Types of Common Drug Charges

Interviewer: What are the most common kinds of drugs that you’re seeing?

James Abate: The most common arrest that we see comes under the possession of 50 grams or less of marijuana. That is actually in some of the towns where we represent clients. Police are conducting motor vehicle stops, it seems almost primarily to locate young people with marijuana. That’s going to come under a couple of different statutes. One is 39:4-49.1, which is possession of a controlled dangerous substance (CDS in a motor vehicle. The second is the criminal offense of possession of marijuana, which is 2C:35-10a.

The reason the police write both of those tickets is that possession of marijuana is a criminal charge. If you’re convicted, it creates a criminal record for possession of drugs, which remains on your background whenever you apply for a job, rent an apartment, or get a credit check. It’s going to show up if someone runs a background check.

The traffic ticket of CDS in a motor vehicle, which is again 39:4-49.1, is actually the more dangerous ticket, even though it’s just a motor vehicle offense because it comes with a mandatory two-year loss of license. That’s something in New Jersey. You’re unable to work, go to school, or take care of yourself if you don’t have the ability to drive.

When we resolve one of these cases, even if we’re getting a client into a diversionary program, we still have to be careful to make sure that we get the motor vehicle offense dismissed. A lot of less experienced lawyers will forget about the motor vehicle charge and then their client gets suspended for two years even though they’ve gone through a diversionary program.

Interviewer: Have you noticed any different trends as far as individuals who are being prosecuted or convicted for drug crimes? I think back in the ’70s and ’80s, there was a specific type of individuals, like teachers, doctors, and other sorts of professionals. Would that be an accurate assumption?

James Abate: The first thing is that I think you have to differentiate between 2C:35-10a(4), which is possession of 50 grams or less of marijuana, and every other offense. When we have somebody who has been arrested with under 50 grams of marijuana, if we can’t find a reason to suppress the search, we are very often going to look to get them into a diversionary program such as the conditional discharge program.

The conditional discharge program is basically probation before trial. If you get into the program and you can stay clean meaning both your urine drug test and your criminal behavior for six months to a year, the charges are then going to be dismissed if you are a first-time offender. For someone who is a first-time possessor of marijuana, we are going to be able to completely get them out of trouble through the conditional discharge program. If they decide to learn from that lesson not to possess drugs, then they are going to have a clean record for the rest of their life. If they went with a less experienced attorney, they might end up with a record. That’s even if we don’t find a reason to suppress.

The reason I bring this one up first is you’re asking me about different attitudes toward possession these days. It’s the marijuana of 50 grams or less that is going to come in under this circumstance. New Jersey does give you a little bit of help on possession of marijuana. When you deal with other types of drugs under 2C:35-10a, which could be anything from cocaine to hashish to stimulants to heroin, it becomes a very different story. These are what we consider “real” drugs.

Also, if you are above 50 grams of marijuana, you can then be accused that it wasn’t for personal consumption; you’re a distributor. Then we start dealing with what in New Jersey are called indictable offenses (whereas in other places you call them felonies). You’re going to get sent to the grand jury, and a grand jury is going to decide whether a criminal offense in the superior court should come against you. Then you are facing fourth-degree, third-degree, or second-degree charges.

For less than 50 grams you’re generally in the municipal court. You’re facing six months or less in jail. When you’ve stepped up to the superior court with the more serious drugs, you’re facing a fourth-degree offense, which could be up to a year and a half in jail; a third-degree offense, which could be five years in jail; or a second-degree offense, which could be five to 10 years in jail. There’s a real difference depending on the drug that you’re looking at and the amount of drugs that you’re dealing with. For marijuana on a first time, there may be some leniency. For everything else, it’s a different ball game.