Drug Charges in New Jersey – N.J.S.A. 2C:36-2

Whether an adult or a juvenile, being charged with a drug-related offense can feel like one’s world has been turned upside-down. Depending on the severity of the drug charge, a person can face years in prison, substantial fines, and a criminal record that can impact admission to a college or prevent a person from getting a good job.

It is important in situations like this that a person not give up hope. Instead, contact a skilled criminal defense attorney to help avoid or minimize the potential consequences.

Types of Drug Charges in New Jersey

There are a wide variety of drug offenses a person can be charged within NJ. This includes:

  • Drug Possession, which includes having a controlled and dangerous substance (CDS) on one’s person or having “constructive” possession, meaning it can be proven that one owned and had control over the drugs. 
  • Intent to Distribute for having CDS and either trying to sell or successfully selling it to another person.
  • Selling Drugs in a School Zone, should the sale or intended sale take place within 1,000 feet of a property used for school purposes. 

In some cases, a person can be charged with even more serious offenses, such as being the ring-leader of a drug cartel, drug trafficking, and conspiring to sell CDS. Remember, a person can be charged with a drug crime if he/she is found unlawfully possessing:

Penalties and Fines

The penalties for drug offenses depend on the type of charge (Possession vs. Intent to Distribute), the type of drug, and in many cases the quantity in question. The chart below illustrates:

Drug Possession Fines & Penalties

DrugQuantityOffenseMax. SentenceMax. Fine
Marijuana<50 gramsDisorderly persons6 months$1,000
Marijuana50+ grams4th Degree Crime18 months$25,000
All Other Schedule I-IV Drugsn/a3rd Degree Crime5 years$35,000
Any Schedule V Drugn/a4th Degree Crime18 months$25,000

Intent to Distribute Fines & Penalties

DrugQuantityOffenseMax. SentenceMax. Fine
Heroin or Cocaine5+ ounces1st Degree Crime20 years$500,000
Heroin or Cocaine1/2 to 5 ounces2nd Degree Crime10 years$150,000
Heroin or Cocaine< 1/2 ounce3rd Degree Crime5 years$75,000
LSD100+ mg1st Degree Crime20 years$500,000
LSD<100 mg2nd Degree Crime10 years$150,000
Other Schedule I or II Drugs1+ ounce2nd Degree Crime10 years$150,000
Other Schedule I or II Drugs<1 ounce3rd Degree Crime5 years$75,000
Methamphetamine5+ ounces1st Degree Crime20 years$500,000
Methamphetamine1/2 to 5 ounces2nd Degree Crime10 years$150,000
Marijuana25+ pounds1st Degree Crime20 years$300,000
Marijuana5 to 25 pounds2nd Degree Crime10 years$150,000
Marijuana1 ounce to 5 pounds3rd Degree Crime5 years$25,000
Marijuana<1 ounce4th Degree Crime18 months$10,000
Schedule III or IV Drugsn/a3rd Degree Crime5 years$15,000
Schedule V Drugsn/a4th Degree Crime18 months$10,000

Drug Classifications 

New Jersey and other states categorize drugs according to their known or perceived danger. The most serious are categorized as Schedule I, while the least serious (but still requiring regulation) are considered Schedule V. The following are examples of drugs in each category.

Schedule I. These have the highest potential for abuse and no acceptable medical use in the United States.

  • Heroin
  • LSD
  • Marijuana
  • MDMA
  • Psilocybin Mushrooms

Schedule II. Such drugs have a high potential for abuse, but also have accepted (but tightly restricted) medical use in the United States. 

  • Amphetamine (e.g. Adderall)
  • Cocaine
  • Codeine
  • Fentanyl
  • Hydrocodone (e.g. Vicodin)
  • Methadone
  • Methamphetamine
  • Methylphenidate (e.g. Ritalin)
  • Morphine
  • Oxycodone (e.g. OxyContin)

Schedule III. These drugs have greater medical usage and less risk of dependence, but must still be used under strict supervision of a medical professional. 

