H. SCOTT AALSBERG, ESQ., P.C.
"The Not Guilty Attorney"
"The Not Guilty Attorney"
Possession of Prescription Drugs Not Prescribed to You
| H. SCOTT AALSBERG, ESQ., P.C. ATTORNEYS AT LAW The Aalsberg Building 39 Milltown Road, East Brunswick, N.J. 08816 1-800-9-RIGHTS or (732) 257-5040 EXPERIENCE -- INTEGRITY -- RESULTS |
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8.Prescription legend drugs. a. A person who knowingly:
(1)distributes 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;
(2)distributes for pecuniary gain or possesses or has under his control with intent to distribute for pecuniary gain 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 guilty of a crime of the fourth degree;
(3)distributes or possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of at least five but fewer
than 100 dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe
medication is guilty of a crime of the third degree. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $200,000 may be imposed; or
(4)distributes or possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of 100 or more dosage
units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a
crime of the second degree. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $300,000 may be imposed.
Notwithstanding the above, a violation of paragraph (1) or (3) of this subsection shall be deemed a de minimis infraction subject to dismissal pursuant to N.J.S. 2C:2-11 if
the person demonstrates that the conduct involved no more than six dosage units distributed within a 24-hour period, that the prescription legend drug or stramonium
preparation was lawfully prescribed for or administered to that person by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe
medication, and that the person intended for the amount he distributed to be solely for the recipient's personal use.
b.A person who uses any prescription legend drug or stramonium preparation for a purpose other than treatment of sickness or injury as lawfully prescribed or
administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person.
c.A defendant may be convicted for a violation of subsection b. if the State proves that the defendant manifested symptoms or reactions caused by the use of prescription
legend drugs or stramonium preparation. The State need not prove which specific prescription legend drug or stramonium preparation the defendant used.
d.A person who obtains or attempts to obtain possession of a prescription legend drug or stramonium preparation by forgery or deception is guilty of a crime of the fourth
degree. Nothing in this section shall be deemed to preclude or limit a prosecution for theft as defined in chapter 20 of Title C of the New Jersey Statutes.
e.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; or
(2)a prescription legend drug or stramonium preparation in an amount of five or more dosage units unless lawfully prescribed or administered by a licensed physician,
veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the fourth degree.
Notwithstanding the above, a violation of this subsection 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.
f.Where the degree of the offense for violation of this section depends on the number of dosage units of the prescription legend drug or stramonium preparation, the
number of dosage units involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the number of dosage units involved in individual
acts of distribution or possession with intent to distribute may be aggregated in determining the grade of the offense, whether distribution is to the same person or several
persons, provided that each individual act of distribution or possession with intent to distribute was committed within the applicable statute of limitations.
g.Subsections a. and e. of this section shall not apply to: a licensed pharmacy, licensed pharmacist, researcher, wholesaler, distributor, manufacturer, warehouseman or
his representative acting within the line and scope of his employment; a physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication; a
nurse acting under the direction of a physician; or a common carrier or messenger when transporting such prescription legend drug or stramonium preparation in the same
unbroken package in which the prescription legend drug or stramonium preparation was delivered to him for transportation.
L.1999,c.90,s.8; amended 2005, c.205, s.2.
2C:35-11 Imitation controlled dangerous substances; distribution, possession, manufacture, etc.; penalties
2C:35-11. Imitation controlled dangerous substances; distribution, possession, manufacture, etc.; penalties.
a. It is unlawful for any person to distribute or to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance or
controlled substance analog:
(1) Upon the express or implied representation to the recipient that the substance is a controlled dangerous substance or controlled substance analog; or
(2) Upon the express or implied representation to the recipient that the substance is of such nature, appearance or effect that the recipient will be able to distribute or use
the substance as a controlled dangerous substance or controlled substance analog; or
(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance or controlled substance analog.
Any of the following shall constitute prima facie evidence of such circumstances:
(a) The substance was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances or controlled substance analogs.
(b) The distribution or attempted distribution of the substance was accompanied by an exchange of or demand for money or other thing as consideration for the
substance, and the value of the consideration exceeded the reasonable value of the substance.
