Brimage Guidelines: Mandatory Periods of Parole Ineligibility ("Stip Time") for Certain Drug Crimes

In State v. Brimage, 153 N.J. 1 (1998), the New Jersey Supreme Court was called upon to address the constitutionality of N.J.S.A. 2C:35-12, which the Court characterized as an “atypical” sentencing statute because it shifted sentencing power from the judiciary to the prosecutor.  The Court held that to satisfy the constitutional requirements of the separation of powers doctrine, prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences under the Comprehensive Drug Reform Act.  Because the then-existing plea negotiation guidelines were not adequate, the Court directed the Attorney General to issue new guidelines – now known as the “Brimage Guidelines” – to promote uniformity and to prevent arbitrariness.  The new guidelines became effective on May 20, 1998.

Often times, defense attorneys negotiate plea agreements on behalf of their clients, but still reserve the opportunity to “argue for less” at the time of sentencing – and quite frequently judges agree and render lower sentences than those called for under the plea agreements.  However, unlike with ordinary plea agreements, an agreement made under the “Brimage Guidelines” binds judges not to impose a lesser term than that to which the parties agree.

Therefore, the consequences of being charged with a drug offense that may subject you to sentencing under the “Brimage Guidelines” is serious.  For example, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute a Controlled Dangerous Substance (“CDS”) and you are first-time offender, you may be eligible to enter a plea agreement that will only subject you to a non-custodial sentence (i.e., probationary sentence).  However, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute CDS and you are a repeat offender, the “Brimage Guidelines” will likely be applicable and your sentence will likely be a term of imprisonment in New Jersey State Prison with a mandatory period of parole ineligibility.

Brimage Guidelines” apply to violations of the following New Jersey drug statutes:

2C:35-3            Leader of a Drug Trafficking Network

2C:35-4            Operating a Drug Production Facility

2C:35-5            Distribution/Possession With Intent to Distribute – First Degree OR

2C:35-5            Distribution/Possession With Intent to Distribute – Repeat Offender

2C:35-6            Using a Juvenile in Drug Distribution

2C:35-7            Distribution/Possession With Intent to Distribute in a School Zone

Most notably, on January 12, 2010, N.J.S.A. 2C:35-7 (Distribution/Possession With Intent to Distribute CDS in a School Zone) was amended to give discretion under certain circumstances to waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases.  The amendment was intended to address concerns about the broad geographic sweep of the school zone offense.  In some jurisdictions, and especially in densely populated urban areas, most locations are situated within 1,000 feet of a school.  As a result, the law’s mandatory minimum sentencing provisions can apply even though the conduct did not directly endanger schools or school-aged children.

The circumstances under which courts can waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases are set forth in N.J.S.A. 2C:35-7b(1):

a.              the extent of the defendant’s criminal record and the seriousness of any prior offenses for which the defendant has been convicted;

b.              the specific location of the present offense in relation to school property and the reasonable likelihood of exposing children to drug-related activities at that location;

c.               whether school was in session at the time of the offense; and

d.              whether children were actually present or in the immediate vicinity when the offense took place.

However, you are ineligible for a waiver or reduction if the offense took place while on school property or a school bus; or if violence was used or threatened during the commission of the offense; or if a firearm was possessed during the commission of the offense.

Synthetic Drugs: Are they worse than the real thing?

On August 22, 2011, Governor Chris Christie signed SCS-28289, which criminalized the manufacture, distribution, sale, and possession of synthetic drugs commonly labeled as “bath salts” or “plant food” in New Jersey.  The bill, now known as “Pamela’s Law,” which was ultimately codified in N.J.S.A. 2C:35-5.3a (manufacture, distribution, and sale) and 2C:35-10.3a (possession) was named in memory of Pamela Schmidt, a Rutgers student and Warren Township resident, who was believed to have been murdered by an individual under the influence of synthetic drugs. 

