What is Fentanyl?
According to the DEA, fentanyl is a synthetic opioid that is used in the medical community for pain relief. It is significantly more potent than heroin. The drug was first developed in the 1960’s as an anesthetic and has since been sold and distributed by pharmaceutical companies. According to the Center For Disease Control, fatal overdoses have been on the rise in the last several years.
Fentanyl is presently available in oral, tablet, sprays, patches and injectable forms. On the street the drug is typically crushed and snorted or injected via syringe. It is often mixed with heroin and sold on the street as heroin which has been “laced” with fentanyl.
Fentanyl has significant effects on the body. It can make an individual feel euphoric, sedated, drowsy and can make an individual pass out or fall asleep. An overdose of the drug may cause coma, respiratory failure and ultimately death. It has a similar effect on the body as other opioids including oxycodone and morphine.
What is a Fentanyl Charge in New Jersey? – Statute 2C:35-5
The manufacturing, distributing or dispensing fentanyl statute specifically states:
it shall be unlawful for any person knowingly or purposely:
(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or
(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.
First Degree Fentanyl Charges
When the substance is fentanyl and the amount is more than five ounces, including any adulterants in the drug, the offense will be a crime of the first degree. If an individual is convicted of first-degree possession with the intention to distribute fentanyl the court is required to sentence that person to a term of imprisonment between 10 and 20 years. Additionally, the court is required to impose a sentence which shall include the imposition of a minimum term fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. This means that if an individual is sentenced to 15 years in prison, they may not become eligible for parole for a period of five years. Additionally, a fine of up to $500,000.00 may be imposed.
Second Degree Fentanyl Charges
If an individual is convicted of possession of fentanyl with the intention to distribute in an amount of more than one-half ounce but less than five ounces, including any adulterants, the person will be guilty of a crime of the second degree. This means that the individual will face between five and ten years in state prison. Additionally, that individual will not ordinarily be eligible for probation and will be sentenced to prison.
Third Degree Fentanyl Charges
An conviction for an amount of less than one-half ounce of fentanyl will be a crime of the third degree. An individual who is convicted of third-degree possession of fentanyl with the intent to distribute will face between 3 and five years in state prison. They will also be subject to a fine of up to $75,000.00. However, an individual who is convicted of third-degree possession of fentanyl with the intent to distribute may be eligible for probation.
How We Defend Against Fentanyl Trafficking Charges
There are many defenses to the charge of manufacturing, distributing, dispensing or possessing with the intent to distribute fentanyl. Often times when an individual is charged with a fentanyl related offense, police have seized a quantity of fentanyl from the individual, their home or vehicle. In order for police to search an individual, their home or vehicle, police need sufficient legal justification to do so. Before police search a person or a vehicle, they need probable cause to believe that they will find fentanyl. If the police lack probable cause before conducting a search, the evidence that they find after the search may be suppressed by a Judge and would therefore be inadmissible in court. If the evidence is suppressed and inadmissible in court the charges may be dismissed.
If police search a home, they will typically need to secure a warrant before entering a home and searching. A warrant is applied for by sworn affidavits that are presented to a Judge. If the police do not obtain a warrant before searching an individual’s home, the evidence that they find in the home may be suppressed and the charges may be dismissed. Additionally, if the police do obtain a warrant but obtained the warrant by supplying incorrect information to the Judge who issued the warrant, the warrant may be deemed legally invalid thus making the evidence that was recovered from the home inadmissible.
What are the Penalties for Fentanyl Possession in NJ?
Pursuant to N.J.S.A. 2C:35-10 possession of fentanyl is a third-degree crime in the state of New Jersey. A conviction for third degree possession of fentanyl subjects an individual to probation, incarceration in the county jail for up to 364 days, a term in state prison between three and five years and various fines of up to $35,000.00.
The specific penalty that an individual will face for possession of fentanyl will depend on a variety of factors which include the individuals prior record, the amount of fentanyl, and the circumstances in which the fentanyl was possessed. Simple possession, meaning the fentanyl was possessed in a small amount for personal use will result in the potential penalties described above. If the individual does not have a prior record, it is likely that the individual would receive a period of probation and not face further jail time. However, if the individual was in possession of a larger amount of fentanyl and the police or prosecutor allege that the individual possessed the fentanyl with the intent to give or distribute fentanyl it to another person, the penalties can be much more severe and can include jail time.
Defenses for Possession of Fentanyl in New Jersey
There are certain defenses to a possession of fentanyl charge that may be raised. Some common defenses include challenging the reason that the police stopped the individual in the first place and or challenging the evidence that the person was actually in possession of illegal substances.
Under New Jersey law, police officers need reasonable suspicion to stop an individual and question them about any activity. Further, they need probable cause to conduct a search of a person or vehicle and or make an arrest. Often times they are required to obtain a warrant before conducting a search. If the police violate an individual’s constitutional principles, the evidence that they recover may not be used in a prosecution of the individual and the charges will likely be dismissed.
Obviously, the specific facts and circumstances will dictate whether an individual should assert the above defenses. It is therefore important to consult with an experienced criminal defense attorney who has successfully raised these constitutional defenses before. At our firm, all of our attorneys have successfully raised constitutional defenses on behalf of charged individuals and have had drug cases dismissed.