Drug Possession, Use, or Being Under the Influence of Drugs or Narcotics (Controlled Dangerous Substances (CDS)) in New Jersey – Which is a Felony and and What Your Lawyer Must Tell You

New Jersey, like all States, including Pennsylvania, maintains strict laws which target the illegal use and possession of drugs and narcotics which it classifies as controlled dangerous substance (CDS), or its analog, classified in Schedule I, II, III or IV.   In New Jersey, the possession of CDS is a felony; this is different from Pennsylvania where possession is graded as a misdemeanor offense.  There is a substantial difference between felony and misdemeanor crimes.  Felonies carry with them a lifelong stigma, can affect a person’s ability to vote and own a handgun or any firearm. 

Possession of Controlled Dangerous Substance (CDS) is a Felony Crime in New Jersey

Under 2C:35-10 (a), it is a felony crime in New Jersey for any person to obtain, or to possess, actually or constructively, a controlled dangerous substance (CDS) unless it was obtained with a valid prescription or order form from a doctor.  A person who is wrongly in Possession of a CDS in Schedule I, II, III or IV, is guilty of a crime of the third degree where the maximum punishment is 5 years of State Prison while possession of more than six ounces of marijuana, including any adulterants or dilutants, or more than 17 grams of hashish is guilty of a crime of the fourth degree where the maximum punishment is 18 months of New Jersey State Prison. 

What is actual vs. constructive possession in New Jersey?

Actual possession is when the alleged contraband is found on the suspect’s person. Constructive possession is when the item is found in the persons area of immediate control.  It is very important to understand that your criminal defense lawyer must have a strong command of this concept because it is often critical in any trial involving individuals who often face felony convictions and the possibility of State prison. 

When should your criminal defense lawyer make the constructive possession argument? 

A strong constructive possession argument is often made when the contraband is found in a trunk or perhaps in a container where several people have access to the said container. Your criminal defense lawyer should make all arguments because the burden is on the State to prove guilt beyond a reasonable doubt, which is the standard in all criminal Courts across the United States.

Your criminal defense attorney must evaluate actual constructive possession and form arguments around these concepts.  If you have questions about these concepts, you should ask your criminal defense lawyer and that person should be able to explain them to you in a clear and concise manner.

Actual and constructive possession is also an argument that can assist with bail both in Pennsylvania and New Jersey.  Pennsylvania’s bail system is based on a monetary amount and New Jersey is based on a Public Safety Assessment (PSA).  The factors which determine bail are danger to the community, potential flight risk and of the allegations made against the individual. 

What to do if police stop your vehicle and want to search it for an illegal handgun, drugs or narcotics? 

Our criminal defense law firm represents persons charged with crimes in Pennsylvania and New Jersey.  These crimes involve allegations of drunk driving, illegal drug, narcotics, and possession of illegal guns and firearms.  We always tell readers and clients to respect police and law enforcement but to never give consent to search their vehicle, their home or property.  In addition to not giving consent to search, a person should never speak to police without a lawyer present. 

Being Under the Influnence is Not a Felony in New Jersey

While possession is a felony crime in New Jersey, being under the influence of a CDS is not a felony but a disorderly persons offense.  Under 2C: 35-10 (b), any person, in New Jersey, who uses or who is under the influence of any controlled dangerous substance, or its analog, not including marijuana or hashish, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.  Remember that possession or use of marijuana is no longer criminal in New Jersey provided it doesn’t exceed the legal weight limits for possession. 

Because marijuana is now legal in New Jersey, police can not use the odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a car or vehicle.  This means that based on this type of evidence alone, police cannot arrest or even detain someone for suspicion of illegal drug possession the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. 

How can the State prove “being under the influence” of a Controlled Dangerous Substance (CDS)

Finally, It is important to understand that the State (prosecution) doesn’t need to prove that the accused did use or was under the influence of any specific drug.  For a conviction, the State only has to prove that the accused did use or was under the influence of some CDS, by proving, beyond a reasonable doubt, that the accused did manifest physical and physiological symptoms or reactions caused by the substance.

If you are charged with a drug crime in New Jersey, contact our law firm today! 

Contact Our New Jersey Criminal Defense Lawyers

Please click here to contact our  criminal defense lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey,  Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.