A. Possession of a CDS



Possession of a Schedule I to IV CDS, which includes even a trace amount of less than .01 grams of cocaine, heroin and other drugs, is a third degree crime with a sentencing range of 3 to 5 years in prison and a fine up to $35,000.

Possession of marijuana, where the weight of the marijuana is more than fifty grams or 5 grams of hashish, is a crime of the fourth degree. The prison potential for this offense is 18 months and the maximum fine is $25,000. If the weight of the marijuana is less than 50 grams or less than 5 grams of hashish, the offense is a disorderly person's offense. As explained earlier, stems, stalks and seeds count in the weighing process.

When the average citizen thinks about possessing an object, thoughts are ordinarily pointed to actual or manual possession, (viz. I have this book or paper in my hand; therefore, I possess it.) The law's perception of possession is much broader. Actual possession is not required to be convicted under the Drug Statute.

Possession in the eyes of the law may be actual or constructive. Actual possession is when one has the illegal item in his/her hand or pocket. Constructive possession is established by showing knowledge of the identity of the item, where it is located and the intention and capacity to exercise control over it. If one is shown to be the only person to exert actual or constructive possession of an item, that person is in sole possession of that item. If more than one person can exert control over the item, possession is joint. One can be convicted of a possessory offense if he/she, either alone or with others, has actual or constructive possession of a CDS. All of these possessory concepts can be proven by circumstantial evidence.1

You can not possess a CDS without knowing its character. Thus, you can not be found guilty of possession of a CDS if you are holding a suitcase but do not know that it contains a CDS. If, however, you know the suitcase has a CDS but do not know the precise nature of the CDS you can be convicted of a crime.

You can possess something without ever owning it. This concept was developed to cover events where a "mule" is used to transport drugs in a vehicle leased by another.

B. Possession etc. of Drug Paraphernalia

It is a crime of the fourth degree to distribute, possess with intent to distribute or advertise for sale drug paraphernalia. The penalty for a crime of this nature is a maximum term of imprisonment for 18 months and a fine of $10,000. If you deliver and or sell drug paraphernalia to someone under 18 years of age, you have committed a third degree offense, which requires a maximum jail term of 5 years and a fine of up to $15,000. It is a disorderly persons offense if you merely possess drug paraphernalia and in that case the maximum term of imprisonment is 6 months and the maximum fine is $1,000.

The term "drug paraphernalia" is broadly defined to include any equipment, product or material that can allow someone to plant, cultivate, harvest, manufacture, produce, prepare, process, package, ingest, inhale, or introduce into the body a CDS. The Drug Statute specifically lists over 10 separate items that can be considered drug paraphernalia including blenders, bowls, balloons, envelops, hypodermic needles, and all types of smoking devices.Some of the facts that can be used to determine whether an item is "drug paraphernalia" are: (1) statements by the owner; (2) the proximity of the object to a CDS; (3) the existence of residue in or on the object; (4) writing instructions relating to the use of the object; (5) advertisement that indicate the objects intended use; (6) the likelihood of using the object for a legitimate use; and, (7) expert witness testimony.

In order to prove that an individual distributed or intended to distribute drug paraphernalia the government must show that: (1) the object was drug paraphernalia; (2) that the individual distributed the object or intended to; (3) that the object was going to be used for some illicit purpose in violation of the Drug Statute; and, (4) that the individual knew that it was going to be used for that illicit purpose.The facts needed to prove that guilt where an individual is charged with mere possession of drug paraphernalia are: (1) that the object was drug paraphernalia; and, (2) that the individual used or possessed the object for an illicit purpose in violation of the drug statute.

The government and the courts are seriously committed to a strict enforcement of this section of the Drug Statute to the extent that a municipal ordinance conceived to allow a municipal social service organization to disseminate clean hypodermic needles to drug addicts was determined invalid because it violated the drug paraphernalia statute and that was so even though the statute seemed to authorize a government agency to distribute hypodermic syringes or needles.

Copyright (c) 2008 Frank Luciano