February 5, 2015

NJ Senate approves change to DWI Law and require interlock machine on car but permit DWI defendants to drive after having the machine installed.

      NJ Senate approves change to DWI Law and require interlock machine on car but permit DWI defendants to drive after having the machine installed.

     NJ Senate on February 5 voted 29-4 to change the DWI Law to require a car interlock device

   SENATE Bill No. 385 is now being submitted to the Governor for signature. The Assembly approved the bill in June, 2014.

This bill revises the penalty provisions for various drunk driving offenses, particularly making changes concerning the use of, and applicable time periods covering, driver’s license suspensions and installations of ignition interlock devices on motor vehicles owned or operated by these drivers.
      Drunk Driving
      Concerning the offense of driving under the influence of alcohol or drugs (R.S.39:50-4), the bill revises the relevant penalty provisions as follows:
      For a first offense, if that offense involved a person’s blood alcohol concentration of 0.08% or higher but less than 0.10%, or otherwise operating a motor vehicle while under the influence of intoxicating liquor, the court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for three months, unless the court was clearly convinced, based on a series of aggravating factors outweighing mitigating ones as set forth in the bill, to instead order a license suspension of three months (the three month suspension would also apply instead of device installation if the person did not own or lease a motor vehicle and there was no motor vehicle the person principally operated).  Under current law, the license suspension is mandatory and motorists have no way to get to work or school.
An ignition interlock device or breath alcohol ignition interlock device (IID and BAIID) is a mechanism, like a breathalyzer, installed on a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration (which varies between countries), the device prevents the engine from being started. The NJ ignition interlock device to prevent a vehicle from starting if the BAC exceeds 0.05%.

      The aggravating and mitigating factors for consideration by the court to order a license suspension instead of device installation would include, but not be limited to: the nature and circumstances of the person’s conduct, including whether such conduct posed a high risk of danger to the public; the person’s driving record; whether the character and attitude of the person indicate that the person would be likely or unlikely to commit another violation; and the need for personal or general deterrence.
     Under the proposed law, if the court did order the installation of the ignition interlock device, the person’s driver’s license would only be reinstated within the 10-day suspension/device installation period by the New Jersey Motor Vehicle Commission upon showing proof of such installation, and the commission would imprint a notation concerning driving with the device on the person’s driver’s license.
      Additionally, for a person with an ignition interlock device installed, the three-month installation period would be subject to possible extension for an additional period equal to one-third of the originally designated period, for attempting to operate the affected motor vehicle with a blood alcohol concentration of 0.08% or higher during the last one-third of the installation period, or for failing to present the affected vehicle for device servicing at any time during the installation period.  This extension would occur without need of further court order, following notification of the event to the court by the Chief Administrator of the Motor Vehicle Commission, which notification would be supported by a certification from the ignition interlock device manufacturer, installer, or other party set forth in regulation responsible for the servicing or monitoring of the device.
      If the first offense involved a person’s blood alcohol concentration of 0.10% or higher but less than 0.15%, the court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for not less than seven months or more than one year, unless the court was clearly convinced, based on the series of aggravating factors outweighing the mitigating ones as described above, to instead order a license suspension of not less than seven months or more than one year (the seven month to one year suspension would also apply instead of device installation if the person did not own or lease a motor vehicle and there was no motor vehicle the person principally operated). Ubnder the current law, an ignition interlock device is already required. f the person was ordered to install an ignition interlock device, the person could only reinstate the person’s driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described.
      If the first offense involved a person’s blood alcohol concentration of 0.15% or higher, the court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, and maintain installation of the device during a period of license suspension of not less than seven months or more than one year and after license suspension for an additional period of not less than seven months or more than one year, unless there was no such vehicle, in which case the person would receive an initial period of suspension plus an additional period of suspension equal to the total period the person would have had an ignition interlock device installed.
      With respect to the license suspension of a person with a blood alcohol concentration of 0.15% or higher, the person would have the opportunity, beginning 90 days after the start of the suspension, to petition the court to reinstate the person’s driving privileges for the duration of the initially ordered suspension period, subject to the person maintaining the installation of the ignition interlock device in the person’s motor vehicle both for the remainder of the initially ordered suspension period and afterward for the additional seven-month to one-year period.  Additionally, a person whose driving privileges were suspended for an additional period because the person does not own or lease a motor vehicle and there is no motor vehicle the person principally operates, may petition the court that established the forfeiture period, upon proof of owning, leasing, or principally operating a motor vehicle, to reinstate the person’s driving privileges for the duration of the initial and additional suspension period, subject to the person maintaining the installation of an ignition interlock device in that vehicle.  As above, a person ordered to install an ignition interlock device could only reinstate a driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described. 
      If the offense involved a “drugged” driver (i.e., operating a motor vehicle under the influence of a narcotic, hallucinogenic, or habit-producing drug), the court would order a license suspension of not less than seven months or more than one year, with no option to instead operate a motor vehicle with an ignition interlock device installed.
      For any such first offense of drunk or “drugged” driving occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other first offenses.
      For a second offense, the bill increases, for all drunk and “drugged” drivers, the period of license suspension from the current law’s two years to instead a period of not less than two years or more than four years.  The court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the two to four year suspension period, and to remain installed afterward for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive an initial period of suspension plus an additional period of suspension equal to the total period the person would have had an ignition interlock device installed.
      With respect to a second offender’s license suspension, a person who does not own or lease a motor vehicle or have a motor vehicle the person operates may petition the court that established the forfeiture period, upon proof of owning, leasing, or operating a motor vehicle, to reinstate the person’s driving privileges for the duration of the additional one to three year suspension period (not the initial two to four year period), subject to the person maintaining the installation of an ignition interlock device in that vehicle. 
      As above for any first offender, a person who is a second offender ordered to install an ignition interlock device could only reinstate a driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described for a first offender.     
      For a second offense occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other second offenses.
      For a third or subsequent offense, the bill increases, for all drunk and “drugged” drivers, the period of license suspension from the current law’s 10 years to instead a period of not less than 10 years or more than 20 years.  The court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the 10 to 20 year suspension period, and to remain installed afterwards for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive an initial period of suspension plus an additional period of suspension equal to the total period the person would have had an ignition interlock device installed.
      With respect to a third or subsequent offender’s license suspension, a person who does not own or lease a motor vehicle or have a motor vehicle the person operates may petition the court that established the forfeiture period, upon proof of owning, leasing, or operating a motor vehicle, to reinstate the person’s driving privileges for the duration of the additional one to three year suspension period (not the initial 10 to 20 year period), subject to the person maintaining the installation of an ignition interlock device in that vehicle. 
      As above for both first and second offenders, a person who is a third or subsequent offender ordered to install an ignition interlock device could only reinstate a driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described for first and second offenders.
      For a third or subsequent offense occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other third or subsequent offenses.
      Refusing a Breath Test
      Concerning the offense of refusing to submit to a breath test (section 2 of P.L.1981, c.512 (C.39:4-50.4a)), the bill revises the relevant penalty provisions as follows:
      For a first offense, the court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for not less than seven months or more than one year, unless the court was clearly convinced, based on the series of aggravating factors outweighing the mitigating ones as described above for drunk driving offenses, to instead order a license suspension of not less than seven months or more than one year (the seven month to one year suspension would also apply instead of device installation if the person did not own or lease a motor vehicle and there was no motor vehicle the person principally operated). As above with respect to drunk driving offenses, if the person was ordered to install an ignition interlock device, the person could only reinstate the person’s driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described.
      For any first offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other first offenses.
      For a second offense, the bill increases the period of license suspension from the current two years to instead a period of not less than two years or more than four years.  The court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the two to four year suspension period and remain installed afterward for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive an initial period of suspension plus an additional period of suspension equal to the total period the person would have had an ignition interlock device installed.  
      A person who does not own or lease a motor vehicle or have a motor vehicle the person operates may petition the court that established the forfeiture period, upon proof of owning, leasing, or operating a motor vehicle, to reinstate the person’s driving privileges for the duration of the additional one to three year suspension period (not the initial two to four year period), subject to the person maintaining the installation of an ignition interlock device in that vehicle.  
      As above with respect to any drunk driving offense, a person who is a second offender ordered to install an ignition interlock device could only reinstate a driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described for a drunk driving offense.     