(c) The physical appearance of the substance is substantially the same as that of a specific controlled dangerous substance or controlled substance analog.
b. It is unlawful for any person to manufacture, compound, encapsulate, package or imprint any substance which is not a controlled dangerous substance, controlled
substance analog or any combination of such substances, other than a prescription drug, with the purpose that it resemble or duplicate the physical appearance of the
finished form, package, label or imprint of a controlled dangerous substance or controlled substance analog.
c. In any prosecution under this section, it shall not be a defense that the defendant mistakenly believed a substance to be a controlled dangerous substance or controlled
substance analog.
d. A violation of this section is a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $200,000.00 may be
imposed.
e. The provisions of this section shall not be applicable to (1) practitioners or agents, servants and employees of practitioners dispensing or administering noncontrolled
substances to patients on behalf of practitioners in the normal course of their business or professional practice; and (2) persons who manufacture, process, package,
distribute or sell noncontrolled substances to practitioners for use as placebos in the normal course of their business, professional practice or research or for use in
Federal Food and Drug Administration investigational new drug trials.
L.1987, c.106, s.1; amended 1997, c.181, s.7.
2C:35-12. Waiver of Mandatory Minimum and Extended Terms.
Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible
for parole, a mandatory extended term which includes a period of parole ineligibility, or an anti-drug profiteering penalty pursuant to section 2 of P.L.1997, c.187
(N.J.S.2C:35A-1 et seq.), the court upon conviction shall impose the mandatory sentence or anti-drug profiteering penalty unless the defendant has pleaded guilty
pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a
lesser sentence, period of parole ineligibility or anti-drug profiteering penalty. The negotiated plea or post-conviction agreement may provide for a specified term of
imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, a specified anti-drug
profiteering penalty, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, lesser period of parole ineligibility, lesser
fine or lesser anti-drug profiteering penalty than that expressly provided for under the terms of the plea or post-conviction agreement.
L.1987, c.106, s.1; amended 1997, c.187, s.1.
(1)distributes 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;
(2)distributes for pecuniary gain or possesses or has under his control with intent to distribute for pecuniary gain 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 guilty of a crime of the fourth degree;
(3)distributes or possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of at least five but fewer
than 100 dosage units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe
medication is guilty of a crime of the third degree. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $200,000 may be imposed; or
(4)distributes or possesses or has under his control with intent to distribute a prescription legend drug or stramonium preparation in an amount of 100 or more dosage
units unless lawfully prescribed or administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a
crime of the second degree. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $300,000 may be imposed.
Notwithstanding the above, a violation of paragraph (1) or (3) of this subsection shall be deemed a de minimis infraction subject to dismissal pursuant to N.J.S. 2C:2-11 if
the person demonstrates that the conduct involved no more than six dosage units distributed within a 24-hour period, that the prescription legend drug or stramonium
preparation was lawfully prescribed for or administered to that person by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe
medication, and that the person intended for the amount he distributed to be solely for the recipient's personal use.
b.A person who uses any prescription legend drug or stramonium preparation for a purpose other than treatment of sickness or injury as lawfully prescribed or
administered by a licensed physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication is a disorderly person.
c.A defendant may be convicted for a violation of subsection b. if the State proves that the defendant manifested symptoms or reactions caused by the use of prescription
legend drugs or stramonium preparation. The State need not prove which specific prescription legend drug or stramonium preparation the defendant used.
d.A person who obtains or attempts to obtain possession of a prescription legend drug or stramonium preparation by forgery or deception is guilty of a crime of the fourth
degree. Nothing in this section shall be deemed to preclude or limit a prosecution for theft as defined in chapter 20 of Title C of the New Jersey Statutes.
e.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; or
(2)a prescription legend drug or stramonium preparation in an amount of five or more dosage units unless lawfully prescribed or administered by a licensed physician,
veterinarian, dentist or other practitioner authorized by law to prescribe medication is guilty of a crime of the fourth degree.
