addresses the expungement of delinquency charges that were later dismissed. N.J.S.A. 2C:52–4.1(c).

The purpose of the amendment is clear from the Sponsor's Statement: 

Under present law, expungement is now authorized for records of convictions of certain crimes; convictions of disorderly persons offenses; violations of municipal ordinances and arrests not resulting in convictions. There is, however, no procedure authorizing the expungement of juvenile delinquency adjudications. Juvenile records may be “sealed” but they may not be expunged. 

The purpose of this bill is to allow for the expungement of juvenile delinquency adjudications. It provides that such records may be expunged under the same conditions as if the act which resulted in the adjudication of delinquency had been committed by an adult.

Additionally, the bill provides that a person may have his entire juvenile record expunged if he has not been convicted of a crime or a disorderly or petty disorderly persons offense or adjudged a delinquent ... for a period of 5 years and his record contains no offense which could not be expunged if committed by an adult.
 
[S., No. 1266 (Sponsor's Statement), 199th Leg. (N.J. May 5, 1980) (emphasis added); seealsoS. Judiciary Comm. Statement to S., No. 1266, 199th Leg. (N.J. June 9, 1980); Assemb. Judiciary, Law, Public Safety & Defense Comm. Statement to S., No. 1266, 199th Leg. (N.J. Aug. 7, 1980).]

Nothing in the legislative history suggests that the amendment was meant to affect the expungement of adult records. See J.B., supra, 426 N.J.Super. at 506, 45 A.3d 1014.


[Id. at 444–45]

The Court reasoned making a prior finding of juvenile delinquency a bar to expungement is counter to the principle and spirit of the Juvenile Justice system.

Parts of the Code of Juvenile Justice offer further guidance. The Code expressly states that its purpose is “to remove from children committing delinquent acts certain statutory consequences of criminal behavior.” N.J.S.A. 2A:4A–21(b) (emphasis added). More specifically, the Code declares that a juvenile who is adjudged delinquent is not “deemed a criminal by reason of such disposition” and that “[n]o disposition [of delinquency] shall operate to impose any of the civil disabilities ordinarily imposed by virtue of a criminal conviction.” N.J.S.A. 2A:4A–48.

When two statutes address the same subject, courts should make every effort “to reconcile them, so as to give effect to both expressions of the lawmaker's will.” In re Adoption of a Child by W.P. and M.P., 163 N.J. 158, 182, 748 A.2d 515 (2000) (Poritz, C.J., dissenting) (citations omitted). Here, a broad reading of section 52–4.1(a) would run counter to the principles expressed in the Code of Juvenile Justice and impose a clear disability—a bar to expungement of a crime—because of a juvenile adjudication alone. A narrower reading allows both statutes to be read “together as a unitary and harmonious whole.” In re Petition for Referendum on City of Trenton Ordinance 09–02, 201 N.J. 349, 359, 990 A.2d 1109 (2010).


[Id. at 446–47]

I strongly agree with the Court’s reasoning in this case. It is cruel and serves no purpose to hinder some of adult life as a result of actions they committed as a juvenile. Recent studies have found that the brain is not fully developed until age 25. Seee.g.Mariam Arain, Maliha Haque, Lina Johal, Puja Mathur, Wynand Nel, Afsha Rais, Ranbir Sandhu, and Sushil Sharma, Maturation Of The Adolescent Brain, 9: 449–461 Neuropsychiatr Dis Treat. 2013. Our courts have recognized that the “rehabilitation of juvenile offenders is the goal of the juvenile justice system.” State in Interest of K.O., 217 N.J. 83, 92 (2014). Is consistent with this goal to give juvenile offenders, once they reach maturity, the same opportunity to rehabilitate themselves and to expunge the record as all residents of the state have. 



September 9, 2019

Don’t Forget About Drug Court

By

Craig David Becker

More people are eligible for Drug Court than most people think. Is important that attorneys properly and skillfully utilize the drug court program to its full extent.

Drug Court is a mechanism created by the courts in New Jersey, to give a rehabilitative option to people facing serious penalties as a result of drug dependency. SeeState v. Clarke, 203 N.J. 166, 174–75 (2010) ”Drug Courts are specialized courts within the Superior Court that target drug-involved ‘offenders who are most likely to benefit from treatment and do not pose a risk to public safety.’ ” State v. Garcia, A-3769-17T2, 2019 WL 2560674, at *2 (N.J. Super. Ct. App. Div. June 21, 2019)( quoting State v. Meyer, 192 N.J. 421, 428-29, 930 A.2d 428 (2007)).

