I appeared in a local municipal court today on behalf of a client charged with a violation of NJSA 2C:35-10a(4), possession of marijuana less than 50 grams. The major issue in this case was whether the state could prove possession. As I have discussed in prior blog entries, there are two theories of possession. Actual possession is actually having the contraband on your person. Constructive possession is not actual possession, but rather the totality of the circumstances would show that the individual known or should have known that the contraband was present.
For the state to prove a drug possession offense, it must prove the element of possession. This particular case involved luggage, that was not within the defendant’s control at the time the weed was discovered. When the defendant was questioned, no admissions were made. Without getting to far into the facts of the case, there was enough doubt on the part of the prosecutor to bring into question the state’s ability prove the case.
After an extensive discussion, the prosecutor agreed to downgrade the offense substantially to a municipal ordinance violation. A local ordinance violation is not a criminal offense, does not appear on a criminal record, and is a locally enacted law. Examples of ordinance violations are noise and nuisance complaints, housing violation infractions, and disturbing the peace. A fine is typically assessed, but the defendant does not have a criminal record. If you plead guilty to an ordinance violation, the law allows for and expungement of the violation and the arrest after a 2 year period. But since the violation typically does not appear on a criminal record, the need for this is questionable.
As a result of this plea agreement, the defendant avoided all of the horrible consequences of a drug possession conviction, including a criminal record, loss of license, probation with drug testing, steep fines, etc.
