When is Possession of a Schedule II Controlled Substance a Felony in New Jersey?

A felony or indictable crime is the most serious type of criminal offense a person can be charged with in New Jersey.  Our Atlantic City Adderall possession lawyers examine some of the scenarios where New Jersey controlled substance and prescription drug laws make it a felony to possess Schedule II drugs.

What Does Schedule II Drug Mean? What Are Some Common Examples?

The Drug Enforcement Administration (DEA) is the federal government agency tasked with enforcing U.S. drug regulations.  The DEA assigns all drugs a category, which is called a “schedule,” based on two factors:

  • Each drug’s potential to be abused and create dependence in the user.
  • Each drug’s medical merit.

There are five schedules, which are labeled with Roman numerals I through V.  The lower the number, the higher the potential for drug abuse and “severe psychological and/or physical dependence.”

Schedule II is the second most serious classification a drug can receive by DEA criteria.  Drugs in this category include, but are not limited to:

  • Adderall (amphetamine)
  • Cocaine
  • Fentanyl
  • Methamphetamine 
  • OxyContin (oxycodone)
  • Vicodin (acetaminophen/hydrocodone)

As you can see from the list above, some of these substances are illegal street drugs (such as cocaine), while others are prescription drugs (such as OxyContin).  A drug that is legal to possess with a prescription, but illegal to possess without a prescription, is called a “legend” drug.

At the state level, New Jersey also has its own drug schedule, which establishes criteria for Schedule II drugs under N.J.S.A. § 24:21-6.  Like the federal schedule, New Jersey’s drug schedule assigns cocaine and fentanyl a Schedule II designation.

Is it a Felony to Possess Schedule II Prescription Drugs or Controlled Substances in NJ?

Before we answer this question, we need to go over some legal terminology that is important for defendants and their loved ones to be familiar with.

You are probably used to hearing crimes described as either “felonies” or “misdemeanors.”  New Jersey is unusual in that its criminal laws do not use these terms.  In New Jersey, the term “disorderly persons offense” is used to describe the rough equivalent of a misdemeanor, while felonies are known as “indictable crimes” or “indictable offenses.”  Therefore, whenever we refer to a felony, we are referring to an indictable crime, and vice versa.

Make no mistake: a misdemeanor or disorderly persons charge is a serious legal problem that should not be taken lightly.  A disorderly persons conviction is fully capable of sending you to jail, burdening you with fines, and triggering other penalties.  However, an indictable crime is even more serious due to the extremely grave nature of the penalties that can result from a conviction.

The potential court-imposed penalties for an indictable crime are substantially harsher than the penalties for a disorderly persons offense, which is an urgent matter in its own right.  It can also be more difficult to get hired or to qualify for loans with an indictable crime on your record than it would be if the conviction was for a disorderly persons offense.

The New Jersey laws about drugs that most people would think of as “street drugs” – for example, cocaine and methamphetamine – are found at N.J.S.A. § 2C:35-10, which addresses controlled dangerous substances (CDS).  New Jersey prescription drug laws have their own separate statute, N.J.S.A. § 2C:35-10.5.

Both statutes outline scenarios – some of which are rather broad – in which the possession of a Schedule II controlled substance or prescription (“legend”) drug is a felony or indictable crime.  For example, knowingly or purposely possessing any Schedule II CDS  is a third degree crime, or third degree felony, under N.J.S.A. § 2C:35-10(a)(1).  The penalties may include a prison sentence of three to five years, as well as a fine of up to $35,000, which is $20,000 more than the $15,000 maximum fine normally permitted by New Jersey law for third degree crimes.  The statute explicitly provides for the increased fine.

Unlike the CDS possession statute, or N.J.S.A. § 2C:35-10, the statute for unlawful possession of prescription drugs, or N.J.S.A. § 2C:35-10.5, does not differentiate between prescription drugs based on how they are scheduled.  Instead of emphasizing schedules, N.J.S.A. § 2C:35-10.5 classifies prescription drug crimes as felonies or disorderly persons offenses based primarily upon how many pills or “dosage units” are involved in the offense.  Regardless of a prescription drug’s schedule, the following acts are felonies under N.J.S.A. § 2C:35-10.5.

  • Up to four pills:
    • Distributing a prescription drug for financial gain (i.e. selling prescription drugs).
    • Possessing a prescription drug.
    • Having a prescription drug under one’s control, with intent to distribute it for pecuniary gain.

If the number of pills is four or fewer, the acts listed above are fourth degree crimes (fourth degree felonies).

Distribution, possession, and possession with intent to distribute are considered third degree crimes (third degree felonies) when the number of dosage units is at least five, but less than 100.  If these acts involve 100 dosage units or more, they become second degree crimes (second degree felonies).

Atlantic City Drug Possession Lawyers Handling Adderall, Cocaine, and OxyContin Charges

The use, sale, possession, or distribution of Schedule II CDS and prescription drugs – or even intent to distribute Schedule II prescription drugs or CDS – can lead to aggressive criminal prosecution and debilitating penalties, including incarceration.  You need a tough and experienced Atlantic City drug possession lawyer if you or a loved one has been charged with these offenses.

Our New Jersey criminal defense law firm handles a wide array of indictable crimes involving Schedule II drugs.  For a free legal consultation with our Atlantic City Vicodin possession lawyers or Atlantic City OxyContin possession lawyers, contact the Law Offices of John J. Zarych at (609) 616-4956 as soon as possible.

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