New Jersey Drug Distribution Charges
The State does not need to prove that money changed hands, and it does not need to catch you in the middle of a sale. Evidence such as packaging, scales, or the quantity of drugs can be used to turn a possession case into an intent to distribute case. If you are facing CDS charges in New Jersey, The Tormey Law Firm can review the evidence and explain your options. Call (201)-556-1570 for a free consultation.
Drug Distribution Penalties in New Jersey at a Glance
The table below summarizes how N.J.S.A. 2C:35-5(b) grades common distribution offenses. Quantities include any adulterants or dilutants.
| Substance | Quantity | Degree | Maximum Fine |
|---|---|---|---|
| Heroin or cocaine | 5 ounces or more | First | $500,000 |
| Heroin or cocaine | 1/2 ounce or more but less than 5 ounces | Second | $150,000 |
| Heroin or cocaine | Less than 1/2 ounce | Third | $75,000 |
| Other Schedule I or II narcotic drugs, including fentanyl | 1 ounce or more | Second | $150,000 |
| Other Schedule I or II narcotic drugs, including fentanyl | Less than 1 ounce | Third | $75,000 |
| LSD or PCP | LSD: 100 milligrams or more PCP: 10 grams or more |
First | $500,000 |
| LSD or PCP | Less than the amounts above | Second | $150,000 |
| Methamphetamine | 5 ounces or more | First | $300,000 |
| Methamphetamine | 1/2 ounce or more but less than 5 ounces | Second | $150,000 |
| Methamphetamine | Less than 1/2 ounce | Third | $75,000 |
| Marijuana or hashish | Marijuana: 25 pounds or more, or 50 or more plants Hashish: 5 pounds or more |
First | $300,000 |
| Marijuana or hashish | Marijuana: 5 pounds or more but less than 25 pounds, or 10 to 49 plants Hashish: 1 pound or more but less than 5 pounds |
Second | $150,000 |
| Marijuana or hashish | Marijuana: more than 1 ounce but less than 5 pounds Hashish: more than 5 grams but less than 1 pound |
Third | $25,000 |
| Marijuana or hashish | Marijuana: 1 ounce or less Hashish: 5 grams or less |
Written warning for a first offense; fourth degree for a later offense | See below |
| Any other Schedule I, II, III, or IV substance | Any amount | Third | $25,000 |
| Any Schedule V substance | Any amount | Fourth | $25,000 |
In general, a first degree crime carries 10 to 20 years in prison, a second degree crime carries 5 to 10 years, a third degree crime carries 3 to 5 years, and a fourth degree crime carries up to 18 months.
A conviction also carries a mandatory Drug Enforcement and Demand Reduction (DEDR) penalty under N.J.S.A. 2C:35-15: $3,000 for a first degree crime, $2,000 for a second degree crime, $1,000 for a third degree crime, and $750 for a fourth degree crime. This penalty is added to any fine imposed by the court.
In New Jersey, drugs are classified in the New Jersey Drug Schedules, which are important when grading a distribution offense. However, the schedules are not the only factor. Certain drugs are subject to very specific grading under N.J.S.A. 2C:35-5, as explained below.
Heroin and Cocaine Distribution
Heroin and cocaine are subject to the same grading. Offenses involving 5 ounces or more are first degree crimes, punishable by 10 to 20 years in prison and a fine of up to $500,000. In addition, the sentence must include a minimum term of 1/3 to 1/2 of the sentence imposed, during which the person is not eligible for parole.
When the quantity is 1/2 ounce or more but less than 5 ounces, the offense is a second degree crime punishable by 5 to 10 years in prison and a fine of up to $150,000. Offenses involving less than 1/2 ounce are third degree crimes, which may result in a prison term of 3 to 5 years and a fine of up to $75,000.
Distributing Other Schedule I and II Narcotic Drugs
If you are accused of distributing a narcotic drug in Schedule I or II that is not specifically covered elsewhere in N.J.S.A. 2C:35-5, the grading is as follows:
- 1 ounce or more: second degree crime
- Less than 1 ounce: third degree crime, with a fine of up to $75,000
This is the tier that currently applies to fentanyl. Lawmakers have proposed increasing fentanyl penalties to match heroin and cocaine, but those bills have not changed the law as of this update.