 The following chemicals, all synthetic cannabinoids, are now a part of the Controlled Dangerous Substance (“CDS”) Act as Schedule I drugs:

·      3,4          – Methylenedioxypyrovalerone (MDPV)

·      4             – Methylmethcathinone (Mephedrone, 4-MMC)

·      3,4          – Methylenedioxymethcathinone (Methylone, MDMC)

·      4             – Fluoromethcathinone (Flephedrone, 4-FMC)

·      3             – Fluoromethcathinone (3-FMC)

·      4             – Methyxymethcathinone (Methedrone, bk-PMMA, PMMC

These chemicals are commonly found in products falsely labeled as “bath salts” or “plant food” with brand names such as “Energizing Aromatherapy,” “Kamikaze,” “Ivory Wave,” “Purple Wave,” “Red Dove,” “Blue Silk,” “Vanilla Sky,” and many others.  Until recently, they were available for purchase online and in local gas stations, convenience stores, and smoke shops. 

The chemicals are sprayed on a mixture of common herbs, creating the synthetic marijuana, which is also referred to as “K2” or “Spice.”  In some instances, the chemicals have even been marketed as a cocaine substitute.

Consumption of these chemicals can cause extreme, severe physical and psychological symptoms including:  extreme anxiety, paranoia, delusional thinking, visual and auditory hallucinations, violent outbursts, self-mutilation, suicidal thoughts, increased blood pressure and heart rate, severe chest pains, and jerky muscle movements.  There have been well over 500 cases of adverse reactions of the chemicals since 2009, according to the American Association of Poison Control Centers.

In addition to the fact that synthetic marijuana was recently available over the counter and online, another attractive quality for consumers was the inability to detect synthetic marijuana in standard drug tests. However, a recent drug test has been developed for synthetic marijuana, which decreases the utility of the synthetic version as opposed to the real thing.

What are the penalties for possession/distribution of synthetic marijuana in New Jersey?

Under N.J.S.A. 2C:35-5.3a, it is a crime of the second degree to manufacture, distribute, sell, or possess with the intent to manufacture, distribute or sell synthetic drugs where the quantity involved is one ounce or more.  Where the quantity involved is less than one ounce, it becomes a crime of the third degree.

Under N.J.S.A. 2C:35-10.3a, it is a crime of the third degree to possess synthetic drugs, where the quantity involved is one ounce or more.  Where the quantity involved in less than one ounce, it becomes a crime of the fourth degree.

Crimes of the second degree are punishable by up to 10 years in New Jersey State Prison.  Crimes of the third degree are punishable by up to 5 years in New Jersey State Prison.  Crimes of the fourth degree are punishable by up to 18 months in New Jersey State Prison.

Obviously, this means that crimes associated with synthetic drugs are serious, with serious consequences.  In fact, the punishments associated with the manufacture, distribution, sale, and possession of synthetic marijuana are higher than those associated with “real” marijuana.   (In some cases, charges associated with “real” marijuana only rise to the level of a disorderly persons offense, as opposed to a crime.)

What should I do if I am charged with the manufacture, distribution, sale or possession of synthetic drugs in New Jersey?

Contact a lawyer.  Unlike with “real” drugs, law enforcement officers are not yet equipped with field test kits to detect the presence of synthetic drugs.  Therefore, if they fail to follow proper procedure and send the suspected synthetic drugs to the laboratory for testing, the charges can be dismissed.

Our criminal defense team is composed of seven (7) criminal defense lawyers with over 100 years of experience representing clients throughout New Jersey. With former prosecutors on staff, our criminal defense team is ready and able to represent you against charges for possession or distribution of synthetic marijuana. Contact our office anytime for a free initial consultation at (732)450-8300.

Drug Possession Will Not Result in Deportation

We are frequently retained to assist individuals on post conviction relief petitions so as to avoid deportation. The deportation can result from any number of criminal convictions but most often involves some type of drug offense. In this regard, Federal Law allows for deportation whenever an individual is convicted of a drug charge other than one involving possession of less than 30 grams of marijuana.

