Drug Possession Lawyer in New Jersey
Experienced Criminal Defense Lawyer Advocates For Clients Arrested For Drug Possession In Middlesex County, Mercer County, Union County, Ocean County, and Burlington County, NJ
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It’s normal to be feeling lost, scared, or worried after you’ve been charged with drug possession in New Jersey. This is something that many people have gone through, so you’re not alone. We don’t judge people based on their charges, we know you’re a good person, and we want to help. Let’s talk about your case – consultations are always free, so contact us today.
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Ways You Can Be Charged with Drug Possession
Getting arrested for drug possession can be scary. All drug arrests in New Jersey require the suspect to be fingerprinted and processed. This occurs at the local police station in the town you were arrested. If you were arrested by NJ State Police, you will be processed at the state police barracks that has jurisdiction over that particular area.
There are four procedural ways you can be charged with drug possession in New Jersey:
1. On a summons. This is the most common method. A complaint summons charges you with specific offenses and gives you an initial date to appear in court.
2. By a warrant. Like a complaint-summons, a warrant also informs you of the offenses you have been charged with. The warrant does not simply give you a court date though. Rather, the warrant commands the law enforcement officer to arrest, process, and transport you to the county jail. You will then have to appear before a judge who will decide whether to keep you detained or release you pending trial.
3. By indictment. An indictment is a charging document issued by a state grand jury. An indictment is returned when a majority of the grand jury votes that there exists probable cause for the charges against you. This only occurs with indictable or felony offenses.
4. By accusation. An accusation is a charging document used by county prosecutors offices in lieu of an indictment. They are used to facilitate the plea bargaining process in Superior Court. They can be used directly by the prosecutor and do not require grand jury presentment. Since the grand jury exists for your benefit, you must waive your right to an indictment in order to plead guilty to an “accusation.”
Controlled Dangerous Substance (CDS) Possession Charges in NJ NJSA 2C:35-10
The overwhelming majority of drug arrests in New Jersey originate with motor vehicle stops. However, persons, structures, even homes can only be searched in certain circumstances. An understanding of search and seizure law is therefore critical for a New Jersey drug possession attorney.
However, assuming a search was justified and the results of the search cannot be suppressed, the next thing to be assessed by your drug defense attorney is whether you were in “possession” of the substance within the meaning of the law.
Faced with Drug Charges in NJ? Understand the Legal Background of Drug Possession Charges
The majority of CDS possession charges in New Jersey are governed by NJSA 2C:35-10. Possession, use or being under the influence, or failure to make a 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.
Criminal possession is said to mean “intentional control and dominion, the ability to affect physical and care for the item during a span of time” knowledge of the identity of what the item is. Such possession can be constructive rather than actual.“Actual” possession is pretty straightforward. This means that the item or substance was usually on your person or under your direct control. “Constructive” possession is more complicated. This is where a drug defense attorney may decide your case is worth taking to trial after all pre-trial and search issues fail.
Possession with a Co-defendant – “Constructive Possession”
This should not suggest that the state can never prove possession when the drug or item is not on your person. Quite the contrary is true. Physical or manual control of the proscribed item is not required. There must only be an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists.
Moreover, possession can be jointly shared by several persons. Even in the absence of actual possession, a person may be viewed as being in “possession” of an item.
However, constructive possession cannot be based on mere presence at the place where contraband is located.
There must be other circumstances or statements of the defendant permitting the inference of the defendant’s control of the contraband.
Examples of Drug Possession Charges in NJ
Constructive Possession in Heroin Case
In State v. Shipp, a vehicle was stopped for speeding on Route 80 on its way from New York to Cleveland, Ohio. A substantial quantity of heroin was being carried by a rear-seat passenger. It was located in a vinyl bag belonging to her and in which she had other personal belongings. The front seat passenger was her son-in-law. The New Jersey Supreme Court reversed the son-in-law’s conviction, which had been based on constructive possession, concluding, despite the family relationship, that “defendant’s presence in the automobile under [these] circumstances . . . does not suffice to authorize an inference that he was sharing in the intentional control and dominion over the contraband material.” Id. at 666. The court also held that “[m]ere knowledge, without more, on the part of one automobile passenger that a co-passenger is carrying illicit drugs does not constitute the former a co-possessor.” Ibid.
