Several months ago I was retained by a college student who was facing two charges. Possession of 50 grams or less of marijuana in violation of N.J.S.A. 2C:35-10a and unlawful possession of a prescription drug in violation of N.J.S.A. 2C:35-10.5e(1). Both charges are disorderly persons offenses so they were handled in municipal court. The law states that disorderly persons offenses carry the risk of 6 months in jail, $1,000 in fines, and for drug offenses, a loss of license.
My client had never before been in trouble. He was a double major with a 4.0 GPA. His résumé spoke volumes about internships he did, community service, and hard work. A conviction on his record was simply not an option. Fortunately, the client was eligible for a conditional discharge. Had we decided to enrolled him in the conditional discharge program he would have been on a period of probation for 12 months and subject to random urine monitoring. He would have had to remain compliant, drug free, and arrest free. The earliest we would have been able to expunge the arrest would have been 18 months and my client would have burned his conditional discharge. I felt the criminal defense lawyers at Roberts & Teeter could have done better, and I counseled the client on his options. He decided he wanted to fight.
Step one, as in any criminal case is to demand, receive, and review discovery.
Here, discovery explained that a Resident Advisor smelled the odor of marijuana in a dorm room and called the police. According to the police, my client was later seen by the RA leaving the room and carrying in his hand what looked like marijuana. He was later found by police outside his dorm room. My client denied any wrongdoing, gave voluntary consent to search his person and his dorm room. Nothing was recovered from my client and the police report didn’t indicate that any marijuana was found anywhere else. Instead, the police found a prescription pill bottle containing 1 pill of Adderall with someone else’s name on it. According to the police report, the police called the owner, and the owner admitted that he has a valid prescription for Adderall but denied being in my client’s room and that he doesn’t know how his pill bottle wound up there. The police inferred in the discovery that the owner threw out the bottle and that my client retrieved it from the trash and kept it as his own. My client’s version was manifestly different.
My client explained that he had no idea how that bottle wound up in his room but that it belonged to his friend and neighbor who probably left it in his room by mistake. Because my client’s version of the events wasn’t matching the version provided by the police more investigation was necessary. I called the owner of the prescription bottle who explained that at about 3:00 am, while he was sleeping, he awoke to a police call from the police. He admitted to being the lawful owner of the prescription and had no recollection of having told the police that he was never in my client’s room. Instead, he told me that he had been in that room recently, and may have left the bottle there by mistake. I was able to secure a signed affidavit from the witness to that effect and provided it in reciprocal discovery.
We appeared in municipal court and I urged the municipal prosecutor to dismiss the charged. I explained that the prescription pill belonged to a friend that there was no evidence of any marijuana recovered. The prosecutor indicated that he had a lab report which tested positive for marijuana and the pill tested positive for amphetamines. He offered a conditional discharge. Because the lab report had not yet been provided in discovery we adjourned.
There is a De Minimis exception to the prescription pill charge. The law says:
A person who knowingly possesses, actually or constructively:
(1) a prescription legend drug or stramonium preparation in an amount of four or fewer dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person.
However the charge:
shall be deemed a de minimis infraction subject to dismissal pursuant to N.J.S. 2C:2-11 if the person demonstrates that he unlawfully received no more than six dosage units within a 24 hour period, that the prescription legend drug or stramonium preparation was lawfully prescribed for or administered to the person from whom he had received it, and that the person possessed the prescription legend drug or stramonium preparation for solely for his personal use.
N.J.S.A. 2C:35-10.5e. On the face of the complaint, my client was charged with possessing four or less doses of Adderall. The discovery revealed that the police only recovered one pill. Additionally, I had a signed affidavit and a copy of a valid prescription from the lawful owner. I therefore filed a motion with the Superior Court to dismiss the prescription pill charge as De Minimis. Because I was only moving to dismiss the prescription pill charge and not the marijuana charge, the county prosecutor did not object and the motion was granted.
At this point, only the marijuana charge remained, and I knew that the State would have a proof problem because no police report indicated where the marijuana was found. When we returned to municipal court, I was able to explain that the prescription charge had been dismissed and outlined the problems that State would have trying to convict my client on possession of marijuana. The municipal prosecutor reviewed the police reports and agreed it wasn’t worth trying the case. On his motion, the marijuana charge was dismissed and the case was over. In dismissing the complaint, the Judge turned to my client and said, “You do realize your attorney hit a home run for you.” I’m certain my client did.
Here, there were many lessons learned from this case. In order to properly defend drug cases in municipal court, you must get the discovery and review it with your client. If there are discrepancies, further investigation may be in order. Always research the statute charged because sometimes a possible defense is written directly into the statute. If you can get one count dismissed, do it, because defending against less charges is easier. Don’t immediately enroll all eligible defendants into a conditional discharge, a conditional dismissal or PTI. Sometimes, a better result is possible. Finally, don’t be afraid to take cases to trial. Its advisable to actually prepare for trial, and make it known to the prosecutor that you are not backing down, taking the deal, and you are certain that you can win the case. If you are convincing enough, the prosecutor may just dismiss the case for you and save you and your client the time and expense of having the judge decide it.
If you or someone you know is facing prescription pill charges, marijuana charges, or other drugs charges in New Jersey, contact the attorneys at Roberts & Teeter and see what we can do to help. www.centralnjlawyers.com (732) 607-5553.
Michael B. Roberts, Esq.