Distributing LSD or PCP
LSD and PCP have their own rules. An offense involving 100 milligrams or more of LSD, or 10 grams or more of PCP, is a first degree crime. It carries the same mandatory minimum term and maximum fine as a first degree heroin or cocaine charge. If the quantity is lower or undetermined, the offense is a second degree crime.
Methamphetamine Distribution
Distributing methamphetamine, or possessing it with intent to distribute, is a first degree crime if the quantity is 5 ounces or more, with a fine of up to $300,000. If the amount is 1/2 ounce or more but less than 5 ounces, the crime is of the second degree. If the amount is less than 1/2 ounce, it is a third degree crime with a fine of up to $75,000.
Selling and Growing Marijuana
New Jersey has legalized and regulated adult-use cannabis, but unlawful distribution of marijuana and hashish is still addressed in N.J.S.A. 2C:35-5. The law changed in 2021, so older information on this subject may be out of date.
A first degree charge applies to 25 pounds or more of marijuana, 50 or more marijuana plants, or 5 pounds or more of hashish, with a fine of up to $300,000. A second degree charge applies to 5 pounds or more but less than 25 pounds of marijuana, 10 to 49 plants, or 1 pound or more but less than 5 pounds of hashish.
Under the current law, an offense involving more than 1 ounce but less than 5 pounds of marijuana, or more than 5 grams but less than 1 pound of hashish, is a third degree crime with a fine of up to $25,000. An offense involving 1 ounce or less of marijuana, or 5 grams or less of hashish, results in a written warning for a first offense. A second or subsequent offense is a fourth degree crime.
Other Controlled Dangerous Substances
Distribution of any other controlled dangerous substance in Schedule I, II, III, or IV, or its analog, is a third degree crime with a fine of up to $25,000. Depending on the substance, this can include certain prescription drugs. Any Schedule V substance is a fourth degree crime with a fine of up to $25,000.
What Does the State Have to Prove in a Drug Distribution Case?
To convict you of drug distribution in New Jersey, the prosecution must prove beyond a reasonable doubt that the item is a controlled dangerous substance or CDS analog, that you acted knowingly or purposely, and that you manufactured, distributed, or dispensed the drug or possessed it with intent to distribute it. Here are the key terms you need to know as defined in N.J.S.A. 2C:35-2:
- “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance or controlled substance analog, whether or not there is an agency relationship.
- “Dispense” means to deliver a controlled dangerous substance or controlled substance analog to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
- “Distribute” means to deliver other than by administering or dispensing a controlled dangerous substance or controlled substance analog.
- “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled dangerous substance or controlled substance analog, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
Notably, you do not need to benefit financially to be convicted of a drug distribution offense. Simply delivering a drug to another person, transferring it, or sharing it with a friend can constitute a violation under New Jersey law.
How Prosecutors Try to Prove Intent to Distribute
Many times, law enforcement officials will use drug packaging materials to support the contention that you intended to distribute a drug. If they find baggies, cutting agents, scales, measuring devices, or other items that may be used to manufacture or package drugs, you may be charged with intent to distribute CDS. Cash, text messages, and the quantity of drugs may also be used as evidence.
Quantity can also be added together. If the indictment or accusation says so, amounts from separate acts of distribution or possession with intent may be combined to set the degree of the crime, as long as each act falls within the statute of limitations.
Charges and Factors That Can Increase Your Exposure
- School zones: Distribution or intent to distribute within 1,000 feet of school property or on a school bus is a separate offense under N.J.S.A. 2C:35-7.
- Parks, public housing, and public buildings: Distribution or intent to distribute within 500 feet of these locations is generally a second degree crime under N.J.S.A. 2C:35-7.1.
- Distribution to a minor or pregnant person: Under N.J.S.A. 2C:35-8, an adult who distributes to a person 17 or younger or to a pregnant person can face twice the otherwise authorized prison term, fine, and penalty if the prosecutor applies for the enhancement.
- Using a juvenile: Employing a juvenile in a drug distribution scheme is a second degree crime under N.J.S.A. 2C:35-6, with a mandatory period of parole ineligibility.
