Elizabeth, NJ Drug Charges Attorney

It is unlawful for any person, knowingly or purposely, to obtain, possess, actually, or constructively, a controlled dangerous substance or controlled substance analog unless pursuant to NJSA 2C:35-10. If you or a loved one is facing a possession charge or a drug use charge in New Jersey, it is wise to seek legal representation as soon as possible. A possession or use of drug charge can be accompanied by drug distribution, possession of cocaine, or opioid possession. If you or a loved one is facing NJSA 2C:35-10, possession, use or under the influence of a controlled dangerous substance (CDS), Attorney Brett M. Rosen is an excellent choice. Here’s why:

1. Experience: Brett M. Rosen is a seasoned lawyer, licensed in both New York and New Jersey. He has been practicing law for over 8 years, specializing in criminal and civil litigation.
2. Client Satisfaction: Rosen has received high praise from his clients for his professionalism and effectiveness. Clients have described him as “the example of a true winner” and “one of NJ’s finest attorneys”.
3. Trial Skills: Rosen has demonstrated exceptional trial skills, standing ‘toe to toe’ at trial against current and former prosecutors, and certified criminal and civil trial attorneys. His aggressive questioning and thorough approach have been commended by clients.
4. High-Profile Cases: Rosen has handled high-profile cases, including representing a celebrity on their domestic violence case and a Grammy-Award winning artist on their drug cases.
5. Recognition: He has been recognized as a Rising Star by Super Lawyers.

If you or a loved one is facing a possession of CDS charge in New Jersey, it is important that legal assistance is sought. Contact our criminal justice law firm today to discuss your potential 2C:35-10 case.

Definition of Possession, Use or Under Influence of CDS in New Jersey

A possession, use or under the influence of a controlled dangerous substance (CDS) is codified under NJSA 2C:35-10. Under NJSA 2C:35-10a, possession, use or under the influence of a drug is defined as: 

1. 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 from a practitioner, while acting in the course of his professional practice.

CDS, or drugs, are categorized into classes. They are classified as scheduled I, II, III, IV, or V. Schedule I drugs in New Jersey are considered highly addictive and provide little to no medical use or medical benefits.  

The typical schedule I drugs that most people facing drug charges are:

• Hydroxypethidine
• Morpheridine
• Codeine methylbromide
• Codeine-N-Oxide
• Heroin
• Morphine methylbromide
• Morphine methylsulfonate
• Morphine-N-Oxide
• Amphetamine
• Peyote
• Psilocybin

Marijuana used to be a scheduled I drug. However, New Jersey legalized marijuana in 2021. Since legalizing marijuana in 2021 it is no longer considered a scheduled I drug. 

Schedule II drugs are considered highly addictive but do provide some medical use. The typical schedule II drugs that people in New Jersey face are the following:

• Opium and opiate
• Opium poppy and poppy straw
• Fentanyl
• Methadone
• Coca leaves
• Cocaine

Schedule III drugs are considered less addictive than schedule I & II and have accepted use in the medical field. Schedule III drugs that are most charged in New Jersey are the following:

• Amphetamine
• Methamphetamine
• Ketamine hydrochloride

As you can see, New Jersey prioritizes certain drugs based on their addictiveness and the medical use it has for society. If you or a loved one are facing cocaine, heroin, meth, or any drug charge in New Jersey, contact our office for a consultation to discuss. 

Failure to Make Lawful Disposition 2C:35-10c Charge in NJ

A failure to make a lawful disposition (2C:35-10c) of a drug can lead to a criminal charge. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of NJSA 2C:35-10 and fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense.

A disorderly persons charge carries a maximum penalty of six (6) months in the county jail. It also carries a fine of up to $1,000. If convicted of a failure to make lawful disposition charge you will have a criminal record. 

Penalties for Possession, Use, or Under Influence of CDS in New Jersey

As stated above, drugs are classified into schedule I, II, III, IV, etc. Depending on the drug and the classification, a defendant could face anywhere between six (6) months in jail to years in prison, a fine, community service, loss of license, and a criminal record. The penalties for a drug charges are explained below. 

