Proof for Intent to Distribute Drug Charges in New Jersey
New Jersey drug charges become substantially more serious, and the penalties substantially harsher, if you are found with enough of a controlled dangerous substance for law enforcement to conclude that you possessed drugs with the intent to sell or distribute them to others. Even obtaining drugs to share among friends can expose you to this type of serious charge.
How Prosecutors Prove Intent to Distribute Drugs in New Jersey
Under the relevant New Jersey statute, NJRS 2C:35-5, it is illegal to manufacture, distribute, dispense, or to possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance or analog of a controlled dangerous substance.
In drug distribution cases, the case against a person is rarely built on a single piece of evidence. Instead, a prosecutor will present a “totality of the circumstances,” using a collection of “factors” or “indicia” of distribution to paint a picture of a dealer, not just a user.
Here are the most common pieces of evidence prosecutors use to establish intent of drug distribution:
1. Quantity of Drugs
This is the most obvious factor. If the amount of the drug you allegedly possessed is more than what an average person would use for themselves in a reasonable period, they will argue it was meant for sale. For example, possessing two grams of cocaine might be seen as personal use, while possessing two ounces (56 grams) is almost always treated as intent to distribute.
2. Packaging
This is a very strong factor for the prosecution.
- Evidence of Distribution: Drugs packaged in multiple, small, individual baggies, vials, or foil wraps.
- Evidence of Personal Use: A single bag or container. If police find one large bag of marijuana, it could be for personal use. If they find 20 small dime bags of marijuana, they will argue it’s for sale.
3. “Tools of the Trade” (Paraphernalia)
There’s a big difference between paraphernalia for using drugs and paraphernalia for selling them.
- Evidence of Distribution:
- Digital scales (to weigh product)
- Packaging materials (empty baggies, heat sealers)
- Cutting agents (substances used to “stretch” a drug, like baking soda)
- Evidence of Personal Use:
- Pipes, bongs, rolling papers
- Needles or spoons (for injection) Ironically, having “user” paraphernalia can sometimes help your attorney argue that the drugs were for personal consumption.
4. Large Amounts of Cash
Possessing a significant amount of cash, especially in small denominations (like $10s and $20s), is a classic sign of drug sales. The prosecution will argue this cash constitutes the proceeds of recent transactions.
5. Ledgers or “Pay/Owe Sheets”
Any written record of names, numbers, or dollar amounts can be devastating. These “pay/owe sheets” are seen as direct proof of a drug-dealing operation, tracking who has paid and who still owes money.
6. Text Messages and Phone Records
Your phone is often the prosecution’s best witness. Messages that seem harmless to you can be interpreted as code for drug deals.
- “You good?”
- “Can I get a 20?”
- “Meet me at the usual spot.” A high volume of short, brief calls and texts with many different people is also considered suspicious.
7. Possession of Firearms
If a firearm is found near the drugs, cash, or you, the prosecution will argue it was used to protect the drug operation. This not only shows intent but can add separate, serious weapons charges to your case.
8. Expert Testimony
The prosecutor will almost always have a police officer (often a narcotics detective) testify as an “expert witness.” This officer will explain to the jury that, based on their training and experience, the combination of evidence found (e.g., the scale, the 15 baggies, and the $500 in small bills) is “consistent with drug distribution” and “inconsistent with personal use.”
Possible Defenses in a Proof With Intent to Distribute Case
Seeing the list above can be terrifying, but evidence is not an automatic conviction. A skilled defense attorney’s job is to challenge every piece of the state’s case. A dismissal is often the primary goal.
Here are the most common paths to getting a case dismissed:
1. Challenging the Stop and Search (A “Motion to Suppress”)
This is the most powerful and common way to win a drug case. The Fourth Amendment of the U.S. Constitution protects you from unreasonable searches and seizures.
- The Stop: Did the police have a legal reason (reasonable suspicion) to pull you over in your car? Did they have a reason to stop you on the street? If the initial stop was illegal, everything found after that (the “fruit of the poisonous tree”) can be thrown out.
- The Search: Did the police have a search warrant? If not, did they have a valid, legal exception to search you, your car, or your home? (e.g., probable cause, search incident to arrest, consent).
If your lawyer can prove the police violated your 4th Amendment rights, they will file a Motion to Suppress Evidence. If a judge grants this motion, the drugs, cash, and scales are excluded from the case. Without evidence, the prosecutor has no case and is forced to dismiss it.
2. Challenging “Possession”
The prosecutor must prove you “possessed” the drugs. This is simple if they were in your pocket (actual possession). It’s much harder if they were found in a shared space, like a car with multiple passengers or a living room in an apartment with roommates (constructive possession).
To prove constructive possession, the state must show you:
- Knew the drugs were there; AND
- Had the intent and ability to control them.
If the drugs were found under a passenger seat and you were the driver, your attorney can argue you had no idea they were there and they belonged to the passenger. If the link between you and the drugs is weak, the case can be dismissed.
3. Challenging the “Intent” (Arguing for Simple Possession)
This isn’t a full dismissal, but it’s a “win” that can save you from a felony conviction and prison. Your attorney can argue that the evidence doesn’t actually prove intent to sell.
- The Quantity: “My client is a heavy user and buys in bulk because it’s cheaper.”
- The Scale: “My client uses the scale to portion his own doses to manage his addiction.”
- The Cash: “My client just cashed his paycheck and was on his way to pay rent, which is why he had $800 in cash.”
The goal is to create reasonable doubt about your intent, forcing the prosecutor to reduce the charge to simple possession, which has far less severe penalties and may even be eligible for diversion programs (like drug court).
Legal Consequences if Convicted of Intent to Distribute CDS
Possession with intent to distribute controlled dangerous substances like heroin, meth, cocaine, and even marijuana, is typically an indictable offense (an offense similar to a felony in other states). Indictable offense cases are handled in Superior Court, not in municipal court, and the stiff penalties involved can vary based on the type of drug found and the quantity of the drug in question. Penalties can range from 18 months of incarceration to 20 years, from tens of thousands of dollars in fines to hundreds of thousands.
Need a Drug Defense Lawyer in New Jersey?
It goes without saying that if you are charged with possession of CDS with intent to distribute, you should consult a qualified drug defense attorney at the earliest possible moment. Getting someone who knows the law inside and out to review your case is the first vital step toward achieving a positive outcome. Call (732) 659-9600 for a free case review of your drug distribution charges in. A drug attorney at our criminal defense firm in New Jersey, can provide a thorough explanation of the possible defenses that may apply given the unique facts of your case.