  • Anabolic Steroids
  • Ketamine
  • Tylenol With Codeine
  • Testosterone

Schedule IV and V drugs include most other prescription drugs with a mild potential for addiction, such as alprazolam (Xanax), acetaminophen, and zolpidem (Ambien). Some drugs containing less than 200mg of codeine and less than 100mg of opium also fall in these categories. 

Unauthorized Prescription Drugs

As noted above, possession of prescription drugs without a valid prescription can lead to serious charges. A person is likely to be charged with a fourth- or third-degree crime, which can lead to up to 5 years in prison upon conviction. 

Distributing prescription drugs—even just handing a Valium to a friend—is also a crime under NJ drug laws.

Case Law Analysis

In State v. Scott, No. A-2143-08T4, the defendant was convicted of possession of cocaine and possession of narcotics paraphernalia. At trial, he objected to the admission of evidence that he had refused to submit to a urinalysis at work after the charges came to his employer’s attention. The Appellate Division of the Superior Court of New Jersey agreed with that argument. They found that the admission of the evidence of the refused urinalysis was a harmful error that introduced legally irrelevant evidence into the trial. The court reversed the conviction and remanded the matter for a new trial
When is a cigar drug paraphernalia? In State in Interest of M.R., No. A-0249-12T2, the Appellate Division of the Superior Court of New Jersey considered the case of M.R., a juvenile who was adjudicated delinquent when the trial judge found that the tobacco cigar found in his car was drug paraphernalia. The Appellate Division reversed that finding. They found that the trial judge’s conclusion was against the weight of the evidence. In short, there was nothing in the State’s case that proved M.R. intended to use the cigar to roll a blunt. The court found that it’s not enough to find that cigars are commonly used to roll marijuana.
In the unusual case of State in Interest of C.F., No. A-0326-18T3, a judge diverted the cases of three juveniles who were charged with marijuana possession. She did so over the prosecutor’s objection, without reviewing the background of the defendants, and without allowing the juveniles to be present at the hearing. The State appealed to the Appellate Division of the Superior Court of New Jersey. That court held that the judge’s attempt to spare the juveniles the disruption associated with attending a court hearing for relatively minor offenses was unlawful. They found that the juveniles had a right to be present at a hearing in which their charges could be diverted and found that the judge was required to consider the background of the defendants and not just the charges when making her decision.
In State v. Heisler, 29 A.3d 320, Mr. Heisler was convicted of a number of drug offenses and appealed to the Appellate Division of the Superior Court of New Jersey. There were a number of live issues on appeal, but one of them was the time limit for objecting to the admission of a laboratory report about the seized drugs proffered by the State. The Appellate Division found that the defendant had 10 days after he had been supplied with all of the laboratory reports in which to object to their admission and request that the State call the author of the reports as a witness. The purpose of the statute was to allow a defendant to make an informed decision about whether or not to challenge the contents of the lab report.
A juvenile entered guilty pleas before a hearing officer for some marijuana-related offenses in State in Interest of DL, No. A–0032–15T4. He was sentenced to a nine-month period of adjustment. When he failed to attend for substance abuse counseling, the period of adjustment was converted to a $60 dollar fine. He argued at sentencing and again on appeal, that because he did not have counsel when he first entered the guilty pleas that the pleas should be struck. The Appellate Division of the Superior Court of New Jersey disagreed. They noted that he was sentenced to a period of adjustment when he was without counsel and, when the fine was imposed, he did have counsel. Therefore, there was no violation of his right to counsel under the U.S. or New Jersey Constitution.

Consequences for a First Offense

First-time drug offenders may hope to get off with little or no jail/prison time. In some cases, this can happen but it is unwise to expect it. Some drug offenses—including third- and fourth-degree crimes—carry a presumption of non-incarceration, which means judges are advised to consider alternatives to incarceration upon conviction.