      For a second offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other second offenses.
      For a third or subsequent offense, the bill increases the period of license suspension from the current 10 years to instead a period of not less than 10 years or more than 20 years.  The court would order a 10-day license suspension, during which the person would have to install an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the 10 to 20 year suspension period, and to remain installed afterwards for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive an initial period of suspension plus an additional period of suspension equal to the total period the person would have had an ignition interlock device installed.
      A third or subsequent offender who does not own or lease a motor vehicle or have a motor vehicle the person operates may petition the court that established the forfeiture period, upon proof of owning, leasing, or operating a motor vehicle, to reinstate the person’s driving privileges for the duration of the additional one to three year suspension period (not the initial 10 to 20 year period), subject to the person maintaining the installation of an ignition interlock device in that vehicle.  
      As above with respect to any drunk driving offense, a person who is a third or subsequent offender ordered to install an ignition interlock device could only reinstate a driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended by an additional period equal to one-third of the originally designated period in the same manner as previously described for a drunk driving offense.
      For a third or subsequent offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other third or subsequent offenses.
      Ignition Interlock Device Installation – License Reinstatement
      With respect to all cases for which a person has been ordered to install one or more ignition interlock devices, the court would notify the Chief Administrator of the Motor Vehicle Commission.  The commission would thereafter require that the one or more devices be installed before the reinstatement of the person’s driver’s license, whether after a 10-day suspension period or some longer period as applicable to the specific offense.  The commission would imprint a notation on the reinstated driver’s license stating that the person could not operate a motor vehicle unless it is equipped with an ignition interlock device, and would enter this requirement in the person's driving record.
      Ignition Interlock Device – Failure to Install, Tampering
      Lastly, a person who fails to install an ignition interlock device as ordered by a court, or who drives a device-equipped vehicle after being started by means other than the person blowing into the device, or who drives an unequipped vehicle, would be guilty of a disorderly persons offense.  A disorderly persons offense is ordinarily punishable by a term of imprisonment of up to six months, a fine of up to $1,000, or both.  Furthermore, the court would suspend the person’s driver’s license for the period of time associated with a drunk driving offense under R.S.39:4-50, except that the applicable period applied by the court would be the period for a second offense (not less than two years or more than four years) if the underlying act was committed by a first offender drunk driver/breath test refusal, and would be the period for a third or subsequent offense (not less than 10 years or more than 20 years) if the underlying act was committed by a second offender drunk driver/breath test refusal; the suspension period for a third or subsequent offender drunk driver/breath test refusal would not be enhanced (remaining not less than 10 years or more than 20 years).

Other proposed changes:      - provide, for all of the relevant drunk driving and breath test refusal offenses described above, a 10-day license suspension period, during which an offender would have to install an ignition interlock device in the one or more motor vehicles required by the bill’s provisions;
      - clarify the device installation requirements for repeat offenders, so that an ignition interlock device would have to be installed in all motor vehicles operated by such offenders (along with all vehicles owned or leased), not just those vehicles “principally” operated by such offenders;
      - add provisions to further explain the available penalties for offenders who are required to install ignition interlock devices versus those offenders who face license suspension because they do not have a motor vehicle in which a device would be installed, as detailed above; 
      - update the existing law concerning the procedure to be followed by drunk driving and breath test refusal offenders who are seeking the reinstatement of their driver’s licenses through the Motor Vehicle Commission;
      - update provisions of the relevant drunk driving statute, R.S.39:4-50, to account for the enactment of P.L.2014, c.54 on September 10, 2014, providing a $25 increase to the surcharge assessed against drunk driving violators ($100 to $125) in order to, in part, help fund the installation of mobile video recording systems on municipal police vehicles as required by that act;
      - reinsert provisions concerning the currently operating supervised visitation program for convicted offenders, providing visits to hospitals which receive drunk driving victims, facilities caring for advanced alcoholics or drug abusers, and public morgues or county medical examiner offices holding deceased victims; the provisions were inadvertently marked for deletion by the underlying bill (see R.S.39:4-50, subsection (h)); and
      - reinsert the penalty provisions for offenders who fail to install ignition interlock devices, tamper with devices, or operate unequipped vehicles, as detailed above, which were included in the bill as introduced but inadvertently left out of the underlying bill. 

FISCAL IMPACT:
      The Office of Legislative Services expects the State to incur certain additional but indeterminable costs as a result of this bill.  These costs are related to the possible redesign and associated processing of a license that is capable of accommodating a notation on a reinstated driver’s license that indicates a person is not authorized to operate a motor vehicle unless it is equipped with an ignition interlock device.  The costs are also related to the court time that may be necessary to process these cases and to adjudicate additional cases that may arise from the failure to install or maintain, or from tampering with, ignition interlock devices that have been ordered to be installed by the court.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax)    732-572-0030

website: www.njlaws.com

Probation Services Division Adult Violation of Probation Guidelines and Procedures

Probation Services Division
Adult Violation of Probation
Guidelines and Procedures
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
PHILIP S. CARCHMAN, P.J.A.D. RICHARD J. HUGHES JUSTICE COMPLEX
ACTING ADMINISTRATIVE DIRECTOR OF THE COURTS P.O. Box 037
TRENTON, NEW JERSEY 08625-0037
TO: Assignment Judges
Trial Court Administrators
FROM: Philip S. Carchman, P.J.A.D.
SUBJECT: Probation – Adult Violation of Probation (VOP) Guidelines and
Procedures
DATE: April 7, 2008
This Directive promulgates for immediate use revised Adult Violation of
Probation Guidelines and Procedures, as approved by Judicial Council on
February 27, 2008. These revised guidelines and procedures, which supersede
the 1999 Violation of Probation and Revocation Process policy, were
necessitated by a number of statutory and policy changes as detailed below.
These revised VOP Guidelines and Procedures contain the following
significant changes from the 1999 policy:
1. Addition of language describing the circumstances under which a
VOP should be filed when a probationer has been charged with a
3rd or 4th degree crime (page 4, Guideline #1B);
2. Clarification regarding the response to a positive drug test,
specifically, to indicate that there must be a response, while at the
same time recognizing that there must be flexibility to account for
the probationer’s particular circumstances (page 8, Condition #8);
3. Clarification that failure to surrender either a permit to purchase a
handgun or a firearms purchaser identification card constitutes a
violation of probation (page 9, Condition #11);
4. New guidelines for refusal to submit to DNA testing, a statutory
condition of probation that was not in effect at the time the 1999
VOP policy was adopted (page 10, Condition #13);
5. Addition of language to address the Supreme Court’s determination
in State v. Nellom, 178 N.J. 192 (2003) of what constitutes

commencement of a VOP for purposes of tolling a probation term
(pages 13, Procedure #7);
6. Stating clearly that it is the prosecutor’s obligation to prosecute
VOP matters, as described in Directive #04-06, and that
appropriate notifications now include a new standard memorandum
to the prosecutor (pages 13, Procedure #7);
7. Addition of procedure and form to reflect that probationers are
subject to the Interstate Compact for Adult Offender Supervision
(page 15-16, Procedure #15);
8. Addition of language regarding “prior service credit” added to the
jail credit guidelines (page 18);
9. Addition of guidelines, along with a form, regarding the
probationer’s obligation to inform the court about the need for
alternative care for any dependents if the probationer is to be
incarcerated (page 20).
The revised Adult Violation of Probation Guidelines and Procedures will be
posted on the Infonet and will be incorporated into the Probation Supervision
Manual as Section 5300. The forms appended to the guidelines also will be
available through the Judiciary InfoNet’s Forms ClearingHouse and Repository.
Questions regarding this Directive and the underlying policy may be
directed to Robert Sebastian, Assistant Director, Probation Services Division, at
609-292-1589.
P.S.C.