Controlled Dangerous Substances (Schedules I, II, III, or IV)

Violation with respect to a controlled dangerous substance (or its analog) classified in Schedules I, II, III, or IV  is a crime of the third degree. A third degree carries:

• A minimum of three (3) years and a maximum of five (5) years in prison
• Typically a third degree crime carries a fine of up to $15,000. However, a fine of up to $35,000 may be imposed.

Controlled Dangerous Substances (Schedule V)

Possession of a controlled dangerous substance (or its analog) classified in Schedule V is a crime of the fourth degree. A fourth degree carries: 

• A maximum of eighteen (18) months in prison
• A fourth degree crime typically carries a fine of up to $10,000. Despite this, a fine of up to $15,000 may be imposed.

Marijuana Possession (Effective Date of P.L.2021, c.19)

Prior to the legalization of marijuana in 2021 (P.L.2021, c.19) possession of:

• More than 50 grams of marijuana, including any adulterants or dilutants, is a crime of the fourth degree.
• A fine of up to $25,000 may be imposed.

On and after the effective date of legalizing marijuana (P.L.2021, c.19), possession of:

• More than six ounces of marijuana, including any adulterants or dilutants, is a crime of the fourth degree.
• A fine of up to $25,000 may be imposed.

Prior to marijuana legalization, the smell of marijuana (burnt or unburnt) gave a police officer probable cause. Now, the odor of marijuana or hashish shall not constitute probable cause for initiating a search of a person for marijuana possession.

Immigration Consequences of Possession/Use Drug Charge in New Jersey

There may be possible immigration consequences with a New Jersey charge of 2C:35-10, depending on the type and severity of the offense, and the immigration status of the person charged. The immigration consequences of selected New Jersey criminal offenses, a conviction for possession, use or being under the influence, or failure to make lawful disposition of a controlled dangerous substance or controlled substance analog under 2C:35-10 may be considered:

• An aggravated felony (AF) if the offense involves trafficking or a term of imprisonment of at least one year.
• A crime involving moral turpitude (CIMT) if the offense involves fraud, deceit, or intent to harm.
• A controlled substance offense (CSO) if the offense involves any federally controlled substance, except for a single offense of simple possession of 30 grams or less of marijuana.

These categories of offenses may trigger deportability or inadmissibility for non-citizens, and may affect their eligibility for relief or waivers from removal. Therefore, it is important to consult a qualified immigration attorney before pleading guilty or accepting a plea bargain for any charge under 2C:35-10. A criminal defense lawyer may also be able to negotiate a plea to a lesser offense that does not have negative immigration consequences, such as a disorderly persons offense or a municipal ordinance violation. Contact our office today to discuss your possession of cocaine, meth, heroin or any drug charge here in New Jersey.

Defenses to New Jersey 2C:35-10 Drug Use or Possession Charge

There are potential defenses available to you or your loved one charged with possession, use, or under the influence of CDS (drugs). However, each defense may not fit based on the facts of a case. Some defenses that may apply to your drug charge case are the following:

• Valid Prescription: The substance was obtained directly or pursuant to a valid prescription or order from a practitioner while acting in the course of their professional practice. The possession is otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.)1.
• Unlawful search and seizure: This means that the police violated your constitutional rights by searching your person, vehicle, or property without a warrant or your consent, and found the drugs as a result.
• Lack of knowledge or intent: This means that you did not know that the substance was a CDS, or that you did not intend to possess, use, or be under the influence of it. For example, if someone else planted the drugs on you, or if you accidentally ingested them.
• Entrapment: This means that the police induced you to commit the crime that you would not have otherwise done, by using coercion, threats, or deception.
• Chain of custody: This means that the evidence (the drugs) was not properly handled, stored, or tested by the police, and therefore may have been tampered with, contaminated, or misidentified.
• Affirmative defense: This means that you admit to possessing the drugs, but you have a valid reason for doing so, such as acting in an emergency, cooperating with law enforcement, or being a victim of domestic violence.

These are just some defenses that may be applicable to your New Jersey drug charge. However, there are other programs that might be available. 

