26:2B-17. Violators of municipal ordinance or disorderly persons not arrested for misdemeanor; taking to facility; determination of alcoholism; commitment; request; stay of criminal proceeding; hearing; treatment; discharge; report to court; sentence; credits
Any person who is arrested for a violation of a municipal ordinance, or for a disorderly persons offense, and who is not also arrested for a misdemeanor, and who the arresting police officer has reasonable cause to believe is intoxicated, may be taken by a police officer directly to an intoxication treatment center or other appropriate facility. To determine whether or not such person is intoxicated, the police officer may request the person to submit to any reasonable test, including, but not limited to, tests of his coordination, coherency of speech, and breath.
The administrator of any intoxication treatment center, or of any other facility, shall cause any such person to be examined by a physician or by a medically competent individual designated by the department and under the supervision of a physician. If the physician or any other medically competent individual designated by the department determines upon examination that such person is intoxicated, and the administrator determines that adequate and appropriate treatment is available, the person shall be admitted. Any such person may be detained at the center or other facility until he is no longer intoxicated, but in any event, not longer than 48 hours from the date of admission. At such time as the person is to be discharged from the facility, be shall be informed by the administrator that if he is an alcoholic who would benefit by treatment he may, in the discretion of the court, be afforded treatment in lieu of prosecution, and that if he so chooses he may be examined at the facility for the purpose of determining whether he is an alcoholic who would benefit by treatment. If the person requests an examination, he shall be examined by a physician at the facility during a period of time not to exceed 48 hours. The police shall maintain such security conditions as may be necessary. Prior to releasing the person from the center or other facility, the administrator shall notify the police who shall transport him therefrom for proceedings in the case.
When a person who is arrested for a violation of a municipal ordinance, or disorderly persons offense, and who is not also arrested for a misdemeanor, is brought before the court on such charge, the court shall inform him that he is entitled to request a medical examination to determine whether or not he is an alcoholic if he has been admitted to a facility pursuant to the provisions of the preceding paragraph and has not received a medical examination by a physician. The court shall further inform the defendant of the consequences which follow a determination by a physician that he is an alcoholic who would benefit by treatment. Any request for an examination shall be in writing. If the person makes such request, the proceedings shall be stayed for the period during which the request is under consideration by the court. If the defendant requests an examination, the court shall appoint a physician to conduct the examination at an appropriate location designated by it.
In no event shall a request for an examination, any statement made by the defendant during the course of an examination or any finding of a physician pursuant to the provisions of this section be admissible against the defendant in any proceeding.
A physician who conducts an examination pursuant to the provisions of this section, shall determine whether or not the defendant is an alcoholic who would benefit by treatment. The physician shall report his findings to the court together with the facts upon which the findings are based and the reasons therefor as soon as possible but in any event not longer than 3 days after the completion of the examination.
If the physician reports that the defendant is an alcoholic who would benefit by treatment, the court shall inform the defendant that he may request commitment to the division and advise him of the consequences of the commitment.
If the defendant requests commitment, and if the court finds that the defendant is an alcoholic who would benefit by treatment, the court may stay the criminal proceeding and commit the defendant to the division as an inpatient or as an outpatient, whichever the court deems appropriate, for a specified period. The term of inpatient treatment shall not exceed 30 days, the term of outpatient treatment shall not exceed 60 days, and the total combined period of commitment, including both inpatient and outpatient treatment, if both are ordered, shall not exceed 90 days. The court shall inform the defendant that if he is committed the proceeding will be stayed for the term of the commitment.
In determining whether or not to grant the request for commitment, the court shall consider the report of the physician, the nature of the offense with which the defendant is charged, the past criminal record, if any, of the defendant, and any other relevant evidence.
If the court decides that the defendant's request for commitment should be granted, the court shall commit the defendant to the division if the division reports that adequate and appropriate treatment is available at a facility; provided, however, that if the court determines that commitment should be granted and the defendant is charged with a first offense, the proceedings shall be stayed until adequate and appropriate treatment is available at a facility. In cases where the defendant is not charged with a first offense and the division reports that adequate and appropriate treatment is not available, the court may, in its discretion, order that the stay of the proceeding remain outstanding until such time as adequate and appropriate treatment is available.
As a condition to the issuance of any commitment order by the court pursuant to the provisions of this section, the defendant shall consent in writing to the terms of the commitment.
If the physician reports that the defendant is not an alcoholic who would benefit by treatment, the defendant shall be entitled to request a hearing to determine whether he is an alcoholic who would benefit by treatment. Thereupon the court may, of its own motion, or shall upon the request of the defendant or his counsel, appoint an independent physician to examine the defendant and to testify at the hearing. If the court determines that the defendant is an alcoholic who would benefit by treatment, the procedures and standards applicable to a defendant who is determined by the court, following the report of the first examining physician to be an alcoholic who would benefit by treatment, shall apply to the defendant.
If the court does not order that the defendant shall be afforded treatment in lieu of prosecution pursuant to the provisions of this section, the stay of the proceedings shall be vacated.
At any time during the term of commitment, the administrator may transfer any inpatient to an outpatient program if he finds that the patient is a proper subject for outpatient treatment; provided, however, that the administrator may retransfer the patient to an inpatient program if he finds that the person is not suitable for outpatient treatment.
Any patient committed to the division pursuant to this section shall be discharged from the facility to which the division has caused him to be admitted if at any time the administrator determines that treatment will no longer benefit him; provided, however, that such patient shall in any event be discharged at the termination of the period of commitment specified in the court order.
At the end of the commitment period, when the patient is discharged, or when the patient terminates treatment at the facility, whichever first occurs, the director shall report to the court on whether or not the defendant successfully completed the treatment program, together with a statement of the reasons for his conclusion. In reaching his determination of whether or not the defendant successfully completed the treatment program, the director shall consider, but shall not be limited to, whether the defendant cooperated with the administrator and complied with the terms and conditions imposed on him during his commitment. If the report states that the defendant successfully completed the treatment program, the court shall dismiss the charges pending against the defendant. If the report does not so state, or if the defendant has not completed the term of commitment ordered by the court, then, based on the report and any other relevant evidence, the court may take such action as it deems appropriate, including the dismissal of the charges or the revocation of the stay of the proceedings. In the event that the court convicts a defendant who has been committed in lieu of prosecution pursuant to the provisions of this section and sentences him to a term of incarceration, the court shall reduce the term of incarceration by the period during which the defendant was afforded treatment in lieu of prosecution pursuant to this section.
The State, municipal and local police shall, in cooperation with the department, provide temporary security at facilities to which persons are taken pursuant to this section, where it is necessary that such security be provided for the person arrested.