There are two options for the defendant to gain admission into Drug Court. There’s a tier 1 option that requires prosecutorial consent and tier 2 option that, although more restrictive, does not require prosecutorial consent. Id. 203 N.J. 166, 174–77 (2010)

Mistakes I’ve seen in cases where individuals and/or attorneys failed to utilize the drug court system fall into two categories. First, failure to understand who is eligible for Drug Court. Drug Court is not limited to only drug cases.

The Legislature subsequently amended the definition of a “drug or alcohol dependent person” in N.J.S.A. 2C:35–2. L. 1999, c. 376, § 1. Following the amendment, a drug or alcohol dependent person is defined as “a person who as a result of using a controlled dangerous substance or controlled substance analog or alcohol has been in a state of psychic or physical dependence, or both, arising from the use of that controlled dangerous substance or controlled substance analog or alcohol on a continuous or repetitive basis.” N.J.S.A. 2C:35–2 (emphasis added). The amendment substituted “has been” for “who is.” L. 1999, c. 376, § 1.

The accompanying statement of the Senate Law and Public Safety Committee explained the change's effect.

The committee amended the bill to clarify that a person who is drug or alcohol dependent at the time of the commission of the offense would be deemed to be a drug or alcohol dependent person at the time of sentencing, even though the person has made progress toward rehabilitation while awaiting disposition of the charges and is no longer actively using a controlled dangerous substance, controlled dangerous substance analog or alcohol. It is the committee's understanding that this amendment is necessary because the disease of drug or alcohol dependence is a chronic, relapsing disorder


[S. Law and Public Safety Comm., Statement to S., No. 1253, 208th Leg.2 (N.J. Jan. 25, 1999) (emphasis added).]

 The statement makes clear that the Committee intended that the definition of a drug dependent person includes an individual who was drug or alcohol dependent at the time of the offense. Thus, even if an offender achieved some level of success in his or her rehabilitation efforts by the time of sentencing, or more pertinent to this matter at the time of seeking admission to the Drug Court program, the offender may still be found drug or alcohol dependent. See Manual, supra, at 16–17.
 

Id. At 180–81 (2010)
 
Many criminal cases are Drug Court eligible. The offense does not need to be related to drugs or alcohol. Instead an attorney needs to show that the defendant’s drug or alcohol dependency contributed to the actions and issues that caused the person to commit the crime. It’s been my experience that a high number and potentially most people who commit crimes are drug and/or alcohol dependent. This drastically increases the number of people who may be eligible for Drug Court. It is important that an attorney closely investigates if their client may be eligible for Drug Court.

Judges and Prosecutors are required to consider the Defendant’s entire history when deciding on eligibility for Drug Court. SeeClarke, 203 N.J. at 183 (Although a Drug Court judge is not bound by a substance abuse evaluator's recommendation for in-patient drug treatment, the evaluation is a critical component of a decision to grant or deny admission into the Drug Court program.); State v. Dawson, A-5998-09T1, 2011 WL 2981936, at *4 (N.J. Super. Ct. App. Div. July 25, 2011)(“Given that defendant presented proofs to support his assertion that the prosecutor did not consider his complete individual history, we affirm the trial court's determination of a gross and patent abuse of discretion.”) Attorneys should consider obtaining private evaluations that can explain the Defendant’s drug related issues.

It has been my experience that most court order substance abuse evaluations narrowly focus on certain factors related to drug use. They often give little information as to how the drug use caused the Defendant to commit the crime. Many substance abuse evaluations failed to explain how the Defendant will benefit from the Drug Court program. A Defendant’s ability to benefit from the Drug Court program is a substantial factor that a court uses in determining the Defendant’s eligibility. See Clarke, 203 N.J. at 183  A prosecutor must consider this as well. SeeDawson, 2011 WL at *4  It can make a significant difference in the case if you have a strong expert opinion that explains how the Defendant will benefit from rehabilitation. The expert opinion should set forth realistic and practical opinions as to why the expert believes that the Defendant, after receiving treatment, is not likely to reengage in criminal conduct. Showing a court and/or Prosecutor a Defendant’s complete history and providing strong evidence of the Defendant’s ability to benefit from treatment can make a substantial difference when assisting the client in the Drug Court application process.

In many cases acceptance into Drug Court could be a significant factor in someone avoiding a state prison sentence. In addition, for many defendants Drug Court is the only place, in part because they have no other choice, where they will get the treatment and other help they need. It is important that attorneys fully utilize the Drug Court options, so all people eligible are able to take part in this program.