Encl.
http://www.judiciary.state.nj.us/directive/2008/dir_7_08a.pdfDIRECTIVE # 7- 08
[Questions or comments may be
addressed to (609) 292-1589]
Directive #7-08
April 7, 2008
Page 2 of 2

New Jersey Judiciary
Probation Services Division
Adult Violation of Probation
Guidelines and Procedures
Directive # 7-08
(Issued April 7, 2008)
As Approved by the Judicial Council
Table of Contents
I. Introduction......................................................................................................... 1
II. Guidelines for Filing Violations of Standard and Special Conditions
of Adult Probation .............................................................................................. 3
III. Procedures for Filing Adult Violations of Probation ..................................... 11
IV. Guidelines for the Authorization to Arrest and Detain a Probationer
for a Violation of Probation.............................................................................. 17
V. Jail Credit Guidelines....................................................................................... 18
VI. Guidelines on Providing Information to the Court on Alternatecare
Needs................................................................................................................. 20
FORMS:
Violation of Probation – Statement of Charges (CN 10076)
Violation of Probation – Sample Charging Language (CN 10076)
Violation of Probation – Summary (CN 10077)
Violation of Probation – Addendum (CN 10214)
Violation of Probation – Hearing Summons (CN 10075)
Memorandum to the Prosecutor (CN 11201)
Authorization to Arrest and Detain (CN 11200)
Alternate Care Addendum (CN 11203)
ICAOS Offender Violation Report (CN 11206)
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section I. Introduction
1
I. INTRODUCTION
Purpose
Supervision strategies should be consistent with the purposes of the New Jersey
Statue as articulated in N.J.S.A. 2C:45-1 (a), which states:
When the court suspends the imposition of sentence on a person
who has been convicted of an offense or sentences him to be placed
on probation, it shall attach such reasonable conditions, authorized
by this section, as it deems necessary to insure that he will lead a
law-abiding life or is likely to assist him to do so. These conditions
may be set forth in a set of standardized conditions promulgated by
the county probation department and approved by the court.
The following guidelines and procedures for filing violations of probation (VOPs)
reflect current practices and supersede the prior standards approved by Judicial
Council on September 30, 1999. These guidelines and procedures standardize
adult supervision practices and ensure that conditions of probation are enforced
fairly and consistently throughout the state. Ensuring compliance with the court
order is the core function of Probation, and the activities of Probation –
monitoring, enforcing and intervening – are designed to meet that mandate.
Progressive Sanction Strategy
Probation officers utilize various intervention strategies to deal effectively with
probationer non-compliance. Intervention strategies should be progressive,
beginning with the least restrictive measure deemed appropriate, followed by
more consequential measures if non-compliance continues. In determining the
appropriate intervention sanction, an objective appraisal must be made of each
probationer’s background, risk, and needs, the circumstances of the noncompliant
behavior and the probationer’s adjustment while on probation.
Filing a VOP Upon Continued Non-Compliance
If the probationer fails to comply with the terms of the sentence or the standard or
special conditions of probation despite the probation officer’s efforts to secure
compliance through progressive intervention strategies, the matter must be
placed before the court for judicial determination. A violation of probation (VOP)
is the vehicle by which the probation officer brings the probationer before the
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section I. Introduction
2
court for non-compliance. The commencement of a VOP puts both the court and
the probationer on notice that the probationer is on track for revocation.
In the VOP Statement of Charges and the VOP Summary the probation officer
documents the probationer’s response to supervision, describing the
probationer’s overall adjustment, documenting those conditions which the
probationer is alleged to have violated and new arrests if they have occurred.
Prosecutors are responsible for the prosecution of defendants charged with
violating terms of their probation. The probation officer serves as a witness
presenting documentation of the violation(s), describing efforts made to assist the
probationer in complying with the terms and conditions of probation, and making
recommendations regarding revocation and resentence.
To ensure a consistent approach throughout the state toward non-complaint
behavior, the guidelines and procedures outlined here must be followed except
for exceptional circumstances. The probation supervisor must be consulted
regarding all non-compliant probationer behavior. Any deviation from policy in
not bringing VOP charges will require an approval by the supervisor, documented
by a chronological entry describing the reasons for the exception. Timeliness of
response is an essential element of good probation practice. The time frame of
non-compliant behavior is to be included in the decision making process for the
probation officer and supervisor.
Timeliness Essential
All probationer non-compliant behavior should be addressed, investigated and
resolved no later than thirty days after detection. Non-compliance of a severe
nature should be acted upon no later than ten working days after detection.
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
3
II. GUIDELINES FOR FILING VIOLATIONS OF STANDARD AND SPECIAL
CONDITIONS OF ADULT PROBATION
The goal of probation supervision is to selectively and actively intervene with
probationers so as to reduce the likelihood of future criminal activity and promote
compliance with the supervision strategy. This policy is designed to provide
timely, consistent and equitable responses to probationer non-compliance with
the court’s order. It establishes uniform statewide guidelines and procedures to
file violations of probation (VOP). It is not, however, intended to limit the
discretion of the probation officer to file a violation of probation at any time in the
supervision process.
The statement in bold at the beginning of each numbered paragraph below
sets forth one of the Standard Conditions of Adult Probation approved by
the Supreme Court. The statement is followed by factors to be considered
in responding to a violation of each condition.
1. “You shall obey all federal, state and municipal laws and ordinances. You
shall notify your probation officer if you are arrested or issued a summons
in any jurisdiction.”
A new arrest may constitute or may reveal conduct that constitutes a violation of
probation (VOP). Pursuant to State v. Wilkins 230 N.J. Super. 261 (App.
Div.1989), a person can be found to have violated probation by engaging in a
new offense before, or even in the absence of, a conviction for the new crime.
For this to occur, it would be necessary for the probation officer to demonstrate at
the VOP hearing that there is evidence of criminal conduct by the probationer.
When a probation officer becomes aware that a probationer has been arrested or
that a summons has been issued to the probationer, the officer must take action
with the supervisor’s approval. The response should be timely and proportionate
to the severity of the violation and to the probationer’s risk to the community.
Consideration should also be given to the probationer’s responsiveness to
supervision.
A. Arrest for violent crime or other first or second degree crime in New Jersey
or equivalent charge from another state:
The probation officer must prepare and file a VOP (see Section III.
Procedures for Filing Adult Violations of Probation) as soon as possible,
but in any event no later than five working days after the officer is advised
of a first or second degree crime in New Jersey or equivalent charge from
another state. Documentation of the new charge should be attached to
the VOP.
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
4
B. Arrest for a third or fourth degree crime:
In most cases, the probation officer should prepare and file a VOP if a
probationer is arrested for a third or fourth degree crime. There may,
however, be exceptions to this general rule. If, for example, the
probationer has progressed well and the arrest is for an unrelated offense,
the need to file a VOP is less than if the crime constitutes a repetition of
the original offense. If the new arrest appears to be related to the
offender’s drug addiction, a VOP may be filed and the probation officer
may include in the “Recommendations” section of the VOP Summary
(Form: CN 10077) a recommendation that the court consider resentencing
the probationer to Drug Court.
If the probationer is complying with his/her case plan, it may be
appropriate to allow the new offense to be remedied through the new
criminal proceeding rather than through further efforts by probation based
on the original offense. Thus, the probation officer must consider the
nature and circumstances of the new offense in the context of the
probationer's case plan and its impact on the possibility of the
probationer's rehabilitation. Any instructions that a judge has given with
respect to violations of probation when imposing sentence in a particular
case must, of course, be taken into account.
The probation officer must always file a VOP when the probationer is
arrested for a third or fourth degree crime within 90 days prior to the
expiration of the term of supervision. Filing the VOP tolls the probation
term, and ensures that appropriate action can be taken before the
probation term expires.
C. Arrest for disorderly persons (DP) offense, petty disorderly persons
offense, a motor vehicle violation or municipal ordinance violation:
The probation officer may prepare and file a VOP if a probationer is
arrested for a DP offense, petty disorderly persons offense, a motor
vehicle violation or municipal ordinance violation, depending on the
circumstances. The probation officer must consider the nature of the
violation, especially DWI or driving without a license or insurance, as well
as the probationer’s history and responsiveness to supervision. The
probation officer should not send a notice of the new arrest of a
probationer on a DP or lesser offense as a routine practice. However, the
new arrest reports may be submitted to the court depending on the
instructions of the sentencing judge in the specific case. The probation
officer should consult with the supervisor before filing a VOP.
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
5
D. If a determination is made to file a VOP because of a new arrest, the
probation officer shall request the Superior Court to issue a warrant or a
summons to appear before prior to the expiration of the term of
supervision. All VOPs require that a probationer be provided with notice
by the issuance of a summons or warrant or an arrest in order to suspend
or “toll” the term of probation until disposition of the VOP (see Section III.