Constructive Possession in Cocaine Possession Case
In State v. Palacio, there an automobile was stopped for speeding on Route 40 in Pennsville. Both driver and passenger were Florida residents. The driver had what seemed to the officer to be drug paraphernalia on his person. Both he and his passenger were asked to step out of the car. During the trooper’s ensuing questioning, the passenger appeared to him to be “sweating, moving in circles,” and “overly nervous.” As the vehicle was being searched after back-up officers arrived. The officer believed both the driver and passenger to be acting suspiciously as they watched the proceedings. Although both apparently spoke English, they conversed together in Spanish for the presumed reason of concealing the content of their conversation from the police. The search revealed a secret compartment in the trunk containing fifteen pounds of cocaine having a street value of close to one million dollars.
The New Jersey Supreme Court held that because of the monetary value of the drugs, which it characterized as “infinitely greater” than that involved in Shipp, it was unlikely that the driver would have anyone other than a confederate in the car with him, particularly on so long a trip as from Florida to New Jersey. The court also placed significant emphasis on the passenger’s untoward behavior, namely, his extreme nervousness, his suspicious conduct during the search, and his conversing in a language the police would not understand.
New Jersey Possession of a Controlled Substance Schedule
Possession of controlled substance charges in New Jersey are graded according to a schedule. Basically, possession of any commonly used substance (other than marijuana and hashish), is a crime (felony) in the third degree. This includes cocaine, heroin, oxycontin, and ecstasy. A third-degree crime is punishable by 3-5 years of prison, up to a $35,000 fine (in drug cases), although a presumption of non-imprisonment applies to first-time time offenders. All drug charges in New Jersey also carry a mandatory minimum 6-month drivers’ license suspension regardless of whether the offense took place in a car.
New Jersey Drug Possession Controlling Statute
New Jersey’s basis drug possession statute reads as follows:
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:
- 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;
- 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;
- 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
- Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Federal Drug Possession in New Jersey
The penalties for a federal drug possession conviction under the Controlled Substances Act (21 U.C.S.A. §§ 801 et. seq.) are severe. The Controlled Substances Act classifies drugs into five schedules. Schedule I drugs are the most dangerous and Schedule V drugs are the least dangerous. The penalties depend on the schedule of the drug and the amount in a person’s possession.
Schedule I or II possession: In smaller quantities, a first offense conviction typically results in 5-40 years in prison and a fine of up to $2 million. Second offenses result in 10 years to life in prison and a fine of up to $4 million. Penalties for a first offense conviction of larger amounts also usually include a prison term of 10 years to life and a fine of up to $4 million.
Marijuana possession: Depending on the amount, fines can range from up to 5 years in prison (less than 50 kg) to life in prison (1,000 kg or more).
Possession of Drug Paraphernalia Under New Jersey Law
Many people who face charges for drug possession also face charges for possession of drug paraphernalia.
Under the New Jersey Code of Criminal Justice (N.J. Rev. Stat. § 2C:36-1), drug paraphernalia is any object used to grow, make, package, or introduce “into the human body a controlled dangerous substance”.
If you are charged with possession of drug paraphernalia, you can face a disorderly persons conviction with up to six months in jail and a fine of up to $1,000.
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.
Ways to Defend CDS Possession Charges in New Jersey
An experienced drug possession 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:
- Lack of probable cause to arrest
- No reasonable suspicion to stop your car
- Lack of probable cause to ask for consent to search the vehicle
- No explanation of the right to refuse consent
- Consent to search not given voluntarily
- No actual or constructive possession
- Exoneration by co-defendant
- Challenges to lab testing of CDS
- No warrant to search
- 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.
Contact a New Jersey Drug Possession Lawyer Today
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