Articles Posted in Drug Possession

The United States Supreme Court recently decided an important case for non-citizens, lawfully present in the United State, with multiple simple drug possession convictions. In CARACHURI-ROSENDO v. HOLDER, the Court shifted course, and held that a second conviction for simple possession is not necessarily an aggravated felony, and does not necessarily preclude immigration relief , i.e cancellation.

To best illustrate the essence of the holding, a hypothetical is helpful:

In 2003, John, who is in the U.S. legally, is convicted of a marijuana crime in the “state pretend” court. the maximum penalty he could face on the offense is 6 months in prison. Therefore, it is not an aggravated felony under federal law. the judge in state court sentences him to ten days in jail.

I represented a defendant who was initially charged with possession of heroine. Heroine possession is a third degree indictable criminal offense. After extensive discussion with the Essex County Prosecutor’s Office, the charge was remanded to the municipal court in Newark where my client now faced a drug paraphernalia complaint.

Having a charge of this magnitude remanded to the municipal court was already a victory, but this particular offense (drug paraphernalia), like most drug related convictions, carries the possibility of a six month loss of license, and the minimum mandatory statutory penalties that can lead to thousand of dollars in fines.The only way to avoid the loss of license is to convince the court that taking the defendant’s license would create an undue hardship. You may be thinking, of course taking my license would create an undue hardship. But the proofs required to avoid the suspension are more stringent than one would imagine.

I avoided having to deal with this issue by negotiating an even more advantageous plea agreement. The state agreed to amend the paraphernalia charge to an offense called loitering with the intent to purchase cds. The difference between this offense and paraphernalia is that loitering is not on an offense under chapter 35. It is a disorderly persons offense under NJSA 2C:33-2.1. The biggest difference being there is no loss of license, also the fines and statutory penalties are substantially reduced.

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