Procedures for Filing Adult Violations of Probations, #7 - Filing of the VOP
for a discussion of tolling.). A warrant can be issued on a VOP when a
probationer has been arrested for and charged with a new offense, but
has not yet been convicted. If after consultation with the supervisor, it is
determined to be necessary to place the probationer in custody prior to the
VOP hearing, the judge may issue a bench warrant or the Chief Probation
Officer may sign an Authorization to Arrest and Detain. (see Section IV.
below, Guidelines for the Authorization to Arrest and Detain.)
E. The probation officer must prepare and file a VOP Statement of Charges,
(Form: CN 10076) within 24 hours on persons who are placed in custody
as the result of a bench warrant or an Authorization to Arrest and Detain
(Form: CN 11200). When a bail investigation is conducted on the new
charge, the probation officer will provide information regarding the VOP to
the Criminal Division upon request. The court will determine if it wishes to
proceed with the VOP or await adjudication of the new charge.
2. “You shall report to your probation officer as directed.”
The probation officer shall prepare and file a VOP when, without good and
sufficient reason, a probationer misses three consecutive reports or establishes a
pattern of failure to report for more than 60 days. The probation officer must
consider the totality of the compliance and consult with the supervisor to assess
the reasons for the failure to report before filing the VOP.
Probationers are required to report to their probation officer based upon contact
standards as defined in the Probation Supervision Manual. (Section 2100, Intake
D 20, and Section 2400, Case Supervision G.4) Failure to report has been
upheld in case law as a violation of probation.
The probation officer should make progressive and diligent efforts to establish
contact with the probationer whenever possible in order to bring the probationer
into compliance. The probation officer should make a home contact as defined in
Directive #14-06, Probation Field Supervision and Safety Standards, send a
letter, and phone a responsible person for information before resorting to a VOP.
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
6
3. “You shall answer truthfully all inquiries made by your probation officer.”
The probation officer may prepare and file a VOP when the probation officer
discovers that the probationer is not being truthful. This condition underlies good
probationer performance. The probation officer must consider the context in
which the failure to answer truthfully was discovered. The probation officer must
adequately describe in the case file by chronological entries the behavior and all
salient aspects of managing the behavior and be prepared to present that
information to the court.
Failing to tell the truth may constitute relatively minor non-compliant behavior
which is atypical or incidental. This violation is most often incorporated with other
violation charges and is usually considered in that context. Failing to tell the truth
may rise to the level of a VOP when failure to answer truthfully is used to conceal
other violations of the conditions of probation.
4. “You shall permit your probation officer to visit your residence or any other
suitable place.”
The probation officer shall prepare and file a VOP if the probationer is present
and directly denies the probation officer access to his/her own residence, or other
suitable place.
5. “You shall submit at any time to a search conducted by a probation officer,
without a warrant, of your person, place of residence, vehicle or other
personal property.”
The probation officer may prepare and file a VOP if a probationer refuses to
submit to a duly authorized search by a probation officer conducted in
accordance with the requirements of Directive #14-06, Probation Field
Supervision and Safety Standards. The probation officer should advise the
probationer that a VOP will be filed and the case returned to court, if the
probationer fails to cooperate. If the probationer still fails to submit to the search,
the probation officer shall prepare and file a VOP.
6. “You shall promptly report any change of address or residence to your
probation officer. You must obtain permission from your probation officer
if you wish to move outside the county or state. You may not leave the
state of New Jersey for more than 24 hours without permission from your
probation officer.”
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
7
Knowing where the probationer lives is critical to supervision activities, e.g.,
monitoring, sending notices, etc. Failure to report a change of address or
residence should be considered as a VOP, particularly if a failure to report is
involved.
In order to bring the probationer into compliance, the probation officer should
make a home contact, send a letter and phone a responsible person for
information, as appropriate. In addition, postal traces may be utilized if there is
reason to believe that the probationer is not residing at the address of record.
The goal is to locate the probationer and secure compliance with the conditions
of probation. The probation officer should consult with the supervisor to consider
the background and overall adjustment of the probationer as well as the
circumstances of the change of address.
The probation officer shall file a VOP if these efforts produce no response and
there appears to be an intentional action to avoid supervision.
The probation officer must file a VOP within a week of knowing that a probationer
has left the State of New Jersey without permission and fails to return.
The probation officer may prepare and file a VOP if a probationer leaves New
Jersey without the permission of the probation officer, and fails to return to New
Jersey after 24 hours.
The probation officer may revoke permission to live outside New Jersey. If the
probationer continues to reside in another state after permission is withdrawn,
the probation officer shall file a VOP within one week.
7. “You shall cooperate in any medical and/or psychological examinations,
tests and/or counseling your probation officer recommends.”
The probation officer may prepare and file a VOP if a probationer fails to enroll or
cooperate with a recommended program of treatment. The probation officer
should be able to demonstrate that any examination, test and/or counseling is
justifiable based on the standard that it is “reasonably related” to the
probationer’s rehabilitation or that it is needed because the probationer poses a
danger to him self or herself or to the community. If the probation officer believes
that an examination or evaluation is needed to determine if treatment or
counseling is appropriate, the probation officer should direct the probationer to a
provider. If a course of treatment or counseling is recommended, the probation
officer should make the appropriate referral and direct the probationer to follow
through within a reasonable timeframe.
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
8
As set forth in the Model for Enhancing Probation Supervision: Outcome-Based
Supervision Standards (2000), Standard 23, once an appropriate treatment
program or service is identified, the probationer is expected to enroll and
cooperate fully. The probation officer should maintain regular contact with the
treatment provider to monitor the probationer’s status. Failure to enroll or failure
to cooperate with the program of treatment should be the basis for a VOP. The
probation officer should consult with the supervisor before filing a VOP.
8. “You shall submit to drug or alcohol testing at any time, as directed by
your probation officer.”
Many probationers are addicts when sentenced, and recovery from addiction is
often characterized by alternating success and failure. The probation officer shall
respond to any positive drug test. While any positive drug test may result in a
VOP, this determination must be made on a case by case basis, preserving for
both the probation officer and the judge the right to file or require a VOP at any
instance of a failed drug test. Because addiction is a complex problem, however,
the response to a positive drug test must be based on an assessment of each
case on its own merits, with all options considered. Responses to a positive drug
test, short of filing a VOP, may include a broad variety of sanctions including
increased reporting, increased frequency of substance abuse testing, loss of a
privilege, referral for a substance abuse evaluation, a behavioral contract, an
adjustment conference or any of the other graduated sanctions that are among
the strategies probation uses to assist probationers in achieving rehabilitation. If
a VOP is filed, the probation officer may include in the “Recommendation”
section of the VOP Summary (Form: CN 10077) a recommendation that the court
consider resentencing the probationer to Drug Court. The probation officer
should consult with the supervisor in determining when to file a VOP rather than
resorting to a lesser alternative.
If a probationer refuses to submit a sample or submit to a drug test, this is
tantamount to an admission of drug use and is to be addressed in the same
manner as a positive drug test.
A probation officer should prepare and file a VOP if a probationer submits as a
true specimen a substance that attempts to defraud the administration of a drug
test. If defrauding is involved, the prosecutor’s office will determine if criminal
charges should be filed under the law as described in N.J.S.A. 2C: 36-
10(a),(d),(e).
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
9
9. “You shall support your dependents and meet your family responsibilities.”
The probation officer may prepare and file a VOP where the probationer fails to
make child support payments (Child Support Enforcement Unit can be contacted
for arrearage amount), fails to keep school age children in school, fails to provide
food and shelter, abandons, abuses or neglects children, or engages in other
conduct the probation officer deems inappropriate. The probation officer should
consult with the supervisor in determining when to file a VOP.
10. “You should seek and maintain gainful employment and promptly notify
your officer when you change your place of employment or find yourself
out of work.”
The probation officer may prepare and file a VOP if the probationer willfully fails
to seek, obtain and maintain employment. The probation officer should assist the
probationer in taking all steps possible to seek, obtain and maintain employment.
The probation officer should consult with the supervisor in determining whether to
file a VOP.
