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Is it possible for me to go to court with a 3rd degree possession charge and avoid probation and loosing my lisence?

Hazlet, NJ |

I have two prior possession charges both more than 5 years ago, and only this arrest since then. The police (union county) seemed pretty sure this would get kicked down to municipal. I am thinking I am going to hire a lawyer, just trying to figure out the possibilities. I was a passenger in my friends car she got pulled over and they searched us both. I got possession in very small quantity of controlled substance - 3rd degree.

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Attorney answers 8


Based on your record, if you are convicted at the county you will definitely receive probation at a minumum. You can avoid a license suspension by making a "hardship" application to the judge, showing that you need your license for work, school, etc. and that mass transportation is not available. Thus, if the case stays at the county you need the charge dismissed on an illegal search or you need the co-defendant to take responsibility for the drugs. Same thing if it is remanded to municipal court. However, even if you are convicted in municipal court there is a slight chance you could be sentenced to only a fine and no probation. Depends on the judge and the prosecutor.


Your question raises many issues. WIth two priors, if you are convicted in Superior Court, you are definitely going to get probation. If you are remanded to municipal court, you may be able to avoid probation, but that's a big maybe. More importantly, if you were the passenger, the search of your person may not have been lawful and you may have a viable motion to suppress the drugs they found on you. The police do not have the right to just search your person. You should definitely hire a lawyer to review this issue and other possible defenses.


Your case must be evaluated by an attorney. Among other issues I would need to review discovery in order to check out whether the stop and search was valid.

Please be advised my answers to questions does not constitute legal advise and you should not rely on it, due to the fact that we have never met, I have not been aprised of the facts in you case nor have I reviewed any documents.


You need to hire an experienced criminal defense attorney to represent you. We have several NJ avvo lawyers on this site that may respond on the specifics of your question relating to jail vs. probation and your driver license. One issue is the search of a passenger exceeding a "Terry vs. Ohio" pat-down search. An experienced criminal defense attorney will explore that issue. A summary of the 1967 Supreme Court opinion follows in the next comment. Get counsel.

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

Frank Mascagni III

Frank Mascagni III


Syllabus SUPREME COURT OF THE UNITED STATES 392 U.S. 1 Terry v. Ohio CERTIORARI TO THE SUPREME COURT OF OHIO No. 67 Argued: December 12, 1967 --- Decided: June 10, 1968 A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying [p2] concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer, for his own protection, had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved. Held: 1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9. 2. The issue in this case is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12. 3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques, and this Court's approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15. 4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20. (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16. (b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16. 5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him


Never go to criminal court without a lawyer. This may get downgraded, but don't bet on it, especially if you have two priors already. From what you are saying there may possibly be a defense to the charge against you. Please contact my office to discuss your case in more detail and to see how I can assist you. Thank you.
Sincerely yours, -Ronald Aronds, Esq.-


There is an outside chance of avoiding probation but unlikely if you are convicted of the the 3rd degree charge. If there is a question about the stop and search a motion to suppress may highlight the weakness to the prosecutor and result in a favorable plea bargain or even a dismissal if the evidence is suppressed. If you are accused if possessing MJ, a trial may be your best option as nj juries rarely convict on possession of marijuana. Good luck


An attorney needs to evaluate the search and seizure issues here. If the charges can be proven you are in a bind. The case may well be downgraded if it is small amount. But with priors probation is a real possibility, Keeping your license is very possible. But in some towns in Union County, Cranford and Rahway for example, it is tougher to get a hardship ruling. If the case stays in the county and A.P. Jill O'Malley permits you can get a DP in the Superior Court but Judge Triarsi will put you on probation more than likely but not every time. Your license there would be safe in most cases. Call with more information.


A motion to suppress the evidence would be the next logical step. You need a good defense attorney to defend the case and avoid another conviction. Otherwise, it would be almost impossible to avoid at least probation as a result. Give my office a call.

This answer does not constitute legal advice, create an attorney-client relationship, or constitute attorney advertising.

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