Defenses to Possession of Cannabis and other drug charges
By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section
Our office represents people charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted of possession of drugs, you can face jail, high fines, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for marijuana, hashish or other illegal cannabis derivatives and other criminal matters. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people. Hemp and Marijuana are both derived from the Cannabis plant. Hemp is cannabis grown for industrial use while marijuana is cannabis grown for recreational or medical use. Source: http://www.cannabis.com/ The defense of a person charged with possession of marijuana, hashish or other illegal cannabis derivatives is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with marijuana, hashish or other illegal cannabis derivatives. The Superior Court handles possession of larger amounts of marijuana, hashish or other illegal cannabis derivatives, possession with intent to distribute drugs The Municipal Court has jurisdiction to hear the following drug related offenses: NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine, hashish or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense;] NJSA 2C:36 2, possession of drug paraphernalia. All other drug offenses are heard in the Superior Court.
2C:35-2. "Hashish" means the resin extracted from any part of the plant Genus Cannabis L. and any compound, manufacture, salt, derivative, mixture, or preparation of such resin. "Marijuana" means all parts of the plant Genus Cannabis L., whether growing or not; the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant or its seeds, except those containing resin extracted from such plant; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed. If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendant's driver's license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of marijuana, hashish or other illegal cannabis derivatives and whether the case is heard in Superior Court or Municipal Court. Jail time and fines is explained in greater details in other articles on www.njlaws.com. The retainer fee must be discussed at the initial interview. I require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000-$7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately; do not wait to receive discovery.
Conditional Discharge or Pre-trial Intervention/ PTI for 1st time offenders If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre-trial Intervention. For small amounts of marijuana and hashish, heard in Municipal Court, N.J.S.A. 2C: 36A I provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A 1(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years. The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. Pre-trial Intervention may be available for first time offenders charged with possession with intent to distribute hashish charges heard in Superior Court. More details on PTI is available on website www.njlaws.com.
TRIAL PREPARATION The prosecutor is responsible for providing full discovery. Rules 3:13 3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990).
THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases. Defense counsel must subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious object to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car. In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of testing of the drugs. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence. The following ideas are sometimes used by defense attorneys to provide defend the charge of possession of marijuana, hashish or other illegal cannabis derivatives.
1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.
2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.
3. Subpoena witnesses defense Counsel should subpoena witnesses; sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.
4. First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).
5. No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state can't introduce lab results, the state can't use.
6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.
7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence Rule Hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State. The State must prove it was defendant's conscious intention to obtain or possess the item while being aware it was drugs. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.
Conclusion
It is well established that the prosecution of a defendant for possession of marijuana, hashish or other illegal cannabis derivatives is a criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges. Marijuana, hashish or other illegal cannabis derivatives offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Drug law and other defenses are explained in greater details in other articles on www.njlaws.com.