11. “You shall not have in your possession any firearm or other dangerous
weapon as defined in N.J.S.A. 2C: 39 et seq. If you possess a permit to
purchase a handgun or a firearms purchaser identification card, you must
surrender these documents promptly to your probation officer. In addition,
if you presently own any weapons, they must be surrendered either to your
local police department or to any other criminal justice agency designated
by your probation officer.”
The probation officer shall prepare and file a VOP if a probationer fails to
surrender any firearm, dangerous weapon, permit to purchase a handgun, or
firearms purchaser identification card after being notified to do so. Probationers
must not have dangerous weapons in their possession throughout the probation
term. Probationers are required to surrender weapons legally or illegally
possessed and may not acquire other weapons while on probation.
12. “You shall make payments on any fine, penalty assessment, restitution or
other financial obligation as provided by Court order. Failure to comply
may result in further Court action, pursuant to N.J.S.A. 2C: 46-2b including
attachment of your wages, filing of a civil judgment, and/or extension of
your probation term.”
The probation officer may prepare and file a VOP if a probationer fails to make
payments on financial obligations as provided by court order. If this is the only
Directive #7-08
Adult Violation of Probation Guidelines and Procedures
Section II. Guidelines for Filing a VOP
10
condition being violated, the probation officer should consider sending the case
to the Comprehensive Enforcement Program (CEP) for enforcement instead of
filing a VOP. The probation officer should consult with the supervisor in
determining whether to file a VOP.
13. “You shall provide a DNA sample as a condition of the sentence imposed,
pursuant to DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17,
et seq. (see L. 1994, c. 136, as amended by, L. 2000, c. 118, as amended by
L. 2003, c. 183 effective Sept.22, 2003) unless you are convicted of a
disorderly persons offense or a petty disorderly persons offense.”
A probation officer shall prepare and file a VOP as soon as the probation officer
becomes aware that the probationer has willfully refused to submit a DNA
sample. Generally, Criminal Division staff directs the probationer to report for
DNA sample collection, usually by the Sheriff, immediately following sentencing.
If a county is unable to collect the DNA sample immediately, Criminal Division
staff provides the probationer with a date, time and site to report for DNA sample
collection.
14. Special Conditions
The court has the authority to impose other conditions at the time of sentencing.
The Code of Criminal Justice provides that in addition to the standard conditions,
the court may require the probationer “to satisfy any other conditions reasonably
related to the rehabilitation of the defendant and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.” See N.J.S.A. 2C:45-
1(b)(12). Any court-ordered special condition is to be enforced on the same
basis as a Standard Condition of Probation.
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
11
III. PROCEDURES FOR FILING ADULT VIOLATIONS OF PROBATION
NOTE: These procedures are tailored to Superior Court cases, but may be adapted for
VOPs arising out of Municipal Court sentences.
1. Response to probationer non-compliance
Probation supervision offers probationers the “conditioned liberty” opportunity to
remain in the community subject to compliance with the rules and conditions
imposed by the sentencing judge. Standard and special conditions impose
obligations and restrictions on the probationer.
Non-compliance with standard and special conditions of probation requires a
response by the probation officer. The following steps should be followed when
a probation officer believes the probationer’s non-compliance is of such a nature
that a VOP should be filed.
2. Consultation with the Supervisor
The probation officer must consult with the supervisor to review the case and
validate that the guidelines for VOPs are being applied fairly and equally, there is
appropriate use of professional discretion, and justification to file a VOP.
3. Preparation of Violation of Probation documents
N.J.S.A. 2C:45-4 requires that prior to revocation of suspension of sentence or
probation, the defendant must be provided with written notice of the grounds for
the proposed action. Further, the defendant must be afforded a hearing at which
he has the right to hear and controvert the evidence against him, to offer
evidence in his defense and to be represented by counsel. These requirements
are consistent with the minimum safeguards required as a matter of due process
as set forth by the U.S. Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778
(1973).
Consistent with the probationer’s due process rights the probation officer must
prepare the VOP Statement of Charges (Form: CN 10076) which is a detailed
description of the alleged violations (sample charging language is on the back of
the form); the VOP Summary (Form: CN 10077) which provides information
documenting the probation officer’s efforts to secure the probationer’s
compliance with the court order and/or serves as a summary for sentencing
purposes; possibly the VOP Addendum (Form: CN 10214) if an update to the
VOP Summary is needed; and the VOP Hearing Summons (Form: CN 10075)
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
12
which informs the probationer of the date, time and place of the hearing, advising
of the opportunity to be heard as to the allegations and that a warrant may be
issued for failure to appear. The right to be represented by counsel is also
indicated.
When a probationer is authorized to move, supervision is transferred to the
county of residence. When the probationer violates the conditions of probation
after such an intercounty transfer occurs, the supervising county prepares the
VOP documents (Forms: CN 10076. 10077, 10214, 10075) and forwards these
to the sentencing county. The sentencing county will schedule the VOP hearing
and send out the notices (Forms: CN 10076, 10075) to the defendant and advise
the probation officer in the supervising county of the date and time of the hearing.
(see Probation Supervision Manual, Inter-county Transfer Procedures, section
2200, J. 1-9)
4. Supervisor reviews and signs VOP documents
The VOP Statement of Charges, Summary and Addendum (Forms: CN 10076,
10077, and 10214) each contain lines for the supervisor’s signature which
ensures that the VOP report has been reviewed and is accurate.
5. The Chief Probation Officer or designee reviews and signs VOP Hearing
Summons
The VOP Hearing Summons (Form: CN 10075) contains a line for the signature
of the Chief Probation officer, indicating that the Chief Probation Officer has
approved the action.
6. Scheduling of the VOP hearing date
Generally, one of three methods is used to select a hearing date:
• Probation officer contacts Criminal Division Management Office for a date; or
• Probation Division schedules within its own time block allotted to it on a
continuing basis; or
• Criminal Division Management Office places the VOP on the calendar.
There may be other methods as well, since the scheduling of the VOP hearing is
determined by local calendaring procedures. The summons notice (Form: CN
10075) must contain the date, time and place of the VOP hearing.
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
13
7. Filing of the VOP -- copies sent to:
• Judge hearing the VOP;
• Prosecutor;
• Criminal Division Management Office;
• Defense Counsel.
R. 1:5-6 (a),(b)(2) requires that filings in criminal actions are to be filed with the
Criminal Division Manager in the county of venue; i.e, where the defendant was
sentenced. The VOP must be filed prior to the expiration of the term of
supervision.
The filing of the VOP document with Criminal Division and commencement of a
probation revocation proceeding tolls the probationary period until termination of
such proceedings. Tolling refers to a suspension or temporary stopping of the
running of the time of the term. In December 2003, the New Jersey Supreme
Court determined that these “…three statutorily authorized initiatives – issuance
of an arrest warrant, summoning a defendant to appear and actual arrest –
constitute commencement for tolling.” State v. Nellom, 178 N.J. 192, 202 (2003).
Thus, in addition to the filing of the VOP, a warrant or a summons to appear must
be issued or an arrest made prior to the expiration of the term of supervision in
order to toll the term.
In addition to prosecuting any new arrest, the Prosecutor is responsible for
prosecuting the VOP. (see Directive #4-06, Prosecutor’s Role in Violation of
Probation (VOP) Proceedings). A VOP is an adversarial process in which the
probation officer is the witness and the Prosecutor represents the State’s
interests. The Prosecutor should be sent a copy of the VOP materials
accompanied by a standard notice, the Memorandum to the Prosecutor (Form:
CN 11201). If no concerns are expressed to the court or Probation within ten
calendar days from the date of the memorandum, the matter will proceed as
scheduled.
8. Notice Given to the Defendant
Notice shall be provided to the defendant by either the Probation Division or the
Criminal Division. Pursuant to R. 1:5-2, personal service is the preferred method
of service. This may be done by the probation officer. The defendant may also
be noticed by certified mail, return receipt requested. At times, persons will not
sign for certified so regular mail can also be sent.
There are some instances where it may be necessary to detain the probationer
prior to the VOP proceedings. (see Sections II.1. D., E. above)
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
14
9. PO and Probation Court Liaison Notification
Once the date of the hearing has been established, the probation officer and the
probation court liaison must also be notified as to the date of the hearing.
Notification should be made by the Probation or Criminal Division (as noted
above).
