A person caught selling drugs in NJ will most likely be charged with Drug Distribution [N.J.S.A. 2C:35-5]. A person caught selling drugs close to a school can be charged with N.J.S.A. 2C:35-7 (Selling Drugs on or Near School Grounds) which is a much more serious offense.
A distribution charge should be taken very seriously and includes many circumstances most are unaware of. For example, in New Jersey, a person can be convicted of distribution if the authorities simply find a large quantity of drugs in his/her possession. This means that the police do not even need to have actual, concrete evidence of the transaction and distribution before one can be charged. Circumstantial evidence will suffice.
What is “Intent” to Sell Drugs in NJ
N.J.S.A. 2C:35-5 states “it shall be unlawful for any person knowingly or purposely […] to create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.”
The law does not explicitly outline what constitutes an “intent.” Police may prove intent by witnessing the exchange of both drugs for cash or other items of value. An undercover officer or informant can also be used to elicit an admission of intent. In other cases, the sheer volume of drugs may be sufficient to prove intent if the amount in one’s possession far exceeds the usual amount for personal consumption. Another way police can prove intent is to show that two people were talking on the street, one was found with illicit substances and the other was found with a fairly large sum of cash. In this situation, although no direct evidence of a transfer exists, the surrounding circumstances are sturdy enough to bring charges against either (or both) parties for violating N.J.S.A. 2C:35-5.
What Are the Penalties for Selling Drugs or Intent to Sell Drugs in NJ?
From a penalty standpoint, there is no distinction between actually selling drugs and possession with intent to distribute in NJ. The type of punishment a person can face in for either depends on the type of drug in question and how much he/she is accused of selling as the chart below explains.
|Drug||Quantity||Offense||Max. Sentence||Max. Fine|
|Heroin or Cocaine||5+ ounces||1st Degree Crime||20 years||$500,000|
|Heroin or Cocaine||1/2 to 5 ounces||2nd Degree Crime||10 years||$150,000|
|Heroin or Cocaine||< 1/2 ounce||3rd Degree Crime||5 years||$75,000|
|LSD||100+ mg||1st Degree Crime||20 years||$500,000|
|LSD||<100 mg||2nd Degree Crime||10 years||$150,000|
|Other Schedule I or II Drugs||1+ ounce||2nd Degree Crime||10 years||$150,000|
|Other Schedule I or II Drugs||<1 ounce||3rd Degree Crime||5 years||$75,000|
|Methamphetamine||5+ ounces||1st Degree Crime||20 years||$500,000|
|Methamphetamine||1/2 to 5 ounces||2nd Degree Crime||10 years||$150,000|
|Marijuana||25+ pounds||1st Degree Crime||20 years||$300,000|
|Marijuana||5 to 25 pounds||2nd Degree Crime||10 years||$150,000|
|Marijuana||1 ounce to 5 pounds||3rd Degree Crime||5 years||$25,000|
|Marijuana||<1 ounce||4th Degree Crime||18 months|
|Schedule III or IV Drugs||n/a||3rd Degree Crime||5 years||$15,000|
|Schedule V Drugs||n/a||4th Degree Crime||18 months||$10,000|
Defenses to Selling Drugs or Intent to Sell Drugs in New Jersey
Defeating a charge of selling drugs in New Jersey can be difficult and complicated depending on the circumstances. In many cases, it depends on what evidence is being used to accuse a person of selling or intending to sell drugs. For example, the police may argue that a person who has drugs packaged in multiple small containers with quantities has done so with the intent to distribute them to multiple individuals. Other times, the presence of equipment for weighing and packaging drugs can prove one’s intent to sell. Even the presence of large amounts of cash can be presented in court as evidence of past sales.
In many of the above-mentioned situations, it may be possible to get a charge dropped if an attorney can prove that the search and seizure of evidence were improper or illegal. It may also be possible to prevent the prosecution from proving that it was the defendant who had or had intended to distribute the drugs. The exact defense will depend on the specific facts of the case. Sometimes the most effective strategy is to negotiate with prosecutors to reduce the charge to a less severe offense with little or no jail time.
The defendant in State v. Morrison, 902 A. 2d 860, was acquitted of charges of distribution and strict liability for drug-induced death after prosecutors failed to prove that the defendant solely possessed and therefore distributed the heroin in question. In the case, two men, Mr. Morrison and Mr. Shore, purchased heroin from a dealer. Mr. Morrison, the defendant, then gave half to Mr. Shore, who later died of a drug overdose. The defense argued that Mr. Shore contributed some money to the total amount used to purchase the drugs. Likewise, Mr. Shore was present with Mr. Morrison for the original purchase. As such, the court ruled that because Mr. Shore had constructive possession of the heroin, Mr. Morrison could have “distributed” it to him.
