Resisting Arrest Charged May Be Managed With PTI
- July 6, 2015
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K.S. was charged with driving under the influence (DUI) (N.J.S.A. 39:4-50), refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.2), third-degree aggravated assault on a law enforcement officer (N.J.S.A. 2C:12-1(b)(5)(a)), third-degree resisting arrest (N.J. S.A. 2C:29-2(a)(3)(a)), fourth-degree throwing bodily fluids at a police officer (N.J.S.A. 2C:12-13) and fourth-degree criminal mischief (N.J.S.A. 2C:17-3(a)(1)). As K.S. was being transported to the Watchung Borough police station under suspicion of driving while intoxicated (DWI), he attempted to spit blood onto an arresting officer. K.S. had a juvenile criminal history including assault, possession of a weapon, fighting and harassment as well as an adult charge for violent behavior which had been dismissed and, based upon this prior record, was denied entry into Pretrial Intervention (PTI) by the Somerset County Prosecutor. Prosecutors are afforded broad discretion in the determination of whether a defendant should be admitted into PTI and, barring patent abuse of discretion, the prosecutor’s decision is normally upheld. State v. Dalglish, 86 N.J. 503 (1981). The Somerset County Superior Court agreed with the prosecutor’s decision to deny defendant’s entry into PTI and the NJ Appellate Division affirmed on appeal. K.S. appealed to the N.J. Supreme Court and the matter was reversed and remanded based on the guidelines of N.J.C.R. 3:28 and N.J.S.A. 2C:43-12 which codified the PTI Program in New Jersey. Under N.J.S.A. 2C:43-12(e), established following the decision in State v. Leonardis, 71 N.J. 85 (1976), the prosecutor and criminal division manager are to consider 17 separate factors. Under State v. Wallace, 146 N.J. 576, 585-586 (1996), no particular weight is to be given to any particular factor. In addition to the factors set forth is any mental illness from which the defendant suffers. State v. Hoffman, 399 N.J. Super. 207 (App. Div. 2008). K.S. suffers from bi-polar issues, which the prosecutor claimed to have considered in denying the defendant’s entry into PTI. According to the N.J. Supreme Court, in State v. K.S., the prosecutor inappropriately considered the defendant’s criminal history as violent offenses which do typically give rise to denial of Pretrial Intervention. State v. Baynes, 148 N.J. 434 (1997). Under State v. Brooks, 175 N.J. 215 (2002), it was held that the prosecutor could consider previously dismissed or diverted charges if the prior resolutions should have deterred the defendant from committing further offenses. However, the N.J. Supreme Court held that Brooks was applicable to the court’s consideration, not that of the prosecutor. The N.J. Supreme Court also held that, in order to consider prior dismissed charges, they needed to be supported by undisputed facts established within a hearing or by the defendant’s admission. State v. Green, 413 N.J. Super. 556 (App. Div. 2010), established the requirement that the criminal division manager and prosecutor consider a defendant’s application on the merits. The N.J. Supreme Court held that, due to the prosecutor’s consideration of prior dismissed charges, the denial of defendant’s application was inappropriate and remanded the matter for a hearing to establish whether the defendant’s prior criminal history did give rise to proper denial of entry into the PTI program. Resisting arrest is a common charge as it is a highly discretionary decision of police officers effecting an arrest. Arrest is a humiliating experience and difficult to comprehend by those who do not believe they are breaking the law, or that their “crimes” give rise to the need for handcuffs and the other consequences of arrest. If you are facing charges of resisting arrest, you should immediately seek experienced criminal defense counsel to protect your rights. For more information about resisting arrest, assault, assault on an officer or other criminal charges, as well as DUI and other traffic related charges, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.