Possession of CDS in New Jersey

N.J.S.A. 2C:35-10 · Drug Offenses

What the law says

The section prohibits knowingly or purposely obtaining or possessing a controlled dangerous substance or controlled substance analog without a valid prescription, practitioner’s order, or other authorization. It also addresses specified marijuana, hashish, and psilocybin possession; use or being under the influence of controlled substances other than marijuana or hashish; and failure to voluntarily deliver certain unlawfully possessed substances to law enforcement.

Depending on how it's graded, this offense is either an indictable crime, prosecuted in the Superior Court in the county where it happened, or a disorderly persons offense heard in municipal court. Indictable charges go through grand jury review. Prosecutors sometimes downgrade them to municipal court.

What the State must prove

To convict, the prosecutor must prove each element beyond a reasonable doubt. Under N.J.S.A. 2C:35-10, that means:

• For unlawful possession, the person knowingly or purposely obtains or possesses, actually or constructively, a controlled dangerous substance or controlled substance analog, and the substance was not obtained directly or pursuant to a valid prescription or order from a practitioner acting in the course of professional practice, or otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
• For marijuana or hashish possession, the person possesses more than the applicable statutory amount: prior to the effective date of P.L.2021, c.19, more than 50 grams of marijuana or more than five grams of hashish; on and after that effective date, more than six ounces of marijuana or more than 17 grams of hashish.
• For use or being under the influence, the person uses or is under the influence of a controlled dangerous substance or analog other than marijuana or hashish for a purpose other than treatment of sickness or injury as lawfully prescribed or administered by a physician.
• For a prosecution for use or being under the influence, the State need not prove use of or influence by a specific prohibited drug; it is sufficient to prove use of or influence by some prohibited controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog through physical and physiological symptoms or reactions caused by that use.
• For failure to make lawful disposition, the person knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of paragraph (1) or (2) of subsection a. and fails to voluntarily deliver it to the nearest law enforcement officer.

How the charge is graded

• A violation involving a controlled dangerous substance or its analog classified in Schedule I, II, III or IV, other than those specifically covered in this section, is a crime of the third degree.
• A violation involving a controlled dangerous substance or its analog classified in Schedule V is a crime of the fourth degree.
• Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is a crime of the fourth degree.
• On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of more than six ounces of marijuana, including any adulterants or dilutants, or more than 17 grams of hashish is a crime of the fourth degree.
• Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
• On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of six ounces or less of marijuana, including any adulterants or dilutants, or 17 grams or less of hashish is not subject to any punishment, as this possession is not a crime, offense, act of delinquency, or civil violation of law.
• Possession of one ounce or less of psilocybin is a disorderly persons offense.
• Using or being under the influence of a controlled dangerous substance or its analog, not including marijuana or hashish, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
• Knowingly obtaining or possessing a controlled dangerous substance or controlled substance analog in violation of paragraph (1) or (2) of subsection a. and failing to voluntarily deliver it to the nearest law enforcement officer is a disorderly persons offense.

Penalties in the statute

• For a crime of the third degree under paragraph (1), a fine of up to $35,000 may be imposed, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3.
• For a crime of the fourth degree under paragraph (2), a fine of up to $15,000 may be imposed, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3.
• For a crime of the fourth degree under paragraph (3), a fine of up to $25,000 may be imposed, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3.
• A person who commits an offense set forth in paragraphs (1) through (3) of subsection a. on school property used for school purposes and owned by or leased to an elementary or secondary school or school board, within 1,000 feet of such school property or a school bus, or on a school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence the court may impose, perform not less than 100 hours of community service.

General sentencing ranges

Unless a statute sets a different penalty, New Jersey's general sentencing laws (N.J.S.A. 2C:43-6, 2C:43-8, and 2C:43-3) set these maximums:

Other rules that can matter

• The possession prohibition does not apply when the substance was obtained directly or pursuant to a valid prescription or order from a practitioner acting in the course of professional practice, or as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
• The odor of marijuana or hashish, or burnt marijuana or hashish, does not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation of subparagraph (b) of paragraph (3) of subsection a.
• A person who violates subparagraph (b) of paragraph (3) of subsection a. is not subject to arrest, detention, or otherwise being taken into custody unless the person is also being arrested, detained, or taken into custody for another violation of law for which that action is legally permitted or required.
• A person is not to be deprived of a legal or civil right, privilege, benefit, or opportunity provided pursuant to any law solely because of a violation of subparagraph (b) of paragraph (3) of subsection a.; committing one or more such violations does not modify those rights, privileges, benefits, or opportunities. The text includes licenses, permits, certifications, financial assistance, housing assistance, social services, parental or guardian rights or custody in specified Division of Child Protection and Permanency actions or proceedings, and qualification, approval, or disapproval to serve as a foster parent or other legal guardian.
• Local and county law enforcement authorities must submit quarterly reports to the Uniform Crime Reporting Unit within the Division of State Police in the Department of Law and Public Safety, or another recipient designated by the Attorney General, using the uniform crime reporting system submission process. Reports must state the number of violations of subparagraph (b) of paragraph (3) committed in their jurisdictions, each person’s race, ethnicity, gender, and age, and the disposition of each person’s violation.
• The violations and associated information, together with a quarterly summary of violations investigated and associated information collected by the Division of State Police for the same period, must be summarized by county and municipality in an annual report. Quarterly summaries and annual reports must be made available to the public at no cost on the Division of State Police’s Internet website.
• Using or being under the influence of marijuana or hashish is not a punishable crime, offense, act of delinquency, or civil violation under subsection b. However, the person or entity that owns or controls property may prohibit or otherwise regulate smoking, vaping, or aerosolizing marijuana or hashish there, including in the specified multifamily housing, cooperative, condominium, and mobile home park settings.
• The failure-to-deliver offense does not preclude prosecution or conviction for any other offense defined in this title or any other statute.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Motions to suppress evidence from unlawful stops, searches, or warrants
• Challenging possession, especially constructive possession in shared cars or homes
• Lab testing, chain of custody, and weight calculations
• Diversion such as conditional discharge (N.J.S.A. 2C:36A-1) or PTI where eligible

What to do right now

1. Don't discuss the facts with police, the alleged victim, or anyone on a jail phone or social media.
2. Write down everything you remember, including names, times, and locations.
3. Keep every document you received, such as the complaint, summons, and release conditions.
4. Follow all release and no-contact conditions exactly.
5. Call a New Jersey criminal defense lawyer before your first court date.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-856-2373 for a free, confidential consultation about your Possession of CDS charge.

Related charges

• Strict Liability for Drug-Induced Death →
• Loitering to Obtain or Distribute CDS →
• Possession with Intent to Distribute CDS →
• Drug Distribution in a School Zone →
• Leader of a Narcotics Trafficking Network →
• Maintaining or Operating a CDS Production Facility →
• Obtaining CDS by Fraud →
• Drug Paraphernalia →

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.