- Drug-induced death: Under N.J.S.A. 2C:35-9, a person who distributes certain drugs can face a first degree strict liability charge if someone dies from using them.
- Drug networks: Allegations of organizing or financing a drug operation can lead to a charge for being a leader of a narcotics trafficking network.
- Prior drug convictions: A prior distribution conviction can expose a person to an extended term or mandatory minimum sentencing.
How to Fight Drug Distribution Charges in New Jersey
Every case depends on its facts, and an arrest does not mean the State can prove its case. Depending on the evidence, a defense may focus on:
- The stop or search: If police lacked legal grounds for a stop, search, or warrant, the defense can seek suppression of the evidence.
- Intent to distribute: Personal use is not distribution. Challenging the evidence of intent may reduce the charge to simple possession of CDS.
- Knowledge and control: The State must prove you knowingly possessed the drugs, which can be difficult when they were found in a shared car or home.
- Lab testing and weight: The State must prove what the substance is and, when the degree depends on quantity, how much of it there was.
- Location evidence: A school zone or park charge depends on proof of where the alleged conduct took place.
- Informant credibility: When a case relies on a confidential informant, the reliability of that source can be challenged.
Alternatives to Prison for Drug Distribution Charges
A conviction is not the only possible outcome. Depending on the charge and your history, options may include:
- Pre-Trial Intervention (PTI): PTI may be an option for some first-time defendants. Eligibility depends on the charge and the circumstances, and acceptance is not automatic. See our page on PTI eligibility.
- Recovery Court: Formerly called Drug Court, this program combines treatment with supervision for eligible defendants with a substance use disorder.
- Plea negotiations: A lesser charge or reduced sentence may be possible. In drug cases with mandatory minimum terms, these negotiations may involve the Brimage Guidelines.
Frequently Asked Questions About Drug Distribution Charges in New Jersey
What is the difference between possession and possession with intent to distribute?
Simple possession means having a controlled dangerous substance for personal use. Possession with intent to distribute means the State claims you planned to transfer the drugs to someone else. The substance may be the same, but intent to distribute generally carries more serious consequences under N.J.S.A. 2C:35-5.
How much of a drug is considered intent to distribute in New Jersey?
For most cases, there is no single amount that automatically proves intent to distribute. Prosecutors may rely on the quantity along with packaging, scales, cash, messages, and other evidence. The quantity also affects the degree of the charge.
What is the penalty under N.J.S.A. 2C:35-5(b)?
It depends on the substance and the quantity. Penalties range from a written warning for a first offense involving a small amount of marijuana to a first degree crime carrying 10 to 20 years in prison. Fines can reach $500,000 for certain offenses.
Can I be charged with distribution if I did not sell anything?
Yes. Distribution does not require a sale or a profit. A transfer to another person, and in some cases possession with intent to transfer, can be enough. A person may also be charged based on what police found rather than an observed transaction.
Is drug distribution a felony in New Jersey?
New Jersey does not use the term felony in its criminal code. Most distribution offenses are indictable crimes of the first, second, third, or fourth degree, which are comparable to what other states call felonies.
Will I go to prison for a first offense of drug distribution?
Not necessarily, but the risk depends on the degree of the charge. There is generally a presumption of incarceration for first and second degree crimes. A person with no prior record charged with a third or fourth degree crime may benefit from a presumption of non-incarceration, although some charges and circumstances can change that result.
Can a drug distribution charge be reduced to possession?
It can be, depending on the evidence and negotiations with the prosecutor. If the State’s proof of intent is weak, or if evidence is suppressed, the charge may be downgraded or dismissed. No attorney can promise a specific result.
Speak With a New Jersey Drug Distribution Lawyer
If you have been arrested, are under investigation, or are facing charges for distribution of drugs in New Jersey, speak with an experienced criminal defense lawyer as soon as possible. Our team includes attorneys with prosecutorial experience who understand how these cases are built and where they can be challenged. The attorneys at The Tormey Law Firm represent clients in drug cases in courts throughout New Jersey. For a free consultation about your drug distribution case, contact us today at (201)-556-1570.
Legally Reviewed By:
Travis J. Tormey, Esq.
Criminal Defense Attorney | New Jersey
