The Attorneys At Our Mays Landing Criminal Firm Include Former Prosecutors In Charge Of The Drug Task Force & Major Crimes Bureau Who Have Defended Countless Heroin Possession and Distribution Charges With Success
Heroin use and addiction have experienced a sharp uptick during the past decade, both in the urban and suburban communities including in Atlantic City, Pleasantville, Galloway, Egg Harbor Township and Hamilton. Teens and adults alike develop these addictions through their constant chase of that “stronger high” or reliance on prescription pills. Unfortunately, these addictions become both personally, and legally detrimental as law enforcement officers across New Jersey have increased their efforts to prevent and prosecute heroin use. Under the New Jersey Criminal Code, possessing any amount, no matter how small, of heroin, is at a minimum a third-degree crime. The penalties for a third-degree heroin possession charge include up to five (5) years in prison and a $15,000 fine
What is “Possession” Under New Jersey Law?
There are three types of possession: Actual, Constructive, and Joint Possession.
Actual possession is the most common and straightforward form of possession. Specifically, occurs when a person physically controls, holds, or houses the illicit materials. This does not require the court to consider the surrounding circumstances.
The second form of possession is constructive possession. Here, possession is determined by the court based upon the person’s conduct in relation to the heroin. Essentially, a person constructively possesses a drug when they are able to exercise current and almost immediate control by direct or indirect means in a manner that would affect the item during the time in question. This situation most often comes up in cases involving drugs in an automobile.
Joint possession is the least common of the three forms of possession. Under this approach, a defendant is under joint possession of heroin if, based upon the circumstances surrounding the situation he or she appears in control of the heroin. The court is afforded certain factors to make this determination.
Prison or Probation for Heroin Possession in New Jersey?
Whether you can expect probation or prison depends not only on the skill of the defense lawyer you select but also your criminal record, whether you have a drug dependency and the amount of heroin involved in the incident in question. As mentioned above, the minimum you charges you face for heroin possession is a third-degree crime. As a third-degree crime, a conviction carries between three (3) and five (5) years in prison, up to a $15,000 fine, community service, participation in a drug diversion program, and possible participation in a supervised release program. As a third-degree crime, there is a presumption against incarceration for first offenders.
Atlantic County Heroin Distribution Charge Under N.J.S.A. 2C:35-5
Any person who manufactures, distributes or dispenses heroin or possesses this form of CDS with the intent to distribute or dispense it, is exposed to an indictable offense (the equivalent of a felony in New Jersey). This law extends to counterfeit substances being presented as heroin. While possession of heroin is required to prove distribution, prosecutors can use “constructive possession” in place of actual possession. Constructive possession allows for a person to be considered to possess a substance even if it isn’t on their physical person if it is within their control and they know it exists. This often comes up in distribution of heroin cases where a suspect allegedly hid the drugs nearby (under a rock, mailbox, etc.). The prosecutor, if able to prove that the defendant knowingly exhibited dominion or control over the substance, can prove possession. Distribution of heroin can result in severe penalties including prolonged incarceration and expensive fines at the time of sentencing at the Atlantic County Superior Court which is located in Mays Landing New Jersey.
Heroin Distribution Attorney Atlantic City NJ
The Prosecution must prove three elements in order to convict a defendant for distribution of heroin in Atlantic City or less populated Atlantic County municipalities like Margate City, Hammonton, Northfield, Somers Point, and Absecon. The prosecutor must prove that the substance was Heroin or its analog, or counterfeit heroin. It also must be proven that the defendant manufactured, distributed or dispensed it. It is important to note that this statute does not require that the substance be sold, “dispense” covers sharing or giving away as well as selling. The prosecution must prove that the defendant committed the previous two elements “knowingly or purposely”. This is a required mental state, protecting a person from being convicted for unintentionally or unknowingly distributing heroin.
Felony Heroin Distribution Charges in Galloway NJ
The degree of the crime for Distribution of Heroin increase depending on the amount. The Prosecutor is also allowed to aggregate (add together) multiple acts of distribution (such as several drug sales over the course of one night or one week) in order to increase the degree of the offense. As long as each incident being used occurred within a specified statute of limitations (time limit), the prosecution can add the weights of multiple incidents to elevate the degree of the offense.
- If the amount of Heroin is less than one ounce it is a crime of the 3rd degree.
- There is a mandatory $1,000 penalty for a conviction of 3rd-degree distribution of heroin. In addition to this penalty, a fine of up to $75,000 may be imposed by the court.
- If the amount of Heroin is between one ounce and five ounces it is a crime of the 2nd degree.
- There is a mandatory $2,000 penalty for a conviction of a 2nd-degree distribution of heroin. In addition to this penalty, a fine of up to $75,000 may be imposed by the court.
- If the amount of Heroin is greater than five ounces it is a crime of the 1st degree.
- There is a mandatory $3,000 penalty for a conviction of a 1st-degree distribution of heroin. In addition to the penalty, the court may impose a fine of up to $500,000 upon conviction.
There is also a forfeiture of driving privileges associated with a conviction for Distribution of Heroin. This loss of license can range from 6 months to 2 years but can be reduced or dismissed if the defendant can prove “extreme hardship”. This penalty is very severe, but can possibly be avoided by hiring a qualified attorney.
Repeat offenders are also subject to increased penalties, requiring that between ⅓ and ½ of the sentence imposed be completed before an offender is eligible for parole. However, if the Brimage Sentencing Guidelines are imposed (because of repeated drug distribution convictions), an offender could face mandatory minimum sentences with no opportunity for plea bargaining. This guideline eliminates prosecutorial discretion and creates substantially more severe terms of incarceration.
Possibility of Probation and Drug Rehabilitation For Drug Distribution Charges
Just as repeat offenders are treated more severely, a first-time offender has several options to reduce the consequences of a conviction. If the defendant is a drug-dependent person and is being convicted of distributing a controlled dangerous substance for the first time, the person may be eligible to receive probation (instead of a prison sentence) along with mandatory entrance to a drug rehabilitation program. This alternative sentence is not available for convictions of first degree crimes, making it critical to attempt to keep the degree of the offense as low as possible.
There are alternatives the prison such as Pre-Trial Intervention and Drug Court. These alternative forms of adjudication are not available in every defendant’s case and will only be afforded under certain circumstances. For assistance with your criminal matter, contact The Law Offices of Jonathan F. Marshall and speak with a trial attorney today.