Even if an illicit substance was not found directly on your person, you could be at risk of constructive possession charges if certain conditions are met. We can explain what constructive possession is, how it is charged in New Jersey, and what you should do if you are arrested.
Constructive possession of a controlled substance lets law enforcement charge you for simple possession or possession with intent to distribute (PWID), even if you did not have actual possession of an illegal drug. The same is true if you had constructive possession over an illegal firearm. Proving constructive possession requires proving that the defendant had the intent to exercise control over the item, as well as the ability to and the knowledge of its presence. Constructive possession and actual possession are charged the same, so take this kind of case very seriously.
Call our New Jersey drug possession defense lawyers at (609) 616-4956 for help with your case from the Law Offices of John J. Zarych.
What is Constructive Possession in New Jersey?
Constructive possession is different from actual possession, which is when someone has direct physical control over an item. Constructive possession involves different elements, but is charged the same crime as actual possession and should be taken just as seriously in New Jersey.
Definition
Constructive possession is when an individual is aware that illicit substances, illegal firearms, or other contraband are present and has the ability and intent to exercise control over them, even if it is not in their physical possession and on their person.
Common Examples
Arrests for constructive possession are common when individuals share spaces where illicit substances are found, such as shared vehicles or homes.
What’s Required to Prove Constructive Possession Under New Jersey Law?
Proving constructive possession requires prosecutors to prove four key elements beyond a reasonable doubt. Our drug possession defense lawyers are familiar with these charges and can exploit weaker aspects of the prosecution’s case for your benefit.
Knowledge of Presence
First, the prosecutor must prove that the defendant knew the controlled substance, firearm, or other illegal item was present in a home, car, or other location where the defendant had control or authority.
Knowledge of Character
The prosecution must also prove that the defendant understood what the illegal item was, e.g., they knew it was an illegal drug.
Ability to Control
Third, the prosecution must prove the defendant could exercise control over the controlled substance. Prosecutors might argue you had the ability to control simply because you lived in the house where the substance was found.
Intent to Exercise Control
Proving constructive possession also requires proving intent. The prosecution must prove, beyond a reasonable doubt, that you also intended to exercise control over it, such as by using it or selling it.
What is the Penalty for Constructive Possession in New Jersey?
Constructive and actual possession are charged as the same crime and penalized the same, even if the illicit substance was not found on your person.
Simple Possession of a Schedule I, II, III, or IV Substance
Simple possession of a Schedule I, II, III, or IV substance, whether constructive or actual, is a crime of the third degree in New Jersey. That makes it punishable by 3 to 5 years in prison and fines of up to $15,000.
Possession of a Schedule V Substance
Possession of a Schedule V drug is a crime of the fourth degree and carries a sentence of up to 18 months in prison.
Possession of More than Six Ounces of Marijuana
Possession of more than 6 ounces of marijuana is also a crime of the fourth degree in New Jersey, though possessing smaller amounts for personal use is legal.
Possession with Intent to Distribute
Possession with intent to distribute 5 ounces or more of heroin is charged as a first-degree crime in New Jersey. Even for constructive possession, convicted defendants could face between 10 and 20 years in prison. Penalties for PWID vary, depending on the substance and its amount.
Unlawful Possession of Weapons
Unlawful possession of a weapon can be charged as a second-degree crime for machine guns and a third-degree crime for handguns, rifles, and shotguns.
What Are Defenses to Constructive Possession in New Jersey?
If you are facing possession charges based on the legal concept of constructive possession rather than actual possession, our lawyers may argue lack of knowledge, lack of intent, or illegal search and seizure to defend your case.
Lack of Knowledge or Control
Our attorneys may argue that just because you shared a home or a vehicle with someone else, did not prove that you had any knowledge of the presence of illicit substances. For example, if an illicit substance was found in a private area of a shared home, such as hidden in a roommate’s bedroom, it would be reasonable to argue you were unaware it was there or that you had any access to it.
Lack of Intent
Possession charges require intent. The prosecution must prove you intended to exercise control over the illicit substances you knew were present in your home, car, or other property you had access to.
Illegal Search & Seizure
If possession charges arise from an illegal search of your property, our attorneys can file motions to suppress the evidence obtained in violation of the law. If that evidence is the only proof the prosecution has to bring possession charges against you, the charges may go away when the judge agrees the evidence is inadmissible.
FAQs About Constructive Possession Under New Jersey Criminal Law
Is Constructive Possession Charged the Same as Actual Possession?
Constructive possession is a legal concept that allows prosecutors to file possession charges even if a substance was not found on your person but was found in your vicinity, provided other conditions apply.
Is Proximity Enough to Prove Constructive Possession?
Proximity is not enough to prove constructive possession, as the prosecution must also prove that you were aware of the illicit substance’s presence, had the opportunity and ability to exercise control over it, and intended to distribute it.
Do You Need a Lawyer if You Are Arrested for Constructive Possession?
Constructive possession is not charged differently from actual possession in New Jersey, so you still need an experienced lawyer if you are arrested after drugs were found in your shared home or car.
Get Our Help with Possession Charges in New Jersey
Call (609) 616-4956 for your free case review from the New Jersey drug possession defense lawyers at the Law Offices of John J. Zarych.