There may be some differences form vicinage to vicinage as to how the
probation officer and probation liaison receive notice of the VOP hearing but it is
the responsibility of Probation Division to ensure that local practice includes a
reliable method of noticing both the probation officer and the liaison.
10. Defendant Notified Regarding Public Defender Representation and
Application as Appropriate
The defendant has the due process right to be represented by counsel. If a
person under supervision is indigent and unable to afford the services of an
attorney, he or she has the right to appointed counsel on a case-by-case basis.
11. Prosecutor Presents the Case at the hearing
County Prosecutors are responsible for the prosecution of defendants. The
probation officer or a probation court liaison serves as a witness at the VOP
proceeding. If there is a plea of guilty or reasonable grounds are found to exist to
believe that the alleged violations have been committed and there is a “not guilty”
plea, the court may dispose of the matter immediately or schedule a further
hearing.
12. The VOP Hearing Summons
The date, time and place of the hearing must be provided to the defendant using
a VOP Hearing Summons (Form: CN 10075). If the probationer fails to respond
to a summons to appear for the VOP, the court issues a bench warrant.
13. Hearing and Disposition
In a VOP proceeding, two factors are of particular importance in determining
whether the sentence of probation should be revoked and the defendant
resentenced: first, the nature of the non-compliant behavior that led to the
revocation hearing and, second the nature of the offense for which the
probationer was originally sentenced. The first is relevant in determining whether
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
15
probation should be revoked. The second is relevant to the sentence to be
imposed if probation is revoked. The prosecutor and defense attorney should
have the file information made available in accordance with the Rules of
Discovery. R.3:13-3(c), (d), (e).
When the court resentences a defendant because the defendant has violated the
terms of probation, the court may, in most circumstances, impose any sentence
that could have been imposed originally for the offense on which the probationer
was convicted. See N.J.S.A. 2C:45-3b. An exception is a sentence in which the
prosecutor, pursuant to N.J.S.A. 2C: 35-12, waives the mandatory minimum term
in a school zone case or other case with a required minimum term under Chapter
35 and consents to probation. In State v. Vasquez, 129 N.J. 189 (1992), the
New Jersey Supreme Court ruled that the court may not impose such previously
waived mandatory minimum term on a violation of probation sentence. The
court may, however, after weighing the aggravating and mitigating factors
pursuant to N.J.S.A. 2C:44-1, impose a term of imprisonment and, if the court
determines that the aggravating factors substantially outweigh the mitigating
factors, may set a parole ineligibility term of up to one-half of the sentence. See
N.J.S.A. 2C:43-6b. Such minimum term would result from the weighing of the
aggravating and mitigating factors and not from the originally waived minimum
term.
The sentences with original waivers of mandatory minimum terms under N.J.S.A.
2C:35-12 must be distinguished from sentences of defendants admitted to the
Drug Court under N.J.S.A. 2C:35-14. This statute allows the court, on a violation
of probation, to impose any sentence which could have been originally imposed,
including the mandatory minimum term. Most defendants admitted to Drug
Court under this statute, which is referred to as Track One, agree at the time of
the plea to an alternate sentence, including a mandatory minimum term, which
would be imposed if the defendant is terminated from the Drug Court.
14. Final disposition is recorded
The court clerk records the resentence disposition and enters it into
PROMIS/GAVEL. When the Judgment of Conviction is produced, the Criminal
Division forwards a copy to the Probation Division.
15. Probationers and Others Subject to the Interstate Compact
The same supervision requirements and VOP standards apply to those
sentenced in other states and transferred to New Jersey through the Interstate
Compact for Adult Offender Supervision (ICAOS). According to ICAOS Rule
4.101, of the Interstate Commission for Adult Offender Supervision Rules
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section III. Procedures for Filing a VOP
16
(available on the Judiciary Infonet), an offender shall be supervised “consistent
with the supervision of other similar offenders sentenced in the receiving state.”
As with probationers/offenders sentenced in New Jersey, the ICAOS requires the
probation officer in the receiving state to take action on behavior that does not
comply with the standard or special conditions of probation.
ICAOS Rule 4.109 further requires New Jersey to notify a sending state of
significant violations of conditions of supervision within 30 calendar days of
discovery of the violation. The probation officer must complete the ICAOS
Offender Violation Report (Form: CN 11206) and submit it to the Administrative
Office of the Courts Interstate Compact Unit for forwarding to the sending state.
On cases where New Jersey is the sending state, ICAOS Rule 4.109 requires the
probation officer to respond to an Offender Violation Report submitted by the
receiving state no later than ten business days following receipt by the sending
state. The response shall include action to be taken by New Jersey and the date
by which that action will begin and its estimated completion date.
For further guidance on when “retaking” is required by the sending state, see
Chapter 5 of the ICAOS Rules, effective January 1, 2005, available on the
Judiciary Infonet.
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section IV. Guidelines for Authorization to Arrest and Detain for a VOP
17
IV. GUIDELINES FOR THE AUTHORIZATION TO ARREST AND
DETAIN A PROBATIONER FOR A VIOLATION OF PROBATION
Pursuant to N.J.S.A. 2C:45-3(a)(2) a Chief Probation Officer has statutory
authority to request that a probation officer or a peace officer arrest a probationer
without a warrant. Probation officer arrest activities must comply with the
provisions set forth in Directive #14-06, Probation Field Supervision and Safety
Standards. The statute provides that:
At any time before the discharge of the defendant or the termination of the
period of suspension or probation…
[a] probation officer or peace officer, upon request of the Chief Probation
Officer or otherwise having probable cause to believe that the defendant
has failed to comply with a requirement imposed as a condition of the
order or that he has committed another offense, may arrest him without a
warrant.
Guidelines for Detention Warrants
If there is reason to issue an Authorization to Arrest and Detain a probationer for
a VOP, the probation officer should confer with the supervisor. There must be
adequate evidence to indicate serious or repeated patterns of violations of
conditions and a compelling need for detention pending the court’s decisions.
Examples of factors to be considered are:
1. If the probationer is a danger to the persons or property of others.
2. If the probationer is a danger to himself or herself.
3. If there is a risk of flight.
4. If the probation officer believes the probationer has committed or is
committing a serious or persistent violation of probation condition(s).
5. Other reasons deemed appropriate by the court, chief probation officer or
designee.
When the Chief Probation Officer asks another agency (e.g., the county sheriff)
to execute the Authorization to Arrest and Detain, the Probation Division should
follow up on the status, utilizing a central log indicating the date issued, date of
the arrest, and if and when the Authorization was returned.
The Authorization to Arrest or Detain is a two-sided document that can be folded
into three sections (Form: CN 11200). The right side of the Authorization itself is
a receipt for the arrest and detention of the probationer. Upon execution of the
Authorization, this section is to be signed by the arresting agency and returned to
the Probation Division for record keeping. At that time the probationer will be
scheduled for a hearing. (see Section II.1.E. above)
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section V. Jail Credit Guidelines
18
V. JAIL CREDIT GUIDELINES
When completing the VOP Statement of Charges (Form: CN 10076), it is the
obligation of the probation officer to advise the court of the number of jail days to
be credited, noting beginning and end date(s) for each type of credit on the
Statement of Charges. Credit is the total of the time served prior to sentencing
that appears on the Judgment of Conviction, plus any days served in custody
and under parole supervision, in circumstances set forth in State v. Rosado, 131
N.J. 423 (1993).
A probationer is entitled to credit for any time served in custody between arrest
and resentencing. (See State v. Reyes, 207 N.J. Super 126 (App Div 1986) and
R. 3:21-8.)
Where a term of imprisonment is a condition of probation and the probationer is
thereafter sentenced to imprisonment upon revocation of probation, the prior
term of imprisonment is to be credited toward the subsequent term. See N.J.S.A.
2C:45-1e.
Prior Service Credit
The VOP Statement of Charges should distinguish which portion of the prior
incarceration represents prior service of the sentence and which portion
represents presentencing jail credits. Since commutation credits are awarded
against prior service time but not against regular jail credit, the Statement of
Charges must distinguish between the two. Thus, jail credit includes time in
custody prior to the sentencing date, and prior service credit includes time spent
in service of the sentence after the sentencing date.