Monday evening I was consulted by a family in dire need of assistance. The father in the household had immigrated to the US in 1990. In 1995, he was convicted of a drug possession charge that was ultimately dismissed via a conditional discharge in 1996. The gentleman applied for a green card years later in or about 2008. It was his desire to obtain adjustment of his status in the United States to Permanent Resident (Green Card Holder). His application for adjustment was reviewed and he was directed to provide proof that his conviction was based on possession of less than 30 grams of marijuana. Unfortunately, there was no lab report to indicate the weight of the drugs and, based thereon, Homeland Security concluded that he was not only not entitled to adjustment but should be detained for deportation. The gentleman had been in detention for almost two weeks by the time the family got to me. The indication was that he would be deported within 10 days.

I immediately prepared a petition for post conviction relief that sought an Order concluding that, as a matter of law, the conviction was based on less than 30 grams of marijuana. Based on the fact that the police report confirmed that the marijuana comprised one joint and a small tin foil of green vegetation believed to be marijuana, it was my position that our client could not have possessed a prohibited amount of drugs. The Court agreed with my claim that these items simply could not amount to 30 grams of marijuana and filed an Order confirm that this was the case. The Order shall prevent the gentleman from being deported and it is also hoped that it will allow him to obtain the waiver necessary for him to become a permanent resident of the United States.


Middlesex County Criminal Defendant Gets PTI

We represent individuals on serious drug distribution cases all the time.  The penalties facing individuals charged with First Degree and Second Degree offenses of this nature are severe.  It is therefore very satisfying when you can achieve a good outcome for an individual who is deserving.  That is precisely what happened last week for a young man in Middlesex County Superior Court.

The gentlemen was a college student from New Brunswick, NJ, with no prior criminal record. He had occasion to be solicited by an undercover police officer for drugs. The client did not possess drugs but knew who to put the officer in contact with to get them. The lead resulted in a drug buy involving Second Degree weight of cocaine.  The client facilitated the transaction but, unbeknown to him, a bust was about to be made, with him and his acquaintance as the defendants. He was charged with Second Degree Distribution and the case was further complicated by the fact that the other person involved was in possession of a firearm. The result of this monumental lapse in judgment was that a college student with no prior dealings with the law whatsoever, was now looking at 5-10 years in prison.

Our client came from a highly educated family filled with success stories, including a doctor and NY District Attorney.  Considerable effort was exhausted to assist this young man and we were pleased to not only avoid any jail time but to have him admitted into Pretrial Intervention.  If he does what he is supposed to over the next year, he should end up with no criminal record. It is refreshing when you reach this type of result.

Possession of a Controlled Dangerous Substance in an Automobile

The New Jersey Supreme Court recently heard the case of State v. Scott on January 10, 2008. The Court held that ample evidence supported the conclusion that the passenger in the vehicle possessed the controlled dangerous substance (CDS) found in the car. The facts of the case are as follows:

In the early morning hours, Paterson police officers pulled over a car being driven without the headlights on and in an erratic manner. It was being driven by Shariffe Parks; defendant Morgan Scott was a front seat passenger. After detecting a strong odor of marijuana and learning that Parks did not have a driver's license, the officers asked him (the passenger) to exit the vehicle. The officers flashed their lights inside the car and saw a large plastic bag on the floor which they believed to contain drugs. Tests later revealed that the bag contained crack cocaine and marijuana. The driver and the passenger were convicted of possession of cocaine and marijuana. On appeal, the Appellate Division agreed with the trial court that there was sufficient evidence to support actual or constructive possession. The court stated that possession cannot be based on mere presence at the place where the contraband is located; there must be other circumstances that permit an inference of defendant's control of the contraband. Criminal possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time, accompanied by the knowledge of its character. Here, the court noted that the drugs were in plain view on the floor of the car in front of the driver's seat.

The court also found that the odor of marijuana, the testimony that it was customary for drug dealers to work in teams, and the permissible inference that the occupants were trying to figure out where to hide the drugs when they continued to drive for several blocks after the officers activated their overhead lights supported the trial court's decision to deny the defendant's motion for acquittal.