Drug/Recovery Court

Drug/recovery court is a special court program that targets non-violent offenders who have substance abuse problems. The program aims to help them overcome their addiction and avoid prison by providing them with intensive treatment, supervision, and support.

To be eligible for drug/recovery court, the offender must meet certain criteria, such as having no prior convictions or pending charges for violent crimes, having a clinical diagnosis of substance dependence, and being willing to participate in the program.

The drug/recovery court program consists of four phases, each with different requirements and goals. The phases are:

• Phase 1: Orientation and Stabilization. The offender must attend court hearings, treatment sessions, and drug tests regularly, and follow the rules and conditions set by the judge and the treatment team. The duration of this phase is usually 3 to 6 months.
• Phase 2: Early Recovery. The offender must continue to comply with the court and treatment requirements, and start working on their education, employment, and life skills. The duration of this phase is usually 6 to 9 months.
• Phase 3: Maintenance. The offender must maintain their sobriety and progress, and participate in community service, mentoring, or other pro-social activities. The duration of this phase is usually 9 to 12 months.
• Phase 4: Community Reintegration. The offender must prepare for graduation from the program, and demonstrate their readiness to live a productive and responsible life without drugs or crime. The duration of this phase is usually 12 to 15 months.

The drug/recovery court program is not easy, and the offender must face many challenges and consequences along the way. However, if the offender successfully completes the program, they can benefit from reduced or dismissed charges, improved health and well-being, and increased opportunities for education and employment.

Pre-Trial Intervention & Conditional Discharge

Pretrial intervention (PTI) and conditional discharge are two diversionary programs that can help you avoid a criminal conviction if you are charged with a drug crime in New Jersey. However, they have different eligibility criteria and conditions.

PTI is available for more serious crimes, also known as indictable offenses, that are handled in the county superior court. PTI can last up to 36 months and requires you to pay certain mandatory penalties, fees, fines, and restitution. You might also have to undergo random drug testing, community service, counseling, or treatment. If you complete PTI successfully, the charges will be dismissed and you will not have a criminal record.

Conditional discharge is available for minor drug crimes, also known as disorderly persons offenses, that are handled in the municipal court. Conditional discharge can last up to 12 months and requires you to pay a $75 application fee and a $50 VCCO penalty. You might also have to undergo random drug testing, community service, counseling, or treatment. If you complete conditional discharge successfully, the charges will be dismissed and you will not have a criminal record.

You can only apply for one of these programs once in your lifetime. If you have a prior conditional discharge for a marijuana-related offense, you might still be eligible for PTI, depending on the circumstances. You should consult with an attorney before applying for either program, as they might affect your future rights and opportunities. Contact our office today to discuss your or your loved one’s drug charges here in New Jersey. 

Veterans Diversionary Program

A veteran might be eligible for the Veterans Diversion Program (VDP) in New Jersey if they are charged with a drug crime, depending on the severity of the offense and their mental health condition. The VDP is a statewide program that allows eligible service members who suffer from mental illness to avoid a criminal conviction by completing certain requirements, such as counseling, treatment, or community service. The VDP is similar to other diversionary programs, such as Pre-trial Intervention (PTI) and Drug Court.

To apply for the VDP, a veteran must be charged with a non-violent petty disorderly persons offense, a disorderly persons offense, or a crime of the third- or fourth-degree. They must also have a mental illness that is related to their military service or that interferes with their ability to function in society. The prosecutor decides who is admitted into the program, and the judge determines the length and conditions of the program, which can last up to two years.

If a veteran successfully completes the VDP, the charges will be dismissed and the case will be expunged, meaning that they will not have a criminal record. However, a veteran can only apply for the VDP once in their lifetime, and they must consult with an attorney before doing so, as the program might affect their future rights and opportunities. Contact our office today for a consultation regarding your drug charges in New Jersey. 

Statute of Limitations

New Jersey Revised Statutes, law 2C:35-10 is about possession, use or being under the influence, or failure to make lawful disposition of a controlled dangerous substance or controlled substance analog. The statute of limitations for this law depends on the degree of the offense and the type of substance involved. 