“Rosado Credits”
Certain credits are granted only on a VOP. The Supreme Court has held that a
defendant is entitled to jail credits for time spent under county parole supervision
in certain circumstances. Stave v. Rosado, supra. If a person is given up to a
364 day sentence as a condition of probation, that probationer is entitled to jail
credits from the date of the incarceration until the date he or she is discharged
from county parole supervision, if subsequently committed for a violation of
probation. Rosado allows for credits from the date of parole release until the
date that parole authorities discharge the defendant from supervision relating to
that 364 day term.
In Rosado, the Court’s decision was based largely on the fact that the
defendant’s status during the 364 day term was that of a parolee and, as parole
is a continuation of custody, calculation of the defendant’s maximum term must
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section V. Jail Credit Guidelines
19
include time served on parole. The Court held that R. 3:21-8 did not apply
because it is limited to cases in which time was served prior to the imposition of
sentence.
Information relating to this discharge date must be obtained by contacting the
local Parole Office to ascertain when the defendant was released from county
parole supervision.
Directive #7-08
Adult Violations of Probation Guidelines and Procedures
Section VI. Guidelines on Providing Information to the Court on Alternate Care Needs
20
VI. GUIDELINES ON PROVIDING INFORMATION TO THE COURT ON
ALTERNATECARE NEEDS
Legislation signed into law on January 14, 2004 and effective April 13, 2004,
establishes requirements to collect information regarding the care of minor
children when the sole caretaker is being incarcerated and to refer the
child(ren) to the Department of Youth and Family Services (DYFS) in certain
situations. See N.J.S.A. 2C:44-6.2. If, in the course of preparing a VOP, the
probation officer determines that the violation may result in the probationer’s
incarceration, information as to whether the probationer is the sole caregiver
must be noted on the bottom of the VOP Summary if it is known.
This following section is included in the VOP Summary form to provide this
information to the court. The probation officer should complete this section
with information available at the time the VOP Summary is completed.
Inquiry about Dependent Children/Disabled Adults if Incarceration is Recommended
Does the Probationer have primary care of children or other dependents?
ô€€€ YES, see attached ALTERNATE CARE ADDENDUM
ô€€€ NO
ô€€€ NOT KNOWN
ô€€€ LAST KNOWN, see narrative below
If the probation officer has no information to suggest that a probationer is the
sole caregiver for a minor child or disabled adult, it is important to advise the
court that no information is known. In that case, the “NOT KNOWN” box
should be checked.
If the probation officer has reason to believe that in the past the probationer
was the sole caregiver of a minor child or disabled adult but is not aware of
current arrangements, the “LAST KNOWN” box should be checked and that
information should be noted in a brief narrative.
If the probation officer has information relevant to current alternate care
needs, “YES” should be checked and that information should be entered on
the Alternate Care Addendum (Form: CN 11203). The Alternate Care
Addendum should be submitted to the court together with the VOP Summary.
This will provide the court with information to make further inquiries regarding
the care of the minor children or disabled adults and to make the necessary
referral to DYFS if indicated.
SUPERIOR COURT OF NEW JERSEY
TcaName
TRIAL COURT ADMINISTRATOR
VcpoName
VICINAGE CHIEF PROBATION OFFICER
SupName
SUPTITLE
VICINAGE VICNUM
COUNTYNAME COUNTY
UnitName
UnitAddress
VIOLATION OF PROBATION – STATEMENT OF CHARGES
State of New Jersey Ind./Acc/Complt. #:
PROMIS #:
Vs. CAPS ID #:
Custody Status:
Jail Credit:
Rosado Time:
Gap Time:
Prior Service:
On the above named appeared in the Superior Court of New Jersey, County and
was sentenced to probation by Judge on the charges of:
Original Charge(s):
Disposition(s):
The defendant is charged with violating the conditions of probation as follows:
Probation Officer Date Supervisor Date
Revised Form Promulgated by Directive #7-08 (04/07/08), CN 10076-English
VIOLATION OF PROBATION
CONDITIONS OF PROBATION
“CHARGING LANGUAGE”
1. A. While under the active probation supervision, the probationer has been arrested and
convicted of a new offense. Specifically: (Date), (location), (charge) (or date of
hearing sentence)
B. While under supervision, the probationer has been charged with a new offense.
Specifically: (date, (location), (charge)
2. The probationer has failed to report to the Probation Officer as directed. Specifically, the
probationer failed to report on the following dates:
3. The probationer has failed to truthfully answer inquiries made by the Probation Officer,
specifically: (date), (location), (details of event)
4. The probationer has failed to permit the Probation Officer to visit residence/other suitable
place, specifically: (date), (location), (details of event)
5. The probationer has failed to submit to a search by the Probation Officer, specifically:
(date), (location), (details of event)
6. A. The probationer has failed to keep the Probation Officer advised of a change of
address, specifically: (date), (location), (details of event)
B. The probationer failed to obtain permission from the Probation Officer to move
outside the county or state, specifically: (date), (location), (details of event)
C. The probationer left the state of New Jersey for more than 24 hours without
permission from the Probation Officer, specifically: (date), (location), (details of
event)
D. The probationer has failed to return to the state of New Jersey as directed by the
Probation Officer, specifically: (date), (location), (details of event)
7. The probationer failed to cooperate in examination/tests/counseling treatment as directed
by the Probation Officer, specifically: (date), (agency), (name of agency representative
who provided documentation), (details of event)
8. A. The probationer failed to submit to drug/alcohol testing as directed by the Probation
Officer, specifically: (date), (agency), (name of agency representative who provided
documentation), (details of event)
B. The probationer submitted urine specimens which tested positive for drug/alcohol
use, specifically: (date), (test results)
C. The probationer submitted an adulterated sample, specifically: (dates), (test results)
Revised Form Promulgated by Directive #7-08 (04/07/08), CN 10076 –English page 1 of 2
Revised Form Promulgated by Directive #7-08 (04/07/08), CN 10076 –English page 2 of 2
9. The probationer failed to support dependant and meet family obligations, specifically:
(date), (name/source of information/documentation), (details of event/financial
institution)
10. A. The probationer failed to seek/maintain gainful employment, specifically: (date),
(name/source of information/documentation), (details of event)
B. The probationer failed to promptly notify the Probation Officer of employment status,
specifically: (date), (name for information documentation), (employer), (details of
event)
11. A. The probationer possessed a firearm/other dangerous weapon as defined in
N.J.S.A 2C:39 et.seq., specifically: (date), (location), (name of person/agency to
provided documentation), (details of event)
B. The probationer possessed and failed to promptly surrender a firearms purchase
permit to the Probation Officer, specifically: (date), (location), (name of
person/agency to provide documentation), (details of event)
C. The probationer failed to surrender a weapon to the local police department/any other
criminal justice agency designated by the Probation Officer, specifically: (date),
(location), (name of person/agency to provide documentation), (details of event)
12. The probationer failed to pay Court imposed financial obligations, specifically: as of
(date financial information is calculated and current), total amount of financial obligation
ordered $ , total amount paid $ , total amount outstanding $ . The
date of last payment being:
13. The probationer has willfully refused to submit a DNA sample, specifically: (date),
(location), (name of person/agency to provide documentation), (details of event)
14. The probationer has failed to cooperate in the performance of Community Service,
specifically: as of (date Community Service information is calculated), the probationer
was ordered to perform Hours, has performed Hours, has Hours
remaining. The last date Community Service was performed was .
15. The probationer has failed to meet the special Conditions of Probation imposed by the
court, specifically:
Revised Form Promulgated by Directive #7-08 (04/07/08), CN 10077-English
SUPERIOR COURT OF
FICER
NEW JERSEY
TRIAL CO TRATOR
VICINAGE CHI ION OF
SUPTITLE
TcaName
URT ADMINIS
VcpoName
EF PROBAT
SupName
COUN UNTY
UnitAddress
Honorable
VIOLATION OF PROBATION SUMMARY
e:
BI/FBI #:
Address:
G STATEMENT
VICINAGE VICNUM
TYNAME CO
UnitName
Probationer Nam Ind./Acc./Complt. #:
PROMIS #:
CAPS ID #:
S
OPENIN
EFFORTS TO GAIN COMPLIANCE
PROBATION ADJUSTMENT
RECOMMENDATION
Inquiry about Dependent Children/Disabled Adults if Incarceration is Recommended
Does the Probationer have primary care of children or other dependents?
