Possession of a Controlled Substance in New Jersey

All states regulate and control the possession of controlled dangerous substances (sometimes called "CDS"). But each state differs in its exact definition of what controlled dangerous substances are, and how to punish illegal possession of them. New Jersey classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled dangerous substances, but also the compounds used to manufacture them.

This article discusses illegal possession of CDS only. Illegally making or selling drugs (or possessing them with the intent to sell them) carries different penalties. For more information on illegal drug manufacturing and sales, see this article on illegal drug sales.

How Does New Jersey Classify Controlled Dangerous Substances?

Like the federal government and many other states, New Jersey divides CDS into five "schedules." Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction, and no recognized medical value. Schedules II, III, IV, and V decrease in dangerousness and probability of abuse, and increase in recognized medical uses.

There are well over 150 drugs and their compounds listed in New Jersey's drug schedules. You can find the classification for a particular drug by looking at New Jersey Statutes, which lists the drugs in Schedules I-V in the following sections: N.J. Stat. §§ 24:21-5, 24:21-6, 24:21-7, 24:21-8, & 24:21-8.1 (2023).

Penalties for Possessing Controlled Dangerous Substances in NJ

With limited exceptions for marijuana (more on that below), it's illegal in New Jersey to possess controlled dangerous substances for personal use without a valid medical prescription. Penalties vary according to the type and amount of drug involved. (N.J. Stat. § 2C:35-10 (2023).)

Below are the penalties for drugs in all five classes (except marijuana). Although the penalties for CDS possession include incarceration, keep in mind that in some cases, the judge might choose other options like probation, diversion (such as recovery court), and other sentencing alternatives.

Crime in the Third Degree

Possessing any amount of a schedule I, II, III, or IV drug is a crime in the third degree that carries a sentence of at least three (and up to five) years in prison, a fine of up to $35,000, or both.

New Jersey also punishes illegal possession of some other drugs not listed as CDS in the schedules as crimes of the third degree. Examples include gamma hydroxybutyrate (GHB) and flunitrazepam (Rohypnol, sometimes called "roofies"), which are known as "date rape drugs." The fine is considerably higher though, and can be up to $100,000. (N.J. Stat. §§ 2C:35-10.2, 2C:35-10.3.)

Crime in the Fourth Degree

Possessing any amount of a Schedule V drug is a crime in the fourth degree that incurs up to 18 months in prison, a fine of up to $15,000, or both.

Disorderly Person Offense

Using or being under the influence of any controlled dangerous substance not for the purpose of treating a sickness or injury (as legally prescribed by a licensed physician) is a disorderly person offense that incurs up to six months in jail and a fine of up to $500.

Enhanced Penalties for Controlled Substance Possession Crimes

Penalties for a second or subsequent conviction include up to twice the penalties otherwise allowed for the underlying offense. For example, the normal penalties for a first offense that is a crime of the fourth degree include a fine of up to $25,000, up to 18 months in prison, or both; however, if the violation is a second or subsequent offense, the applicable penalties increase to a fine of up to $50,000, up to 36 months in prison, or both.

Also, possessing any amount of any CDC within 1000 of a school (or school bus) can enhance the penalty. For example, if the court decides not to sentence the person to prison, the court must still order the person to serve at least 100 hours of community service (in addition to any other sentence and fines the judge imposes).

(N.J. Stat. § 24:21-29 (2023).)

Possession of Marijuana in New Jersey

Like many states, New Jersey now allows adults over 21 to legally possess, purchase, and consume small amounts of marijuana, with some restrictions. Possessing more than the allowed amount, or not obeying the restrictions is still a crime. To learn more about marijuana possession and sales offenses, see New Jersey Marijuana Laws.

New Jersey Laws on Possession of Drug Paraphernalia

Possessing drug paraphernalia (things used to grow, manufacture, package, or use drugs) is a disorderly person offense in New Jersey. There's an exception for possessing objects used to smoke or otherwise ingest marijuana and hashish, which is not a crime in NJ.

(N.J. Stat. § 2C:36-2 (2023).)

Defenses to Drug Possession in NJ

As in any criminal case, one or more common defenses might apply to drug charges. Also, criminal defense attorneys often argue to the jury that the prosecutor failed to prove the crime beyond a reasonable doubt.

Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. A defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their car.

Another common defense strategy in drug possession cases is to challenge the legality of the search that led to the drugs. If police conducted an illegal search, the evidence (the drugs) must be excluded unless an exception applies. Without evidence of the drugs, the prosecution doesn't have much of a case.

Talk to an Attorney

CDS convictions can result in time behind bars and harsh fines. It's important to have legal representation to fight the charges. A local experienced criminal defense lawyer who practices CDS defense can review the facts of your case can determine whether any defenses are available. They can also explain your options—such as whether probation, diversion, or a plea deal is possible—and pursue those alternatives or prepare your case for trial.

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