Defendant Robert V. Haynie was arrested on September 22, 1970 for illegally possessing .03 grams of marihuana. He was subsequently indicted under N.J.S.A. 24:18-4 for the illegal possession of a narcotic drug. On May 24, 1971 he pleaded guilty to the downgraded offense of using a narcotic drug under N.J.S.A. 2A:170-8.
On May 27, 1971 defendant Edgar Acosta pleaded guilty to the illegal use of a narcotic drug on February 28, 1970, contrary to the provisions of N.J.S.A. 2A:170-8.
Under N.J.S.A. 2A:170-8, which has now been repealed, such violations as disorderly person offenses were punishable under N.J.S.A. 2A:169-4, which provides:
Except as otherwise expressly provided, a person adjudged a disorderly person shall be deemed to have been guilty of a petty offense and shall be punished by imprisonment in the county workhouse, penitentiary, or jail for not more than 6 months, or by a fine of not more than $500.00 or both.
In addition to this general penalty, N.J.S.A. 2A:170-8 also provided for the mandatory forfeiture of the offender's right to operate a motor vehicle in this State for a period of one year.
The issue presented by this case is whether a judge is required to sentence under N.J.S.A. 2A:169-4 or has the discretion to prescribe sentence under the newly adopted Controlled Dangerous Substances Act, L. 1970, c. 226, which repealed N.J.S.A. 2A:170-8.
Defendants have no prior convictions for any narcotic offenses. Under section 27 of the new act (N.J.S.A. 24:21-27) the sentencing judge has the discretion of placing a defendant, with his consent and upon notice to the prosecutor, on probation without ever entering a judgment of conviction against him. This section further provides:
Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities, if any, imposed by law upon conviction of a crime or disorderly person offense, but shall be reported by the clerk of the court pursuant to the Controlled Dangerous Substances Registry Act. Discharge and dismissal under this section may occur only once with respect to any person.
The new act in section 28 (N.J.S.A. 24:21-28), also provides a procedure by which a young offender may apply to the court for an order to expunge all recordations of his arrest, trial and conviction except those required under the Controlled Dangerous Substances Registry Act of 1970, L. 1970, c. 226. Section 28 continues:
The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and trial. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial in response to any inquiry made of him.
As one can see from the above portions of the new act, the Legislature, presumably aware of the increased experimentation with marihuana among our younger generation, provided procedures by which a one-time experimenter may be freed of the stigma and ...