Notwithstanding the above, a violation of this subsection 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.
f.Where the degree of the offense for violation of this section depends on the number of dosage units of the prescription legend drug or stramonium preparation, the
number of dosage units involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the number of dosage units involved in individual
acts of distribution or possession with intent to distribute may be aggregated in determining the grade of the offense, whether distribution is to the same person or several
persons, provided that each individual act of distribution or possession with intent to distribute was committed within the applicable statute of limitations.
g.Subsections a. and e. of this section shall not apply to: a licensed pharmacy, licensed pharmacist, researcher, wholesaler, distributor, manufacturer, warehouseman or
his representative acting within the line and scope of his employment; a physician, veterinarian, dentist or other practitioner authorized by law to prescribe medication; a
nurse acting under the direction of a physician; or a common carrier or messenger when transporting such prescription legend drug or stramonium preparation in the same
unbroken package in which the prescription legend drug or stramonium preparation was delivered to him for transportation.
L.1999,c.90,s.8; amended 2005, c.205, s.2.
2C:35-11 Imitation controlled dangerous substances; distribution, possession, manufacture, etc.; penalties
2C:35-11. Imitation controlled dangerous substances; distribution, possession, manufacture, etc.; penalties.
a. It is unlawful for any person to distribute or to possess or have under his control with intent to distribute any substance which is not a controlled dangerous substance or
controlled substance analog:
(1) Upon the express or implied representation to the recipient that the substance is a controlled dangerous substance or controlled substance analog; or
(2) Upon the express or implied representation to the recipient that the substance is of such nature, appearance or effect that the recipient will be able to distribute or use
the substance as a controlled dangerous substance or controlled substance analog; or
(3) Under circumstances which would lead a reasonable person to believe that the substance is a controlled dangerous substance or controlled substance analog.
Any of the following shall constitute prima facie evidence of such circumstances:
(a) The substance was packaged in a manner normally used for the unlawful distribution of controlled dangerous substances or controlled substance analogs.
(b) The distribution or attempted distribution of the substance was accompanied by an exchange of or demand for money or other thing as consideration for the
substance, and the value of the consideration exceeded the reasonable value of the substance.
(c) The physical appearance of the substance is substantially the same as that of a specific controlled dangerous substance or controlled substance analog.
b. It is unlawful for any person to manufacture, compound, encapsulate, package or imprint any substance which is not a controlled dangerous substance, controlled
substance analog or any combination of such substances, other than a prescription drug, with the purpose that it resemble or duplicate the physical appearance of the
finished form, package, label or imprint of a controlled dangerous substance or controlled substance analog.
c. In any prosecution under this section, it shall not be a defense that the defendant mistakenly believed a substance to be a controlled dangerous substance or controlled
substance analog.
d. A violation of this section is a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $200,000.00 may be
imposed.
e. The provisions of this section shall not be applicable to (1) practitioners or agents, servants and employees of practitioners dispensing or administering noncontrolled
substances to patients on behalf of practitioners in the normal course of their business or professional practice; and (2) persons who manufacture, process, package,
distribute or sell noncontrolled substances to practitioners for use as placebos in the normal course of their business, professional practice or research or for use in
Federal Food and Drug Administration investigational new drug trials.
L.1987, c.106, s.1; amended 1997, c.181, s.7.
2C:35-12. Waiver of Mandatory Minimum and Extended Terms.
Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible
for parole, a mandatory extended term which includes a period of parole ineligibility, or an anti-drug profiteering penalty pursuant to section 2 of P.L.1997, c.187
(N.J.S.2C:35A-1 et seq.), the court upon conviction shall impose the mandatory sentence or anti-drug profiteering penalty unless the defendant has pleaded guilty
pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a
lesser sentence, period of parole ineligibility or anti-drug profiteering penalty. The negotiated plea or post-conviction agreement may provide for a specified term of
imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, a specified anti-drug
profiteering penalty, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, lesser period of parole ineligibility, lesser
fine or lesser anti-drug profiteering penalty than that expressly provided for under the terms of the plea or post-conviction agreement.
L.1987, c.106, s.1; amended 1997, c.187, s.1.
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