NJ 2C:35-10.5. Prescription drugs.

Defending NJ 2C:35-10.5.  Prescription drugs.

After you read the following NJ criminal statute (prescription drugs) 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.

Prescription Drug Possession Summary

The charge of prescription drug possession involves the act of actually or constructively possessing a type of prescription medication in New Jersey.  One can also be charged with distribution under this law for illegally distributing a prescription drug to another.  It is unlawful to possess or use any medication prescribed to another person in New Jersey.

What Needs to be Proven for a Guilty Verdict

To obtain a guilty verdict for prescription possession in New Jersey, the prosecutor is required to prove beyond a reasonable doubt that the defendant possessed prescription drugs without a prescription.  “Possession” under this law means a conscious, knowing possession, either actual or constructive.

To get a conviction for distribution of prescription drugs, the State must prove that the drugs in question were actually distributed or possessed by the defendant with the intent to distribute, that they were for pecuniary gain, and that the prescription drugs distributed were in an amount required under the statute.

Possible Defenses to Prescription Drug Possession

One way to try to avoid a conviction for prescription drug possession in New Jersey is by establishing that you did not have possession, in either an actual or constructive way, of the medication 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 possession over the drug.  This can be difficult to fight, as two or more people can have joint possession over drugs.

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

Penalties for a Prescription Drug Charge

As with other drug crimes in New Jersey, the penalties for prescription drug possession vary depending on the amount one possesses.   For example, it is a second degree criminal offense for a person to distribute, possess, or have under his or her control with intent to distribute a prescription drug in an amount of 100 or more dosage units.  It is a crime of the third degree for a person to distribute, possess, or have under his or her control with intent to distribute a prescription drug in an amount of at least five but less than 100 or more units.  It is a fourth degree crime to distribute for pecuniary gain, possess, or have under one’s control with intent to distribute for pecuniary gain a prescription drug in an amount of four or fewer dosage units.

The fines associated with prescription drug crimes are higher than other offenses of the same degree.  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:35-10.5.  Prescription legend drugs.

a. A person who knowingly:

(1)distributes a prescription legend drug or stramonium preparation in an amount of  four or fewer dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person;

(2)distributes for pecuniary gain or possesses or has under his control with intent to distribute for pecuniary gain  a prescription legend drug or stramonium preparation in an amount of four or fewer dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the fourth degree;

(3)distributes or  possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of at least five but fewer than 100 dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the third degree.  Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $200,000 may be imposed; or

(4)distributes  or  possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of 100 or more dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the second degree.  Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $300,000 may be imposed.

Notwithstanding the above, a violation of paragraph (1) or (3) of this subsection shall be deemed a de minimis infraction subject to dismissal pursuant to N.J.S. 2C:2-11 if the person demonstrates that the conduct involved no more than six dosage units distributed within a 24-hour period, that the prescription legend drug or stramonium preparation was lawfully prescribed for or administered to that person by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication, and that the person intended for the amount he distributed to be solely for the recipient’s personal use.

b.A person who uses any prescription legend drug or stramonium preparation for a purpose other than treatment of sickness or injury as lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person.

c.A defendant may be convicted for a violation of subsection b.  if the State proves that the defendant manifested symptoms or reactions caused by the use of prescription legend drugs or stramonium preparation.  The State need not prove which specific prescription legend drug or stramonium preparation the defendant used.

d.A person who obtains or attempts to obtain possession of a prescription legend drug or stramonium preparation by forgery or deception is guilty of a crime of the fourth degree.  Nothing in this section shall be deemed to preclude or limit a prosecution for theft as defined in chapter 20 of Title C of the New Jersey Statutes.

e.A person who knowingly possesses, actually or constructively:

(1)a prescription legend drug or stramonium preparation in an amount of  four or fewer dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person; or

(2)a prescription legend drug or stramonium preparation in an amount of  five or more dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the fourth degree.

Notwithstanding the above, a violation of this subsection shall be deemed a de minimis infraction subject to dismissal pursuant to N.J.S. 2C:2-11 if the person demonstrates that he unlawfully received no more than six dosage units within a 24-hour period, that the prescription legend drug or stramonium preparation was lawfully prescribed for or administered to the person from whom he had received it, and that the person possessed the prescription legend drug or stramonium preparation for solely for his personal use.

f.Where the degree of the offense for violation of this section depends on the number of dosage units of the prescription legend drug or stramonium preparation, the number of dosage units involved shall be determined by the trier of fact.  Where the indictment or accusation so provides, the number of dosage units involved in individual acts of distribution or possession with intent to distribute may be aggregated in determining the grade of the offense, whether distribution is to the same person or several persons, provided that each individual act of distribution or possession with intent to distribute was committed within the applicable statute of limitations.

g.Subsections a. and e. of this section shall not apply to: a licensed pharmacy, licensed pharmacist, researcher, wholesaler, distributor, manufacturer, warehouseman or his representative acting within the line and scope of his employment; a physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication; a nurse acting under the direction of a physician; or a common carrier or messenger when transporting such prescription legend drug or stramonium preparation in the same unbroken package in which the prescription legend drug or stramonium preparation was delivered to him for transportation.

L.1999,c.90,s.8; amended 2005, c.205, s.2.

AKA: NJ Criminal Charge 2C:35-10.5, Violation 2C:35-10.5, Offense 2C:35-10.5

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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