Unfortunately, there are many factors that can complicate this presumption, including the defendant’s attitude in court, the circumstances of the arrest, and whether other charges have also been filed (e.g. resisting arrest).

First-time drug offenders may also be able to avoid a conviction by enrolling in a diversionary program (see below). These programs are difficult to get into and are not always the best course of action. 

This is why it is always critical to hire an experienced defense attorney if one is facing drug charges. An attorney will be able to examine the facts of the case to determine the strategy with the best chance of avoiding a conviction and/or jail time. 

Consequences for Juveniles

Kids and teens who find themselves in possession of any kind of drug may be in for more trouble than they realize. Juveniles who are convicted of drug offenses risk being sentenced to time in a juvenile detention facility. In addition, the conviction can prevent him/her from getting into a college of choice, render him/her ineligible for certain scholarships, and make it difficult to get a job. 

Even worse, these consequences can carry on well into adulthood. For these reasons and more it is best to hire a skilled attorney to help beat a drug charge or get it reduced to a lesser offense with less severe consequences. 

arrested for drugs

Enrolling in NJ Diversionary Programs

For some defendants, it may be possible to avoid a conviction by enrolling in a diversionary program, such as Pre-Trial Intervention or Conditional Discharge. The purpose of such programs is to rehabilitate without sending a person to jail/prison. Those who successfully complete these programs will have charges against them dropped, potentially avoiding the stigma of a criminal record

The requirements of a diversionary program are established by the court and are customized to the specific defendant. Those who are accepted may be asked to perform community service, undergo drug testing, attend counseling, or report to a probationary officer. 

Enrollment is very limited in any diversionary program, and even well-qualified candidates are often denied admission. An attorney can advise whether it is worth the effort to apply for a diversionary program and, if so, which one. 

Drug Treatment and Drug Court

The last place a victim of substance abuse should be is behind bars. Someone suffering from an addiction should not be treated like a criminal. He/she should be put into a drug treatment program that can help in rehabilitation. 

Diversionary programs like those mentioned can include substance abuse counseling as part of the requirements. However, for some defendants, Drug Court may be a more fitting alternative. 

Unlike PTI or other programs, entering Drug Court requires the applicant to plead guilty to the charges. Drug Court aims to help those whose offenses were motivated by addiction, even if those offenses are not drug-related. While the defendant will have a criminal record, punishment is replaced with rehabilitation, offering an opportunity to break both the cycle of addiction and criminal behavior. 

As with other programs, enrollment is limited. A skilled attorney will know when Drug Court is the best course of action. 

Expunging Drug Offense Convictions

A person who has been convicted of a drug offense may have the option of filing a petition to have the conviction expunged—i.e. cleared from his/her criminal record. This is not a simple process but can be done more easily with the help of a skilled attorney. 

Most drug crimes are indictable offenses (equal to a felony), and a person can only have a record expunged if it has 1 indictable offense (or none), although there are some exceptions. In addition, a person cannot have more than 3 disorderly persons convictions, or 5 disorderly persons convictions if there are no indictable convictions. 

To determine if a record is eligible for expungement, it is best to consult with an attorney with experience filing such petitions. An attorney can help assess eligibility and guide a person on how best to present the facts. If a hearing with a judge is required, the attorney can attend and make oral arguments with the best chance of winning an expungement. 

Frequently Asked Questions

When is a Police Officer Allowed to Search My Car?

As a general rule, an officer will only be allowed to conduct a search if a detached and neutral magistrate/judge issued a warrant that is backed up by probable cause.
However, there is an exception for automobiles. An officer will not need a warrant in order to search your vehicle, only probable cause that contraband will be found inside.
Therefore, whenever an officer believes that there is a fair probability of contraband being found in the car (i.e. he smells it, he notices that you have red eyes, he sees that a passenger looks high, etc.), he can conduct a search of the vehicle for contraband.

