Marijuana Possession Complaint Dismissed for State’s Failure to Properly Return Charging Document

Under normal circumstances, the rules of court require that the law enforcement officer issuing complaint provide that complaint to the court of jurisdiction by the first return date. For example, if the State Police charge you with possession of less than 50 grams of marijuana in the Livingston Municipal Court, the arresting officer must return that complaint to the court of jurisdiction by the defendants first appearance.

A recently encountered a situation where my client had been served with a complaint for possession of less than 50 grams of marijuana in violation of NJSA 2C:35-10(a)(4). When we appeared for the first court date, the court informed the defendant that the complaint was not in the system. This is not all that uncommon, and under normal circumstances, a municipal court judge will not dismiss on that basis, especially if the court date is relatively close in time to the actual arrest. However, in this particular instance, I was in this particular (unnamed) Essex County municipal court, on four different occasions, and the complaint was still not available to the court.

On each occasion, I made a motion dismiss under the applicable rules. This motions had been denied during prior appearances. On the last appearance, the judge finally dismissed after a lengthy discussion. However, had the judge decided not to dismiss, I had created a significant record for appeal if necessary.

The thing that struck me about this case was the waste of time, money and resources for me and my client. Under normal circumstances, I charge a flat fee for simple marijuana possession cases, thinking that the case will either resolve or be tried within a reasonable time. Discovery is usually provided within a reasonable time, and any motions that need to be filed are done quickly. But when presented with a situation such as this, where the delay is unreasonable, it creates hardships for the defendant. My client had to make five appearances instead of two. I do not charge more money when I flat fee a case, so am doing triple the work contemplated. But that does not upset me, because it is worth it when the hard work pays off and justice is served, even if it takes longer than it should.

The parties that are not adversely affected are your adversaries. The prosecutor and the arresting officer are typically not affected at all. It is not until the judge actually makes the decision to dismiss that the other side becomes upset.

The ironic thing is the court typically encourages the defendant to hire counsel, as it should. This case was a prime example of why your should hire a lawyer. But handling  a case in this fashion essentially drives up the cost on the defendant, not just for legal fees, but for lost wages too. It discourages people from protecting their rights.

In any event, it is important to realize that you are protected by a number of procedural and substantive laws. Knowing these laws can lead to the dismissal of serious criminal complaint. Protect your rights, and always consider hiring an advocate.


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