Receiving a drug charge can be stressful and frightening. It can leave a nasty stain on your criminal record and has the potential to negatively impact your future employment. Drug use or possession with the intent to use drug paraphernalia is a disorderly persons offense in New Jersey, but even a charge of this nature can carry some serious penalties and hurt your reputation. Because of the lasting stigma an offense like this leaves, it is very important to secure excellent legal representation immediately following this charge.
If you have been arrested for possession with the intent to use drug paraphernalia, you need an experienced lawyer on your side. At Lustberg Law Offices, LLC, New Jersey drug paraphernalia possession lawyer Adam M. Lustberg fights for New Jersey clients with dedication and experience. Our team of skilled attorneys may be able to help you protect your rights and freedom if you are charged with drug trafficking, possession of drug paraphernalia, possession of mushrooms, or any other drug-related offenses in New Jersey. Contact our office today at (201) 880-5311 for a free initial consultation.
What Is a 2C 36-2 Charge in NJ?
A 2C:36-2 charge in New Jersey refers to possession of drug paraphernalia. This includes any equipment used to ingest, prepare, store, or conceal illegal drugs. It is classified as a disorderly persons offense and may result in up to 6 months in jail, fines up to $1,000, and a criminal record.
a. Use or possession with intent to use. It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title, other than when used or possessed with intent to use, for ingesting, inhaling, or otherwise introducing marijuana or hashish into the human body. Any person who violates this section is guilty of a disorderly persons offense.
b. Notwithstanding that using or possessing with intent to use drug paraphernalia to ingest, inhale, or otherwise introduce marijuana or hashish into the human body is not a punishable crime, offense, act of delinquency, or civil violation pursuant to this section, the use of drug paraphernalia for that purpose may be prohibited or otherwise regulated on or in any property by the person or entity that owns or controls that property, including multifamily housing that is a multiple dwelling as defined in section 3 of P.L.1967, c.76 (C.55:13A-3), the structure or specific units of the structure of a cooperative as defined in section 3 of P.L.1987, c.381 (C.46:8D-3), the units of a condominium, as those terms are defined by section 3 of P.L.1969, c.257 (C.46:8B-3), or a site in a mobile home park as defined in section 3 of P.L.1983, c.386 (C.40:55D-102), which site is leased to the owner of a manufactured home, as defined in that section, that is installed thereon.
Definition and Details of Drug Paraphernalia Crimes in NJ
Possession of drug paraphernalia typically refers to any equipment, product, or material intended for use with controlled dangerous substances. Common examples include:
- Glass Pipes or Bongs
- Rolling Papers
- Roach Clips
- Syringes
- Capsules
- Cutting Agents
- Spoons
- Plastic Mini Bags
- Small Measuring Scale
These items may be considered drug paraphernalia based on how they are used or intended to be used. While many of them have legal purposes, the context in which they are found is critical. Courts may consider the following factors when determining whether an item qualifies as drug paraphernalia under New Jersey law: such as:
- Statements by an owner or by anyone in control of the object concerning its use
- The proximity of the object of illegally possessed controlled dangerous substances or controlled substance analogs
- The existence of any residue of illegally possessed controlled dangerous substances or controlled substance analogs on the object
- Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use as drug paraphernalia
- Instructions, oral or written, provided with the object concerning its use
- Descriptive materials accompanying the object which explain or depict its use
- National or local advertising whose purpose the person knows or should know is to promote the sale of objects intended for use as drug paraphernalia
- The manner in which the object is displayed for sale
- The existence and scope of legitimate uses for the object in the community
- Expert testimony concerning its use
Is a Clean Pipe Paraphernalia?
Determining if a clean pipe qualifies as drug paraphernalia in New Jersey depends on how it is intended to be used and the circumstances surrounding its possession. Under state law, paraphernalia encompasses any equipment, product, or material primarily intended for use in various drug-related activities, including consuming, concealing, or manufacturing controlled substances. Even if a pipe is clean and shows no signs of drug use, its design or the circumstances in which it is found may lead to it being classified as paraphernalia.
If law enforcement discovers a clean pipe during a search or arrest, the surrounding evidence, such as scales, bags, or drug residue, can suggest illegal activity. The type of pipe also plays a role as certain types of pipes, especially those designed for consuming illicit substances like methamphetamine, are more likely to be viewed as paraphernalia.
