Possession of a Controlled Substance in New Jersey

New Jersey continues to be in the midst of an ongoing problem with drug abuse. The Attorney General's Office says that drug-related overdose fatalities are roughly four times more prevalent than 10 years ago. In 2018, the total number of deaths was 3,163. The New Jersey Department of Health reported that approximately 82,644 people in the state were admitted to a drug treatment program.

New Jersey[i]

2014

2015

2016

Possession Arrests

5,687

4,490

5,308

Drug Abuse Arrests

323

325

345

Legislative Intent: Drug Enforcement

The New Jersey Legislature acknowledged that although there has been significant action from state and local law enforcement, the illegal usage, manufacturing, and distributing of drugs continues to be problematic across the state. There continues to be an overwhelming amount of drug-related criminal activity such as trafficking. Drug-related crimes often involve violence such as robbery, physical assault, and murder.

Lawmakers have found that the current criminal sentencing provisions for drug offenses are “inadequate.” They completed a reassessment of laws relating to controlled substances and drafted the New Jersey Controlled Dangerous Substances Act. These actions have led to the increasingly aggressive prosecution of drug-related offenses. For these purposes, it is important to make the distinction between possession and possession with intent to deliver.

Enhanced Penalties for Certain Drugs (2C:35-5.11)

Those convicted of possessing, distributing, or dispensing methylenedioxymethamphetamine (Ecstasy), gamma-hydroxybutyrate (GHB), or flunitrazepam (Rohypnol), are subject to penalties that are twice the standard. Having possession of these substances will result in charges of a third-degree offense.

Toxic Chemicals (2C:35-10.4)

Another category of dangerous substances is those capable of generating toxic fumes. These include acetone, acetate, isopropyl alcohol, nitrous oxide, methyl ethyl ketone, and others. These substances are known to be abused resulting in intoxication, inebriation, and depression of the nervous system. It is a disorderly person offense to inhale fumes from these substances or to possess with intent to abuse them.

Possession or Use of Controlled Dangerous Substances (2C:35-10)

It is against the law to possess drugs classified as Schedule I, II, III, or IV without a valid prescription from a licensed medical practitioner. These crimes are charged as third-degree offenses and a fine may be imposed of up to $35,000. Having possession of a Schedule V drug without a valid prescription from a licensed medical practitioner is a fourth-degree offense and a fine of up to $15,000 may be imposed.

Possession of marijuana in a quantity of 50 grams or more or five or more grams of hashish is a crime of the fourth degree and a fine of up to $25,000 may be imposed. Having possession of marijuana in a quantity of fewer than 50 grams or less than five grams of hashish is a disorderly person offense. Those who possess a controlled substance on the property of a school or within 1,000 of a school bus may also be ordered to perform 100 or more hours of community service. 

If an individual obtains possession of a controlled dangerous substance they are required to promptly deliver it to the local agency of law enforcement. Failing to do so may result in being charged with a disorderly person offense.

Being Under the Influence

It is also unlawful to be under the influence of controlled dangerous substances unless prescribed by a licensed medical practitioner. These crimes are charged as a disorderly person offense. To prove these offenses it is not required to prove the individual abused a particular substance. The prosecution simply must prove that the individual demonstrated “physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance.”

Possession of an Imitation Controlled Substance (2C:35-11)

Drug possession charges may be brought against those who possess a substance that they express or imply is a controlled dangerous substance. This applies when the substance resembles the appearance of a controlled dangerous substance or if a “reasonable person” would believe that it was. These violations are charged as a third-degree offense; however, the fines may be increased up to $200,000. These charges may apply as follows:

  • The packaging of the substance resembles that of a controlled dangerous substance
  • The substance itself closely resembles a controlled dangerous substance
  • The substance is sold or otherwise exchanged for something of value as a dangerous controlled substance would be

Possible Drug and Alcohol Rehabilitation (2C:35-14)

The court may consider alternative sentencing that involves a special probationary period where the offender enters a drug or alcohol rehabilitation program. The offender will first have a professional assessment to determine if they would benefit from treatment for drugs and/or alcohol based on their dependency. This is generally appropriate for those who were intoxicated at the time the offense was committed or when the offense involved obtaining something of value in order to procure drugs and/or alcohol. 

Those who committed an offense using a firearm are not eligible for this option. Offenders who are convicted of murder, manslaughter, aggravated assault, sexual assault, and similar violent offenses are not eligible. This treatment option is not appropriate for anyone deemed to be a “danger to the community.”

The treatment program must be properly licensed and approved by the Department of Human Services. The courts may form their decisions by considering all of the evidence and witness testimony. Other considerations include the results of presentence reports and professional assessments regarding the offender's drug and/or alcohol dependence. During the treatment program, the offender is subject to periodic testing for the usage of drugs and/or alcohol.

Others who are not eligible for this treatment option include:

  • Those charged with a first-degree offense or certain violent second-degree offenses
  • Crimes that have a mandatory minimum prison sentence
  • The offense involved drug distribution or a conspiracy to distribute on or in proximity to a school

The treatment program must entail a minimum of a six-month commitment. The offender will be subject to community supervision through the probation department. Any attempt to avoid submitting to a test for detecting the use of drugs and/or alcohol will be reported to the court. When the offender is found to have violated the terms and conditions of their treatment program or probation, the court may revoke the special probation. The court may then revert to prosecuting the offender for the original charges. 

Standard Penalties for Offenses in New Jersey 

Offense Level

Incarceration Period

Maximum Fine

First Degree

10 to 20 years

Up to $200,000

Second Degree

5 to 10 years

Up to $150,000

Third Degree

3 to 5 years

Up to $15,000

Fourth Degree

18 months

Up to $10,000

Disorderly Person Offense

6 months

Up to $1,000

Criminal Defense Attorney for Allegations of Drug Possession

Those charged with abusing or knowingly having possession of dangerous controlled substances may face serious criminal charges. Attorney Joseph D. Lento has a firm understanding of the many strategies that can be employed to effectively defend against the allegations. Contact the office today for a complimentary case evaluation at (888) 535-3686. 


[i] https://www.state.nj.us/health/populationhealth/opioid/opioid_ucr.shtml

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