New Jersey Statutes 2C:35-10: Third Degree Possession of Controlled Dangerous Substances (CDS)

1. Definitions and Elements of the Crime

Any person who obtains or possesses any of the drugs classified as Controlled Dangerous Substances (CDS), without a valid prescription from a licensed practitioner acting in the course of a professional practice - with some exceptions listed in P.L.1970, c.226 (C.24:21-1 et seq.) - if charged a person can be guilty of a crime in the third degree of Possession, Distribution of a Controlled Dangerous Substance, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

Monmouth, Ocean, Middlesex, Mercer and Essex County drug possession lawyer Tara Breslow is extremely familiar with New Jersey statutes within NJSA 2C:35-10 which detail this crime and punishment with the following elements:

1. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of a CDS - or its analog - classified in Schedules I - IV is guilty of a third degree crime - a fine of up to $35,000.00 may be imposed;

2. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of a CDS - or its analog - classified in Schedule V, is guilty of a fourth degree crime: a fine of up to $15,000.00 may be imposed.

3. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of more than 50 grams of marijuana or more than five grams of hashish - including adulterants or dilutants - is guilty of a fourth degree crime: a fine of up to $25,000.00 may be imposed.

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.

2. Special Circumstances: Schools Zone

The penalties for Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of a Controlled Dangerous Substance escalate when the offense is committed within 1,000 feet of a school property or school bus, or “on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board.” Whether or not a person convicted of drug charges near a school is sentenced to prison, there is a mandatory requirement of not less than 100 hours of community service.

Additionally, you could be subject to penalties under the Brimage Guidelines, which could mean a mandatory time in jail, even if this is your first offense.

3. Related Offenses: Disorderly Person and Manifesting Symptoms of Taking CDS Illegally

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.

Some CDS arrests and convictions can happen without physical proof of possessing or taking the scheduled drugs, if it can be proved “that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.”

If you are in possession of a Controlled Dangerous Substance, it is a disorderly persons violation to fail to “voluntarily deliver the substance to the nearest law enforcement officer.”

4. Defenses to Third Degree Possession of CDS

Police officers are human and often make mistakes. They make mistakes and sometimes these mistakes can lead to a reduction of charges - or dropping of all charges. It is imperative that an experienced attorney review all reports.

A Monmouth, Ocean, Mercer, Bergen and Middlesex County attorney experienced in drug possession cases, Tara Breslow will demand the arresting officers produce in court all evidence against you. And also demand a careful timeline of the obtaining, examining, testing and storage of this evidence.

Some possible issues an experienced attorney will bring up include:

1. Lack of probable cause to arrest
2. Lack of reasonable suspicion to stop your car
3. No probable cause to ask for consent to search vehicle
4. Arresting officer does not explain accused’s right to refuse consent to search
5. Accused does not voluntarily grant consent to search
6. No actual or constructive possession. That can mean being in the same car with someone possessing drugs, but not having knowledge of the possession, or control of the drugs.
7. Exoneration by co-defendant
8. Lab testing of CDS challenged
9. Lack of a legal warrant to search
10. No “exigency” exception to warrant requirement

There are other tactics that can be used based on the facts of the case. Also, New Jersey has diversionary programs for some first-time offenders. Once option could be Pre-Trial Intervention or a Conditional Discharge.

Tara Breslow is an experienced New Jersey lawyer who has handled these matters for more than two decades, and you want her by your side when faced with this process and to be sure your rights are protected.

5. Penalties

Possession of a controlled substance charges in New Jersey are graded according to a “schedule.” There are five levels of Controlled Dangerous Substances from I to V based on their potential for abuse, medical use and other factors.

For example, Schedule I drugs have a higher potential for abuse and no acceptable medical use in treatment in the United States. Schedule 1 drugs coincide with the most serious offenses and includes both hallucinogens and narcotics, including Marijuana, hashish, heroin, LSD, acid, MDMA, synthetic marijuana and psilocybin mushrooms.

Possession of any CDS from Schedule 1 - V - other than marijuana and hashish- is a felony crime in the third degree. Most common drugs in New Jersey court cases includes cocaine, heroin, oxycontin, and ecstasy.

Third degree felonies are punishable by 3-5 years in prison and a fine of up to $35,000. For first time offenders there is a presumption of non-imprisonment with eligibility to Drug Diversion and other programs. There is a mandatory six month suspension of driving privileges regardless of where the possession took place.

6. Criminal Defense for Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of Controlled Dangerous Substances

Being accused of Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of Controlled Dangerous Substances is a serious charge that can have substantial consequences including jail time, fines and a permanent record.

In certain cases, just being in proximity to these drugs can result in charges and the accompanying stress or legal representation and court time.

If you are charged with Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition it is vitally important you have an experienced and talented defense attorney by your side.

Monmouth, Ocean, Middlesex, Mercer, Bergen and Essex County drug possession attorney Tara Breslow-Testa has more than two decades of experience who can fight allegations related to CDS charges.

Tara Breslow knows how to stand up to aggressive Prosecutors and speak to judges. Often times there are weaknesses in the State’s case, such as a questionable search and seizure. It might be advantageous to file a Motion to Suppress and other related legal motions.

For a free consultation regarding about Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition of CDS, contact Tara Breslow-Testa at (732) 784-2880.

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