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New Jersey Possession of CDS – NJSA 2C:35-10

23
Jul
2011

by in Drug Defense

NJ CDS Possession Lawyer

There are ways to defend a New Jersey drug charge. Most defenses must be made before your trial or they are waived. These include defenses based on an illegal search, an improper stopping of your car, or a tip by a confidential informant. You need an attorney who understands these issues. Call now to speak with a NJ drug charge lawyer. I defend against both adult and juvenile drug charges throughout the State of New Jersey.

The majority CDS possession charges in New Jersey are governed by NJSA 2C:35-10. Possession, use or being under the influence, or failure to make lawful disposition. These charges are often accompanied by a complaint for possession of drug paraphernalia, contrary to NJSA 2C:36-2. This can be for possessing a pipe, bowl, stem, syringe and any other item used to ingest or inhale. I have represented individuals who have been charged with paraphernalia possession for items as seemingly benign as a pen, and even a tampon.

New Jersey CDS Charges

That statute reads:

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:

  1. A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $ 35,000.00 may be imposed;
  2. Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $ 15,000.00 may be imposed;
  3. Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $ 25,000.00 may be imposed; or
  4. Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.

Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

Typical CDS Possession Charges

  1. Marijuana
  2. Oxycontin
  3. Cocaine
  4. Heroin
  5. Methamphetamine
  6. Ecstasy
  7. Prescription Pills and Painkillers
  8. Possession of CDS in a motor vehicle. This is not a criminal charge but a traffic violation. The applicable statute is NJSA 39:49.1

Ways to Defend a CDS Charge in New Jersey

An experienced criminal defense attorney will demand that police produce every piece of evidence they have against you. The state must also produce all evidence that is in their possession that may help your defense under Brady v. Maryland. After carefully reviewing all evidence in your case, we will devise your best strategy for defending against the charges. Some typical charges include:

  1. Lack of probable cause to arrest
  2. No reasonable suspicion to stop your car
  3. No probable cause to ask for consent to search vehicle
  4. No explanation of right to refuse consent
  5. Consent to search not given voluntarily
  6. No actual or constructive possession
  7. Exoneration by co-defendant
  8. Challenges to lab testing of CDS
  9. No warrant to search
  10. No “exigency” exception to warrant requirement

There are other challenges that can be made depending on the facts of the case. Diversionary programs may also exist for some first-time offenders. An experienced New Jersey CDS possession lawyer can help guide you through this process and make sure that your rights are protected.

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