Generally, a prosecution for a crime must be commenced within five (5) years after it is committed, and a prosecution for a disorderly persons offense or petty disorderly persons offense must be commenced within one (1) year after it is committed. However, there may be some exceptions or extensions to these time limits depending on the circumstances of the case. Therefore, it is advisable to consult a lawyer for specific legal advice on this matter. If you or a loved one is facing a cocaine, meth, heroin, fentanyl or any drug charge here in New Jersey, call our office for a consultation today.

Frequently Asked Questions (FAQs) 

• Question: Can my license be suspended for a drug charge in New Jersey?
  • Answer: In New Jersey, if you are convicted of a drug offense, such as possession of a controlled dangerous substance (CDS), there is a mandatory license suspension. The suspension period can range from six months to two years. However, the court may decide not to impose a suspension if it finds that there are compelling circumstances warranting an exception, such as extreme hardship due to the lack of alternative transportation means.

• Question: Can I expunge my New Jersey drug conviction?
  • Answer: There’s a good chance you can expunge your New Jersey drug conviction, but it depends on some specifics. Here’s what to consider:
    

    • Type of Conviction: New Jersey allows expungement for some drug offenses, including cocaine possession.

    • Waiting Period: Generally, it’s five years after completing your sentence (including probation/parole) to apply. Exceptions might allow a shorter wait.

    • Clean Record (mostly): You ideally shouldn’t have other convictions besides the one you want expunged. Minor offenses may be permissible.

    • Fees and Fines Settled: All fines and fees from the original drug charge must be paid.

• Question: Will a New Jersey drug charge conviction leave me with a criminal record?

  • Answer: Yes, a New Jersey drug charge conviction will likely leave you with a criminal record, but there are some possibilities for expungement.

    • Expungement: New Jersey law allows expungement of certain drug convictions under specific circumstances. This process essentially seals the record, making it invisible to most background checks.

     

• Question: Can I be charged with possession of marijuana in New Jersey even though it’s legalized there?
  • Answer: Yes, you can still be charged with marijuana possession in New Jersey under certain circumstances. Here’s the breakdown of the law:
    

    • Adults 21 and over can possess up to 6 ounces of marijuana without facing criminal charges.

    • Possession of more than 6 ounces is a crime, with penalties including fines up to $25,000 and potential jail time.

    • There are additional restrictions on where you can possess marijuana, such as within 1,000 feet of a school.

     

• Question: If a New Jersey cop smells marijuana in my car, does that still give him probable cause to initiate a search without my consent? 
  • Answer: No, in New Jersey, the odor of marijuana alone is not enough for probable cause to search your car since 2021. This applies to both burnt and raw marijuana.

Top-Shelf Drug Charge Attorney in New Jersey 

If you are looking for a top-shelf drug charge attorney in New Jersey, then you have come to the right place. There are many reasons why you should choose New Jersey criminal justice attorney Brett M Rosen for your drug charges. Here are some of them:

• He is a passionate and dedicated lawyer who believes in standing up for the rights of his clients, even if they are accused of serious crimes.
• He has been recognized as one of the top criminal defense attorneys of 2023 by the National Trial Lawyers Association. He has also been selected to Thomson Reuters Super Lawyers Rising Stars list for five consecutive years, a recognition that only 2.5% of attorneys in New Jersey receive.
• He has a proven track record of winning seemingly impossible cases, such as securing a not-guilty verdict for a karate instructor accused of sexual assault by an 11-year-old student. He uses a strategic approach to cross-examination, storytelling, and evidence presentation to persuade the jury and the judge.
• He has extensive experience in handling drug-related cases, such as possession, distribution, and trafficking of controlled substances. He knows the nuances of the New Jersey law 2C:35-10 and the possible immigration consequences of a conviction. He can negotiate a plea to a lesser offense or seek a dismissal of the charges, depending on the circumstances of your case.
• He is also a skilled personal injury lawyer who can help you recover compensation for any injuries or damages caused by someone else’s negligence or wrongdoing. He has settled close to $1 million of personal injury cases within three months.

If you are facing drug charges in New Jersey, you need a lawyer who can fight for your rights and your future. Brett M Rosen is the lawyer you need. Contact him today for a free consultation.