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Multiple Ways to Fight Possession of CDS in a Motor Vehicle Charges N.J.S.A. 39:4-49.1

If charged with drug possession/Controlled Dangerous Substance (“CDS”) possession in a vehicle, the penalty may be severe.  In addition to fines which are upwards of $50.00, there is a mandatory two-year loss of license. This offense is almost always coupled with criminal drug charges such as N.J.S.A 2C:35:10(a)(4) – Marijuana Possession – and N.J.S.A 2C:36-2 – Drug Paraphernalia Possession.

The state must prove multiple elements to obtain a conviction for N.J.S.A. 39:4-49.1 Possession of CDS in a motor vehicle. These elements include:

·         Driver operated a motor vehicle

·         Operation must be on a highway (highway includes any major roadway open to the public)

·         Knowledge of CDS possession

·         CDS located on person or within vehicle

Failure to prove possession is one way many cases get dismissed. The U.S. Supreme Court has said that “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead) There are three different types of possession in New Jersey: Actual, Joint, and Constructive.

“Actual Possession is what most of us think of as possession- that is, having physical custody or control of an object” (United States v. Nenadich). Dismissing cases where there is actual possession is quite difficult, however, if you are charged with constructive possession there is a chance that the case can be dismissed completely.

Most courts say that constructive possession, also sometimes called “possession in law” exists, “where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it” (United States v. Derose). There are multiple ways that constructive possession can be dismissed, among them are:

·         The driver did not procure or was not aware of the CDS. For example, if a passenger in your car is in possession of a CDS but you had no knowledge of his possession, constructive possession does not exist.

·         The location of the CDS was not in proximity of the driver. The farther away the CDS was from the driver, found hidden in the backseat of the car, rather than the center console,  the better chance N.J.S.A. 39:4-49.1 Possession of CDS in a motor vehicle is dismissed.

·         Car ownership by a person other than the driver also can undermine the possession requirement. For example, if you borrow a friend’s car to go to dinner and, upon being pulled over for speeding, an officer searches the car and finds a small amount of marijuana in the center console. Are those drugs in your possession or do they belong to the owner of the car?

Another way N.J.S.A. 39:4-49.1 Possession of CDS in a motor vehicle can be successfully handled is to challenge the means by which the evidence was obtained. The two primary challenges are:

·         Challenging the basis for the stop.

·         Challenging the basis for seizure of the CDS found in the car. This involved scrutinizing the search that was conducted by law enforcement.


The biggest hurdle is preventing the mandatory two-year loss of license if found guilty. There are different procedural grounds to challenge N.J.S.A. 39:4-49.1 Possession of CDS in a motor vehicle in addition to arguments laid out above. If charged with possession of CDS in a motorized vehicle, contacting an experienced criminal defense attorney should be your top priority.

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