YES, see attached ALTERNATE CARE ADDENDUM
NO
NOT KNOWN
LAST KNOWN, see narrative below
Probation Officer Date Supervisor Date
Revised Form Promulgated by Directive #7-08 (04/07/08), CN 10214-English
SUPERIOR COURT OF
R
NEW JERSEY
TRIAL COURT A MINISTRATOR
VICINAGE CHIEF P BATION OFFICE
SUPTITLE
TcaName
D
VcpoName
RO
SupName
VICINAGE VICNUM
COUN UNTY
UnitAddress
TYNAME CO
UnitName
VIOLATION OF PROBATION - ADDENDUM
State of New Jersey Ind./Acc/Complt. #:
PROMIS #:
Vs. CAPS ID #:
Custody Status:
Jail Credit:
Rosado Time:
Gap Time:
Prior Service:
Probation Officer Date Supervisor Date
Promulgated by Directive #7-08 (04/07/08), CN 10075-English
SUPERIOR COURT OF
TRATOR
ON OFFICER
NEW JERSEY
TRIAL CO
VICINAGE CHI TI
SUPTITLE
TcaName
URT ADMINIS
VcpoName
EF PROBA
SupName
COUN UNTY
UnitAddress
VIOLATION OF PROBATION HEARING SUMMONS
o: lt.
CAPS ID #:
hat you are to appear before Judge
of the Court located at on .
of Probation is attached. You will be given the opportunity to be heard
as to these allegations.
vices of
on by the Office of the Public Defender by
contacting:
Failure to appear at this hearing will result in the issuance of a warrant for your arrest.
Date of Issuance Vicinage Chief Probation Officer or Designee
VICINAGE VICNUM
TYNAME CO
UnitName
T RE: Ind./Acc./Comp
PROMIS #:
In accordance with N.J.S.A. 2C:45-3, you are hereby notified t
Notice of the Violation
Your have the right to be represented by an attorney. If you are unable to afford the ser
an attorney, you may apply for representati
Probation Officer Telephone Number
SUPERIOR COURT OF NEW JERSEY
TcaName
TRIAL COURT ADMINISTRATOR
VcpoName
VICINAGE CHIEF PROBATION OFFICER
SupName
SUPTITLE
VICINAGE VICNUM
COUNTYNAME COUNTY
UnitName
UnitAddress
MEMORANDUM
To: County Prosecutor
From: Probation Division
Re: VIOLATION OF PROBATION
NAME
IND/ACC/Complaint #
PROMIS #
CAPS ID #
Date: _
Attached is the documentation which the Probation Division has prepared in order to process the above
named individual for a violation of probation. Please advise the Probation Officer named below of any
procedural concerns that might interfere with prosecuting the VOP.
Thank you for your continued cooperation.
Probation Officer Phone Number
Vicinage Chief Probation Officer/Designee Phone Number
Promulgated by Directive #7-08 (04/07/08), CN 11201-English
MAIL TO:
Probation Officer
Address
Address
City State Zip Code
Telephone Number
PROBATIONER IDENTIFIER
Name:
AKAs:
Age: Sex: Race:
Eye Color: Hair Color:
Height: Weight:
Special Marks (Scars/Tattoos, etc.)
Date of Birth:
Place of Birth:
Social Security #:
SBI #: FBI #:
Driver=s License #:
State:
Last Known Address:
Last Known Employer:
Warrant No.
The State of New Jersey
vs.
Warrant
Authorization to Arrest and Detain a
Probationer for Violation of Probation
Vicinage Chief Probation Officer
Promulgated by Directive #7-08 (04/07/08), CN 11200-English page 1 of 2
The State of New Jersey
vs.
Warrant Number:
Warrant
AUTHORIZATION TO ARREST AND DETAIN A
PROBATIONER FOR VIOLATION OF PROBATION
Probation #:
Court:
Judge:
Indictment/Acc./Comp#:
Promis/Gavel #:
THIS IS TO CERTIFY that , a person
convicted of an offense and placed on probation and in my care for a charge of
, has, in my judgment, violated probation, in that:
THIS IS THEREFORE your authorization for the arrest and detention of the said
individual in the
of until this person can be brought before the Court as required by
N.J.S.A. 2C:45-3.
Dated:
Vicinage Chief Probation Officer
RECEIPT FOR WARRANT AUTHORIZING ARREST AND DETENTION OF PROBATION VIOLATOR
To be returned to the office of the Vicinage Chief Probation Officer
Probationer: NUMBER:
Address:
Probation Number: Court:
Probation Officer:
Date of Expiration of Probation Term:
Date of Issuance of Warrant:
Warrant Sent to:
SIGNATURE TITLE PHONE
of person completing this form
Promulgated by Directive #7-08 (04/07/08), CN 11200-English page 2 of 2
SUPERIOR COURT OF NEW JERSEY
TcaName
TRIAL COURT ADMINISTRATOR
VcpoName
VICINAGE CHIEF PROBATION OFFICER
SupName
SUPTITLE
VICINAGE VICNUM
COUNTYNAME COUNTY
UnitName
UnitAddress
CONFIDENTIAL ~ NOT TO BE RELEASED
ALTERNATE CARE ADDENDUM
Probationer’s Name: Ind./Acc/Complt. #:
PROMIS #:
Address: CAPS ID #:
Custody Status:
SBI/FBI#:
Social Security #:
DEPENDENTS Needing Alternate Care
Has the Probationer made Alternate Care Arrangements? YES NO
Names and Relationships of Dependent Children/Disabled Adults in Probationer’s primary care:
1.
2.
Name
Name
Relationship
Relationship
Age
Age
Gender
Gender
3. Name Relationship Age Gender
Are any of the dependents disabled? YES NO
If yes, indicate which: 1 2 3
ALTERNATE PROVIDER INFORMATION
Name
Address
Telephone
DOB AGE Gender SSN
Relationship
Does Probationer indicate that the provider is willing to assume responsibility?
YES NO NOT KNOWN
Probation Officer Date Supervisor Date
Promulgated by Directive #7-08 (04/07/08), CN 11203-English
OFFENDER
VIOLATION REPORT
To: Date: Type of supervision:
Parole Probation
Other:
Is this case:
Registered Sex
Offender
Victim sensitive
From: Phone #: Fax #:
OFFENDER INFORMATION
Offender’s full name (last, first, MI): Offender number:
Sending state#: Receiving state#:
AKA:
SS#: (if available) FBI#: (if available) Sex: Race: DOB:
TYPE OF REPORT (check all that apply)
Violation(s) without arrest
Arrest
Absconder
Conviction
RECOMMENDATION
Remain under supervision
Order offender to return to sending state
Warrant requested
OFFENDER CUSTODY STATUS & LOCATION
In custody, current location:
On bond, amount: $
ROR
CURRENT RESIDENCE
Offender resides with – name, relationship:
,
Phone #:
Address: City: State: Zip:
EMPLOYMENT STATUS
Employed full time
Unemployed/reason:
Offender’s employment:
Employer’s street address: City: State: Zip: Telephone #:
Offender’s employment supervisor: Offender’s job title:
NEW ARREST INFORMATION
Date: City: County:
Case #:
Arresting Agency:
Case #:
Offense description (attach offense report, if available):
(Revised 2/4/08)
Offender Violation Report 2
CURRENT SPECIFIC VIOLATIONS
(Specify violation and provide all details to support the violation below*, including evidence, witnesses’
names, and witnesses’ contact information)
Violation Date occurred
123
4
5
*Details of current violation(s):
Previous Violation Date of Report Date of Response
1
2
3
4
5
Offender’s compliance to prior sanctions following violation:
ABSCONDING INFORMATION
Last known address:
Last known employment information:
Date of last face-to-face contact with offender:
Details of how offender was determined to be an absconder:
NEW CONVICTION INFORMATION
Date of sentence: Offense(s): Felony Misdemeanor Other
Disposition: Guilty Not guilty No contest Charges withdrawn
Name and location of court: Case #:
Sentence:
If incarcerated, name and address of holding agency:
ATTACHMENTS
Check all information that is
attached to this form:
Police report
Toxicology report
Preliminary findings report
Other documentation
regarding violation

Supervising Officer/Location: Date: Compact Administrator/Designee: Date: