In the state of New Jersey, it’s illegal to possess any amount of heroin. Heroin possession can
result in up to five years in prison. The fine attendant with Third Degree Heroin Possession
charge is up to $35,000. In the event of a conviction, a person can also face a mandatory six
month drivers license suspension.
Simple Possession vs. Constructive Possession
When it comes to having heroin, here are two main categories of possession: simple and
Simple possession is when a person has knowledge that they have heroin in their pocket. It’s
defined by the awareness that a person who’s carrying heroin has that not only do they have a
drug on them, but that it’s an illegal one.
If a person is holding a bag for a friend but didn’t know that that bag had heroin, they may be
able to escape prosecution simply because they lacked knowledge of what was in the bag.
Constructive possession, however, is defined as possession that isn’t necessarily physical, but
one where the drug can still be linked to the person in some way. For example, if heroin is found
in a hotel room where the individual was staying, then that would be considered constructive
possession. If authorities find a stash of heroin in a drug dealer’s neighbor’s apartment, and they
have evidence that the dealer gave him that heroin, then the dealer would be charged with
constructive possession. Once again, the drug may not be physically on them, as with simple
possession, but the person either had the drug in the past or is keeping it in a location that can
still be linked to them in some way.
Defenses to Heroin Possession
If the person who has the heroin didn’t know they had the heroin in their possession (i.e., they
live with a person who does heroin, or they are unknowingly holding it for a friend), then they
can avoid a court date. This is known as a ‘lack of knowledge’ defense.
Sometimes a court will try to establish a constructive possession claim, in which case the
defendant’s attorney can use a ‘lack of power and intent to control’ argument. For instance, if
you pick up a friend and that friend leaves the car to buy heroin from someone, the defendant
who is accused of having heroin in his car can say he lacked power and intent to control the
heroin placed in his vicinity.
Federal Offenses and State Offenses