However, a pipe without residue may not be deemed paraphernalia if there is no evidence suggesting its use with illegal substances. The legal distinction is based on the intended use; simply possessing a clean pipe, particularly one associated with legal substances like tobacco, doesn’t automatically make it paraphernalia. Factors such as the pipe’s design, the circumstances of its discovery, and its intended market use all help determine if it qualifies as paraphernalia.
In New Jersey, drug paraphernalia laws are in place to prevent the use and distribution of drugs. As a result, even possessing items typically linked to drug activity, such as certain types of pipes, can attract attention from law enforcement. Penalties for possessing paraphernalia vary, ranging from fines to more serious legal consequences, depending on the situation. Knowing these laws may help individuals avoid legal issues related to possessing such items.
Penalties for Drug Paraphernalia Possession in New Jersey
If you are convicted of possession of drug paraphernalia, the penalties can include up to $1000 in fines, jail time of up to 6 months, and driver’s license suspension for 6 months up to 2 years. However, if one can prove a serious need to drive (such as the need to travel long distances for work or to care for a sick family member), a judge has discretion to waive the driver’s license suspension if compelling circumstances are demonstrated.
Although a disorderly persons offense is not the same as being convicted of a crime, the associated charges can still have devastating effects on one’s life. Drug charges, even small ones, never look good on one’s record and can result in the loss of your degree or job opportunities.
It is also important to note that a drug paraphernalia charge can often be accompanied by other drug crime charges. Prosecutors will often use drug paraphernalia possession to leverage their case against you and amplify the seriousness of other drug crimes. Penalties can also be worse if the individual is convicted of other drug crimes at the same time. When a situation like this occurs, you will need a quality lawyer to help you negotiate a less severe sentence.
Common Defenses for Drug Paraphernalia Possession Charges
The possession of drug paraphernalia is a serious offense. New Jersey’s extensive drug paraphernalia legislation can also lead to criminal charges. An attorney can help defendants explore all options to preserve their freedom. These are just a few of the possible defenses a criminal defense lawyer may employ to help their client defend against drug paraphernalia possession charges.
Legal Use of the Items
Paraphernalia items are usually objects that are legally produced and then sold. However, what makes them illegal is when they are being used for drug-related purposes. If a defendant’s defense team is able to demonstrate that the paraphernalia was not used for illegal purposes, then the defendant will have a strong defense.
Adam M. Lustberg is a New Jersey drug defense lawyer who has extensive knowledge about defenses for drug paraphernalia possession charges. Each defendant’s case is unique and our attorneys at Lustberg Law Office strive to create the right defense strategy. Contact us today to schedule a consultation.
Civil Rights Violation
Everyone in America has civil rights. If the defendant’s arrest and the circumstances leading to it have involved an illegal violation of their civil rights, they may be able to have their charges dismissed. These violations could include:
- Law enforcement officers use illegal ways to conduct a search and discovery of the alleged paraphernalia
- Law enforcement officers overstepping what is legally acceptable behavior during interrogation or arrest
- Law enforcement deliberately induces an offender into committing a crime by using entrapment
Can You Be Charged Without Physically Holding Drug Paraphernalia?
In New Jersey, you can indeed be charged with possession of drug paraphernalia even if you are not physically holding the items. Under N.J.S.A. 2C:36-2, possession includes both actual and constructive possession, which broadens the scope of how an individual can be legally responsible for paraphernalia. Constructive possession applies when someone knows about the paraphernalia and has the ability and intent to exercise control over it, either directly or through another person.
For example, if drug paraphernalia is found in a vehicle or residence you control, such as a car you were driving or an apartment you rent, you may be charged under constructive possession, even if you were not present when the items were discovered. Courts often consider various circumstances to establish constructive possession, including your proximity to the paraphernalia, any incriminating statements, and your legal or physical connection to the location where the items were found.
Possession of drug paraphernalia is a disorderly persons offense in New Jersey, which may lead to fines, jail time, and a suspension of driving privileges. If paraphernalia is found within your vicinity, and you have the capability of controlling it, the law assumes a level of responsibility that can lead to a conviction for constructive possession. Given the legal and practical consequences, addressing these charges promptly and consulting with a qualified attorney is often a critical step in protecting your rights.
What Is the Difference Between Actual and Constructive Possession Under New Jersey Law?
The main difference between actual and constructive possession under New Jersey law is that actual possession requires direct physical control over an item, while constructive possession applies when someone has knowledge of an item and the ability to exercise control over it, even if it is not in their immediate physical custody.
