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How to Get a Possession Charge Dismissed in New Jersey

November 25, 2019

how to get a possession charge dismissed

Common NJ Drug Arrests

Been arrested for a possession charge in NJ? This is the most common question new clients ask after being arrested for drug possession. This article answers some questions about how to get possession charges dismissed in NJ.

The most common type of drug possession is possessions of marijuana. The applicable statute is NJSA 2C:35-10(a)4. This is a disorderly persons level offense handled in municipal court. Frequently, another disorderly persons possession offense for drug paraphernalia gets added on top of the marijuana charge. The applicable statute is NJSA 2C:36-2. The next most common drug related offense is possession of a controlled dangerous substance. The governing statute for this offense is NJSA 2C:35-10(a)1. This is a third-degree indictable offense. Indictable means felony.

This only includes the most common drug offenses, but many others exist. However, no matter which drug offense you face, many of the same defenses apply. Its important to know how you can get those charges dismissed if you have been arrested for drug possession.

Do you need to know how to get a drug possession charge dismissed? The most common ways to beat a drug possession charge in New Jersey involve denial, insufficient evidence, illegal search issues, laboratory report objections, and statutory defenses. Keep reading to find out more about which defenses might apply to your case, or contact a drug charges defense lawyer at the Law Offices of Anthony J. Vecchio.

Unlawful Searches

The 4th Amendment to the U.S. Constitution protects against unreasonable searches and seizures. In many cases, police need a warrant to conduct a lawful search. Warrantless searches are presumed to be invalid.

A warrant isn’t always necessary. Police can search for items and areas where a person has no reasonable expectation of privacy. Police may also seize drugs that are in plain view. In some cases a suspect gives police permission to search their car. Motor vehicle “probable cause” searches have been green lit by the New Jersey Supreme Court. This exception did not previously apply. The are a few situations where police may conduct a search without a warrant

You Were Not in “Possession” of the Drugs

Actual Possession

There are two ways the state can prove you were in illegal possession of a drug. The first is “actual” possession. This is where evidence is found on your person or in an area that you alone control. In such situation, possession can easily be established. The state still must establish your knowledge that the illegal drug was present. This is a burden your attorney can hold the state to establish beyond a reasonable doubt. This is a very high standard of proof.

Constructive Possession

The second method of proof is called “constructive” possession. This is usually applied when drugs are found in an area controlled by two or more people. The state bears the burden if proof beyond a reasonable doubt in all criminal cases. That burden applies to each element of each offense. In a constructive possession case, the state must prove that you 1) had the intent to control the item, and 2) you generally knew what it contained. If your attorney can show that exists just a reasonable doubt as to either of these elements, the case must be dismissed.

A related defense would be that the drugs were “planted.” This does not come up very often in practice these days. Such situations have unfortunately occurred before. Accordingly, your attorney needs to be diligent in carefully reviewing all evidence in your case for any irregularities .

Even if you believe this may have occurred in your case, this defense is difficult to raise. Judges and juries are not supposed to give any special deference to police testimony. Police testimony should legally be considered for credibility the same as the testimony of any other person. In practice however, police testimony is highly trusted. Your attorney may be able to file a motion to release police files. These files may have information that would be useful in arguing that the drugs were planted, such as prior wrongdoing by the officer.

The Drug Wasn’t an Illegal Substance

The prosecution needs to show that the substance they found is actually an illegal drug. For example, a bag of white powder might look like cocaine when, in reality, it’s only flour. A more common example relates to cannabis / marijuana containing THC versus CBD  A crime lab analyst needs to verify that the substance is actually an illegal drug to satisfy this requirement.   

This is done through the introduction into evidence of a certified laboratory report. Special rules apply to the state’s ability to use such a lab report. Specific rules also apply to your ability to challenge a lab report. These are discussed below.

Challenges to Lab Reports

The rules that control the admission of lab reports into evidence in a drug case are set out in NJSA 2C: 35-19. This rule has some strict guidelines that must be followed. If they are not followed, the lab report may be thrown out in your case.

It is important to file timely objections to lab reports. You may lose your right to challenge the report if you fail to do so. The objection must also articulate the actual challenges you are raising. A defense attorney must have a technical understanding of the various lab issues to maximize your chance of success.

Discovery Violations

In NJ state court, you are entitled to all evidence the state has against you. In a drug case, the state is obligated to provide you various items. Failure to do so may result in the suppression of evidence in your case. That means that the judge agrees throw out the evidence in your case. It may be impossible for the state to continue prosecuting you once the lab report is thrown out. This can result with the dismissal of your case.

This does not happen automatically. Your attorney needs to be proactive and diligent. You must trigger the state’s obligation by submitting a discovery request. Then the discovery provided must be carefully reviewed. If anything relevant is missing, you take it up with the judge. You do this by filing a motion for discovery. This is sometimes referred to as a “Holup” motion.

The Drugs Are Not Submitted into Evidence

In some cases, it is not practical for the state to actually submit the actual drugs into evidence at trial. The prosecution will be hard-pressed to show that the substance found is an illegal drug if it is nowhere to be found. Evidence is often transferred multiple times before it makes its way to a locker for trial. This can cause evidence to be misplaced or lost. This is why an attorney must carefully review all discovery items. The attorney must also do everything to force the state to establish an uninterrupted chain of custody for any drug samples.

Entrapment

Entrapment is when a police officer pressures or induces someone to commit a crime they wouldn’t otherwise commit.  Police commonly conduct “controlled buys” of drugs. This is when the police themselves set up the deal and observe it. Entrapment is a statutory defense in NJ. Depending on the facts of your case, entrapment may be a potential defense.

Statutory Defenses 

Another possible defense is that you are legally allowed to possess the controlled substance, or you fall under a legal exception. 

You have a valid prescription

If you carry a valid prescription for a controlled substance, then your possession of that substance isn’t illegal. 

Medical Marijuana

In New Jersey, patients who carry a medical marijuana ID card are allowed to possess up to 2 ounces of usable marijuana per month. 

This defense is never available on federal drug charges. However, if you’re being charged under state law, this defense might be available. 

Good Samaritan Law

In 2013, New Jersey adopted the Overdose Prevention Act to help reduce overdoses and fatalities.  The law gives immunity to people who seek medical attention for themselves or on behalf of someone else in connection with a drug overdose. The immunity protects them from being arrested, charged, prosecuted, or convicted for a drug offense.  The defense also applies to the person who was overdosing as well.

Defend Yourself Against Drug Possession Charges with a Criminal Defense Attorney

Do you need to know more about how to get a possession charge dismissed? Beating a drug possession charge is no easy task. The best way to make sure you’re aware of every defense that might apply to your case is to contact an experienced criminal defense attorney.

Criminal defense attorneys use the defenses above and more to potentially reduce penalties or eliminate the charge altogether.

Contact the Law Offices of Anthony J. Vecchio to schedule your free consultation.

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