NJ 2C:35-10. Drug possession.

Defending NJ 2C:35-10.  Drug possession.

After you read the following NJ criminal statute (drug possession) you may decide that you need the help of a lawyer, or need a legal interpretation of how this statute applies to your case.  The firm of Villani & DeLuca has experienced criminal lawyers with over 20 years of experience, including a former municipal prosecutor.  Call the number above for a free 24×7 phone consultation or read more about the drug offense charge.

Drug Possession Summary

Simply put, the charge of drug possession involves the act of purposely or knowingly possessing an illegal drug classified as a controlled dangerous substance or controlled substance analog in New Jersey.  A “controlled substance analog” is a substance which has a chemical structure substantially similar to that of a controlled dangerous substance and was specifically designed to produce an effect substantially similar to that of a controlled substance.

What the State Needs to Prove for a Guilty Verdict

To obtain a guilty verdict for a drug possession charge in New Jersey, the prosecutor is required to prove beyond a reasonable doubt that the defendant possessed or obtained a controlled dangerous substance or controlled substance analog in a knowing or purposeful manner.  It may be proven that a person is in possession of a CDS even if it was not physically on his or her person at the time of the arrest.  “Possession” under this law means a conscious, knowing possession, either actual or constructive in nature.

Possible Defenses to Drug Possession

One way to try to avoid a conviction for drug possession in New Jersey is by establishing that you did not have possession, in either an actual or constructive way, of the CDS in question.  For example, if another individual was with you when you were arrested for drug possession, you may be able to prove that he or she was the only person with any type of possession over the drug.  This can be difficult to fight, as two or more people can have joint possession over CDS.

Additionally, a defendant can prove lawful possession over a controlled dangerous substance if he or she can show that it was a medication prescribed to him or her by a physician or other professional practitioner.

Penalties for a Drug Possession Conviction

As with other drug crimes in New Jersey, the penalties for drug possession vary depending on the category of drugs involved and the amount of drugs one possesses.   The possession of a controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV is a third degree crime, and a fine of up to $35,000 may be imposed upon conviction.  The possession of a drug categorized as a Schedule V drug is a crime of the fourth degree and a fine of up to $15,000 may be issued.

Marijuana possession in an amount more than 50 grams is a crime of the fourth degree in New Jersey.  A fine of up to $25,000 may be imposed if found guilty of this offense.  However, possession of 50 grams or less of marijuana is a disorderly persons offense with lower penalties.

The punishment for drug possession is increased if it occurs while on school property or within 1,000 feet of a school zone.

NJ Statute: 2C:35-10.  Possession, use or being under the influence, or failure to make lawful disposition.

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.

L.1987, c.106, s.1; amended 1988, c.44, s.5; 1997, c.181, s.6.

AKA: NJ Criminal Charge 2C:35-10, Violation 2C:35-10, Offense 2C:35-10

Disclaimer: A copy of this statute has been provided for your information. This wording was current from the NJ website lis.njleg.state.nj.us as of August 2012.

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