Can You be Charged with Possession for Residue
In New Jersey, the law is quite stringent when it comes to drug offenses. This includes the possession of drug residues. A common misconception is that you can’t be charged if there are only trace amounts of controlled substances. However, under New Jersey law, you can be charged with drug possession even if what you have amounts to mere residue.
New Jersey’s Controlled Dangerous Substances Act (N.J.S.A 2C:35-10(a)) does not stipulate a minimum quantity of a drug for a person to be charged with possession. It simply states that it’s unlawful for anyone to knowingly or purposely possess a controlled dangerous substance. This means that if there is any detectable amount of a drug, including residue, you can be charged.
The penalties for possession of drug residue in New Jersey can be severe. They can range from fines, mandatory drug counseling, probation, to jail time in some cases. The exact penalties depend on several factors, including the type of drug involved, the person’s criminal history, and the presence of any aggravating factors.
It’s also important to note that if the residue is found on an item associated with drug use, like a pipe or a spoon, you could also be charged with possession of drug paraphernalia, which carries additional penalties.
If you’re facing charges for possession of drug residue in New Jersey, our team of drug paraphernalia possession attorneys can help. We will guide you through the legal process and work to protect your rights.
Program Options Available to Allow for a Clean NJ Criminal Record
For clients who are first-time offenders (that means anywhere in the USA), there are programs available that, upon passing, can result in the dismissal of charges and a clean record. If you are only charged with drug paraphernalia possession, you may be able to receive a Conditional Discharge, where you are placed on probation for one year and can have your charges dismissed. However, having your charges dismissed depends on your ability to pass all drug tests and avoid any additional criminal charges during this period.
If you are a first-time offender and you are charged with felony offenses in additional drug paraphernalia then you may be eligible for Pretrial Intervention (PTI) that may benefit you. PTI is for a period of time up to three years. If you abide by the terms and conditions of PTI, typically by remaining offense-free, passing all drug tests, and paying any fines, then you may be eligible to have your slate wiped clean.
How To Get A Drug Paraphernalia Charge Dropped
Drug paraphernalia possession is a significant offense in New Jersey that can lead to serious legal consequences. Nonetheless, if you’re facing a drug paraphernalia charge, you should know that several possible legal defenses can be utilized to your advantage. A strong legal defense may allow you to challenge the prosecution’s case and potentially secure a dismissal of the charges.
One of the most common defenses to a drug paraphernalia charge is improper or deficient Miranda warnings. Law enforcement officers are required to read you your Miranda rights before they interrogate you, which includes your right to remain silent and your right to an attorney. If the officer fails to provide proper Miranda warnings, any statement you make may be inadmissible in court. As a result, this could result in the prosecution losing a significant portion of its evidence against you.
Another defense to a drug paraphernalia charge is mistaken identity. If you can prove that you were not in possession of the paraphernalia or equipment, or that there was someone else who could have been responsible, you may be able to have the charges dropped. Similarly, if you can demonstrate that the paraphernalia or equipment wasn’t yours or that you didn’t know it was in your possession, you may also be able to challenge the prosecution’s case.
If you’re facing a drug paraphernalia charge in New Jersey, it’s essential to seek the help of an experienced criminal defense attorney. At Lustberg Law Offices, LLC, our team of drug paraphernalia lawyers may be able to help determine the best legal strategy for your case.
| Defense Strategy | Details |
|---|---|
| Improper Miranda Warnings | Challenging the case based on improper or deficient Miranda warnings. Law enforcement must read your Miranda rights before interrogation, including the right to remain silent and the right to an attorney. Failure to provide proper Miranda warnings can make any statements you made inadmissible in court, potentially weakening the prosecution’s case. |
| Mistaken Identity | Asserting that you were not in possession of the drug paraphernalia or equipment or that someone else could have been responsible. Proving mistaken identity can be a defense strategy to have the charges dropped. Similarly, demonstrating that you didn’t own or weren’t aware of the paraphernalia’s presence may challenge the prosecution’s case. |
Consult With a Qualified New Jersey Criminal Defense Attorney About Your Options Today
Experienced criminal defense attorney Adam M. Lustberg knows how to fight drug charges and can help you avoid possession of drug paraphernalia penalties. To minimize the damage that severe penalties can inflict upon your life and livelihood, attorney Lustberg can build a strong defense strategy on your behalf. He understands how to challenge the prosecution’s evidence in order to get your charges dismissed or reduced, if possible. Contact Lustberg Law Offices, LLC at (201) 880-5311 to schedule your free consultation today.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
