Under the Influence of Drugs Lawyer in Jersey City & Hudson County
Reviewed by William A. Proetta, Esq. · Updated
New Jersey makes it an offense simply to use a controlled dangerous substance or to be under its influence, even if no drugs are found on you. Under N.J.S.A. 2C:35-10(b), this is a disorderly persons offense, not an indictable crime, and despite how the charge is often described it is not limited to public places. Cocaine, heroin, fentanyl, methamphetamine and pills taken without a prescription are all covered. Marijuana and hashish are not. In Hudson County, the complaint is almost always heard in the municipal court of the town where it was written. William Proetta Criminal Law defends clients facing under the influence complaints in Jersey City, Hoboken and neighboring towns from our Jersey City office, with over 15 years of criminal trial experience. Call (201) 793-8018, 24/7. Se habla español.
Under the Influence and Related Charges
| Charge | Statute | Usual grade | Where it is heard |
|---|---|---|---|
| Using or being under the influence of a CDS | 2C:35-10(b) | Disorderly persons | Municipal Court |
| Drug paraphernalia | 2C:36-2 | Disorderly persons | Municipal Court |
| Drug possession | 2C:35-10(a)(1) | 3rd degree | Superior Court |
| DWI involving drugs | 39:4-50 | Traffic offense | Municipal Court |
Proving Someone Was Under the Influence
The prosecutor does not have to identify a specific drug, but must prove beyond a reasonable doubt, through physical and physiological symptoms, that you used or were under the influence of a controlled substance. The usual proof is an officer describing pupils, speech, balance and behavior, sometimes backed by a Drug Recognition Expert evaluation and a blood or urine sample. None of those is automatic. Bloodshot eyes and unsteady footing have dozens of innocent causes, a DRE must follow a structured protocol, and a lab result is only as good as the collection and chain of custody behind it. Taking your own medication as prescribed is not a crime.
What a Conviction Carries
The maximum penalties are up to six months in the county jail and a fine of up to $1,000. The judge must add a $500 Drug Enforcement and Demand Reduction penalty and a lab fee, and the conviction brings possible driver’s license suspension. Jail on a first offense is uncommon, but the larger cost is a drug offense on a criminal record that shows up on background checks for jobs, housing and licensing.
Conditional Discharge and the Overdose Prevention Act
Most people charged with this offense for the first time can apply for conditional discharge, a one-time program reserved for disorderly persons drug charges. You are placed under supervision for a period, and if you complete it the complaint is dismissed. Under New Jersey law it is not a conviction. Separately, when police learned of the drug use only because someone called for help during an overdose, the Overdose Prevention Act shields both the caller and the person who overdosed from use charges based on that evidence. We look at the dispatch records early in any case that began with a 911 call.
Arrest and Pretrial Release
This offense is normally written on a summons with a court date, and the person is released at the scene or from the station. If it is filed alongside a third-degree possession charge, the arrest may go through Central Judicial Processing, but release is the usual outcome for a disorderly persons complaint on its own. See our pretrial release and detention guide and our page on Central Judicial Processing in Hudson County.
Immigration Consequences
A disorderly persons offense is not minor for immigration purposes: a conviction for using a controlled substance can make a lawful permanent resident deportable, and since marijuana is excluded from this statute, the federal marijuana exception will almost never help. Conditional discharge can be granted before or after a guilty plea. If it is entered on a plea, federal authorities may count it as a conviction, so how it is entered matters. Admitting drug use to an officer or a doctor can also create inadmissibility problems for a green card application. We review the immigration side before any plea; see our immigration consequences and immigration-safe plea strategy pages.
Defending an Under the Influence Complaint
- Alternative explanations. Diabetes, head injuries, exhaustion, alcohol and lawful medication can all produce the symptoms officers describe.
- The DRE process. We request the evaluator’s training records and the full evaluation form, and test whether each step was performed.
- Toxicology. Blood and urine evidence needs a lawful basis to collect, a documented chain of custody and a qualified analyst.
- Prescriptions. Pharmacy and prescriber records can defeat the charge outright.
- Overdose calls. Evidence gathered because someone sought medical help may be barred.
Hudson County Municipal Courts and Under the Influence Charges
These complaints are heard locally in municipal courts serving Jersey City, Hoboken, Kearny, Union City and Bayonne, among others, where a municipal prosecutor presents the case to a judge without a jury. They often arise from ambulance calls, late-night stops in Jersey City and Hoboken, and car stops where a companion DWI is also written. A municipal court case can be resolved in a few appearances, and conditional discharge applications are handled right in that courtroom. When the complaint is joined with an indictable possession charge, it travels with that charge to the Superior Court, and it comes back to municipal court if the indictable count is downgraded. See our Jersey City, Hoboken, Kearny, Union City and Bayonne drug charge pages.
Jersey City Under the Influence FAQs
Is being high on drugs a criminal offense in New Jersey?
It is a disorderly persons offense under N.J.S.A. 2C:35-10(b). That is below the level of an indictable crime, but a conviction still leaves a drug offense on your record.
Can I be charged for being high on marijuana?
Not under this statute. Marijuana and hashish are specifically excluded, although driving while impaired by marijuana can still be charged as a DWI.
Am I eligible for a conditional discharge?
Usually, if you have no prior drug conviction and have never had a conditional discharge or PTI before. Successful completion ends with the complaint being dismissed.
Can I get both a DWI and an under the influence charge?
Yes. A drugged-driving DWI under the motor vehicle laws and this offense are separate charges, and both can be written from the same stop.
Which court handles an under the influence charge from Hoboken?
Hoboken Municipal Court, unless it was filed together with an indictable charge such as possession, in which case it may begin in the Superior Court in Jersey City.
I am not a citizen. Should I just take the conditional discharge?
Not without advice first. Conditional discharge can be granted either before or after a guilty plea, and if a plea is entered, federal immigration law may treat it as a drug conviction even after dismissal. How the program is entered matters. There may be other ways to resolve the complaint that carry less risk.
Talk to a Hudson County Municipal Court Drug Lawyer
A dismissal or a completed conditional discharge keeps this offense from following you. Call our Jersey City office at (201) 793-8018 for a free, confidential case review, 24/7. Se habla español.