If I am a Passenger, Can I Get in Trouble if Drugs are Found?

Yes. Do not think that you can get away with having drugs on you simply because you are a passenger in the car.
Whether you are in the front-seat or back-seat, you can be arrested for drug possession (N.J.S.A. 2C:35-10).
Usually, in a case where there are multiple people in the vehicle and contraband is found, officers will try to ask questions in order to identify the owner or users of the drugs.
If this happens to you, do not admit or deny anything. Whatever you say can be used against you. Make sure to politely tell the officer that you do not want to answer any of his questions and to let him know civilly that you plan on continuing your drive unless he is arresting you.
If you do get arrested, tell every officer that attempts to talk with you that you are invoking your right to an attorney. Then, remain silent, do not answer any of their questions, and avoid saying anything at all.

How are Drugs Classified in New Jersey?

In NJ, drugs are identified based on their risk for abuse. The higher the risk, the more severely they are classified (N.J.S.A. 24:21). The following is NJ’s list of scheduled substances:
Schedule I: Extremely High Risk of Abuse (Heroin, Mescalin, LSD, Payote, Psilocybin)
Schedule II: High Risk of Abuse (Opium, Cocaine, Methadone)
Schedule III: Some Risk of Abuse (Amphetamines, Methamphetamine, Morphine, and Codeine)
Schedule IV: Low Abuse Potential (Barbital and Phenobarbital)
Schedule V: Slightly Lower Abuse Potential (Morphine and Codeine in Low Concentrations)
Possession of a Schedule I, II, III, or IV drug is a third-degree criminal offense that can carry a prison sentence of 3-5 years and a fine of up to $35,000. Possession of a Schedule V drug is a fourth-degree crime that can carry a prison sentence of up to 18 months and a fine of up to $15,000.
Possession of other drugs like Gamma Hydroxybutyrate (i.e. Liquid Ecstasy) is third-degree crime with a possible prison sentence of up to 5 years and a fine of up to $100,000.
The penalties for marijuana possession are directly related to the amount that is found. For more information on the penalties for marijuana possession [N.J.S.A. 2C:35-10a(4)], see our “Marijuana Laws in NJ” page.

If the Officer Asks to Search My Car, Do I Have to Let Him?

No. We cannot stress this enough, do not consent to a search of your vehicle!
Consenting to a search gives the officer permission to search even if he did not have probable cause to do so.
In other words, you are giving him the authority to do something that the law would not normally allow him to do. Most importantly, anything he finds can be used against you.
Some drivers worry that failing to give consent translates into the officer believing that you have something to hide. However, denying consent alone is not enough for an officer to have probable cause to search and a lack of consent cannot be used to prove guilt.

If the Officer Asks Me to Get Out of the Car, What Should I Do?

In this case, you have to listen to the officer. The Supreme Court of the United States has decided cases dealing with this exact issue. According to the way these opinions have been interpreted, you almost always have to step outside of the vehicle.
However, this does not mean that the officer can search or seize anything in your car. Therefore, it is recommended that you abide by the following procedure when faced with this situation:
Vocalize Compliance
Turn Your Car Off and Take the Keys Out of the Ignition
Remove Your Safety Belt and Exit the Vehicle
Close and Lock the Doors Behind You
Doing this will protect your car from being unlawfully searched and will allow you to remain in control of who has access to your car.
Remember, once you are out of the vehicle the officer has a legal right to pat you down if he believes you are armed and dangerous. The law gives him that right in order to protect his safety. Therefore, if he begins patting you down, stay calm and do not resist.

Who Should I Contact?

Do not take chances. If you or a loved one was charged with a drug-related offense in New Jersey, contact the attorneys of Rosenblum Law today. Our skilled criminal defense attorneys have helped people in similar situations. We can defend your constitutional rights, fight to keep you out of jail and do what he can to have your drug charges dismissed. Call us today at 888-815-3649.

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