The Use of Informants
One way that police officers can catch a person selling drugs is through the use of a confidential informant. A confidential informant (CI) is a person who the police use to contact those who they suspect of selling or distributing drugs. The CI will then attempt to get the suspect to sell him/her drugs. The CI’s actions are often recorded and witnessed by law enforcement officers. If the CI is successful, the suspect will be arrested. Moreover, this incident will then be used as evidence against him/her when the prosecution is making its case.
What Do I Do if the Police Confront Me About Selling Drugs?
A person who is confronted by police on the street about selling or possession with intent to sell drugs needs to be careful. For starters, do not run away! Those who run are considered a “fleeing suspect,” which means police officers will be given extra discretion to act in ways that normally would require a warrant and probable cause. Stay put and be polite. It is also acceptable to tell the police that one wishes to walk away.
Remember, the law does not require a person to answer questions or to remain in the presence of police unless he/she is under arrest. Most importantly, a person who is worried about being implicated or incriminated by answering the questions is allowed to politely and diplomatically refuse to answer. If they do arrest a person, he/she has a constitutional right to an attorney and the right to remain silent! Do not be intimidated by the police. Anyone charged with a crime must invoke their constitutional rights and hire an experienced NJ criminal defense attorney.
First Offense of Selling or Intent to Sell Drugs in NJ
The penalties for selling or intending to sell drugs in NJ are not diminished by the fact that it may be a person’s first (or only) offense. That doesn’t mean it isn’t possible for a judge to be more lenient on someone who is a first-time offender, only that it shouldn’t be expected. A first-time charge of selling drugs can still result in being sent to jail/prison. The good news is that a first-time offender may also be eligible for a diversionary program, depending on the level of charge and other circumstances (see below).
Juveniles Selling Drugs in NJ
While most of the time judges in Family Court understand that a juvenile accused of a crime is still a child, selling drugs is a very serious offense. As such, a judge is less likely to be as lenient in sentencing a juvenile for selling drugs as he/she would for other, less serious crimes (such as shoplifting). A juvenile accused of selling drugs in New Jersey urgently needs the help of a skilled defense attorney to help minimize the possible penalties. Unlike with adults, there is a greater chance that a juvenile can get acquitted by arguing that the defendant did not knowingly or willfully possess and/or distribute drugs. However, this will have to be supported by the facts.
Diversionary Programs for Selling Drugs or Possession with Intent to Sell Drugs in New Jersey
A person can sometimes avoid a conviction for selling drugs in New Jersey by entering a diversionary program, such as Pre-Trial Intervention (PTI) or Conditional Discharge. There are strict conditions that one must meet in order to be considered eligible for a diversionary program, and even then not all who apply are accepted. With some exceptions, the person must have no prior convictions and cannot be on probation or parole. Each diversionary program is customized for the individual based on the offense and his/her needs and may include such things as counseling, community service, probation, and drug testing. Those who successfully complete such programs have the charges against them dropped, which can avoid having a permanent criminal record.
Is Drug Court an Option with a Charge of Selling or Intent to Sell Drugs in NJ?
If a person was motivated to try to sell drugs in an effort to fund a drug addiction, this can be grounds for entering drug court. In New Jersey, drug court is a specialized probation for those whose crimes are motivated by addiction. Drug court offers an alternative to prison for those who have been struggling with drug or alcohol dependency. In many ways, drug court operates like a diversionary program (see above), but with an emphasis on addiction rehabilitation, detoxification, and drug testing. Unlike PTI or other diversionary programs, drug court requires the individual to plead guilty, thus ensuring he/she will have a criminal record. However, the program is designed to keep the defendant out of jail and get him/her the help needed to break the cycle of addiction and crime.
Can A Conviction for Selling or Intent to Sell Drugs in NJ be Expunged?
Some convictions for selling drugs or possession with intent to sell drugs in NJ are eligible for expungement. NJ allows a person to clear a criminal record that contains a third- or fourth-degree indictable drug offense, provided the individual meets all other necessary criteria. This includes waiting 6 years after the completion of any sentencing and payment of fines before applying. The applicant also cannot have more than 3 disorderly persons offenses on his/her criminal record, and the drug distribution charge must be the only indictable offense conviction. Unfortunately, a person with a first- or second-degree conviction cannot have his/her record expunged.
Frequently Asked Questions About Selling Drugs in NJ
Who Should You Contact for Help with an Arrest for Selling Drugs?
If you or a loved one was charged with a drug-related offense in New Jersey, contact the attorneys at Rosenblum Law today. Our skilled criminal defense attorneys have helped people defend against drug charges and other serious criminal offenses. We can defend your constitutional rights, fight to keep you out of jail and do what we can to have your distribution charges dismissed. E-mail or call us today at 888-815-3649.