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DRUG OFFENSES AND IMMIGRATION STATUS
In 1973, there were 328,670 arrests reported by the FBI’s Uniform Crime Reports (UCR) for drug law violations, out of a total 9,027,700 arrests nationwide for all offenses. In 2014, there were 1,561,231 arrests for drug law violations out of a total 11,205,833 arrests nationwide for all offenses. Of the 1,561,231 arrests for drug law violations, 83.1% (1,297,384) were for possession of a controlled substance. Only 16.9% (263,848) were for the sale or manufacturing of a drug. Many states have thought about drug law reforms, including the increasing legalization of medical marijuana, and, in a few states, general marijuana use.
Drug crimes law mainly target the use and distribution of controlled substances. Federal drug laws are governed by the Controlled Substances Act, 21 U.S.C. § 801 et seq., (“the CSA”) and most states model their own drug laws after the CSA. The CSA places drugs in five different categories, ranging from schedule I to Schedule V drugs.
WHAT DOES CONTROLLED SUBSTANCE MEAN?
Under New York Penal Law 220.00, controlled substance means any substance listed in schedule I, II, III, IV or V of New York Public Health Law § 3306 other than marijuana, but including concentrated cannabis as defined in paragraph (a) of subdivision four of section 3302 of such law.
Controlled substances are classified, based on whether they have a currently accepted medical use in treatment in the United States, their relative abuse potential, and lpossibility of causing dependence. The abuse rate is a determinate factor in the scheduling of the drug.
- Schedule 1: The drug has a high potential for abuse. The drug has no currently accepted medical use in treatment in the United States.
- Schedule 2: The drug has a high potential for abuse. The drug has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions..
- Schedule 3: The drug has a potential for abuse less than the drugs in schedules 1 and 2 (accepted medical use in treatment).
- Schedule 4: The drug has a low potential for abuse relative to the drugs in schedule 3 (accepted medical use in treatment).
- Schedule 5: The drug has a low potential for abuse relative to the drugs in schedule 4 (accepted medical use in treatment).
NEW YORK STATE DRUG LAWS
New York drug possession laws have been some of the toughest in the country. Although New York drug possession laws divide controlled substance and marijuana-related offenses into two separate groups, the elements of the offenses are the same.
In order to obtain a conviction for possession of a controlled substance or marijuana, prosecutors must prove beyond a reasonable doubt that
- the substance was a controlled substance;
- the defendant possessed the substance;
- his or her possession was knowing; and
- the possession was unlawful.
The prohibition against criminal possession of controlled substances is part of Penal Law Article 220, Controlled Substances Offenses.
The “possession” crimes are set forth there in seven degrees, ranging from a class A misdemeanor for seventh degree possession to a class A1 felony for possession in the first degree. Under nypl 220.03, a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance”. However, it shall not be a violation when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to New York Public Health Law § 3381 (Sale and possession of hypodermic syringes and hypodermic needles).
Finally, possession of a controlled substance is not unlawful if it is the result of seeking immediate health care, for either another person or him-/herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency (pl 220.03). This is the least serious version of the charge. Under the nys penal law, the criminal possession of a controlled substance in the seventh degree, is a class A misdemeanor which carries a penalty of up to one year in jail (nypl 220.03). Even if the amount is immaterial as to the charge of 220.03, if the prosecution can establish that the weight of the controlled substance was an eighth of an ounce or even greater, felony charges may be brought.
Under the ny penal law, the criminal possession of a controlled substance in the fourth degree is a class C felony punishable by 1 to 5 and a half years in prison (pl 220.09). Second time offenders may face up to 8 years in prison, and a previous violent offenders could face 9 years.
Under the nys penal code, the criminal possession of controlled substance in the third degre is a class B felony punishable by 1 to 9 years in prison (pl 220.16). Second time offenders may face up to 12 years in prison, and a previous violent offenders could face 15 years.
The following is the list of the CDSs (220.16):
- a narcotic drug with intent to sell it; or
- a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamid; or
- a stimulant with intent to sell it, weighing 1 gr or more; or
- lysergic acid diethylamide weighing 1 gr or more; or
- a hallucinogen, weighing 25 mg or more; or
- a hallucinogenic substance weighing 1 gr or more; or
- one or more preparations, compounds, mixtures, or substances containing methamphetamine, its salts, isomers or salts of isomers, weighting of one-eighth ounce or more; or
- a stimulant and said stimulant weighs 5 gr or more; or
- lysergic acid diethylamide weighing 5 mg or more; or
- a hallucinogen weighing 125 mg or more; or
- a hallucinogenic substance weighing 5 gr or more; or
- one or more preparations, compounds, mixtures, substances containing a narcotic drug, or aggregate of them, weighing one-half ounce or more; or
- phencyclidine weighing 1250 mg or more.
Under the ny penal code, the criminal possession of a controlled substance in the second degree (pl 220.18) is a class A-II felony punishable by 3 to 10 years in prison. Second time offenders may face up to 14 years in prison, and a previous violent offenders could face 17 years.
Under the ny penal code, the criminal possession of a controlled substance in the first degree is a class A-I felony punishable by 8 to 20 years in prison (pl 220.21). Second time offenders may face up to 24 years in jail, and previous violent offenders face 15 to 30 years.
In addition you could be prosecuted for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is under the age of 21, and/or you previously have been convicted of a drug offense. Convictions for possession of drugs result in the confiscation of the license to drive.
Section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) defines an aggravated felony to include “a drug trafficking crime.” In turn, a drug trafficking crime is defined in part as “any felony punishable under the Controlled Substances Act” (CSA). 18 U.S.C. § 924(c)(2).
In Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) the Court held that a conviction under N.Y.P.L § 221.40 (criminal sale, including distribution, of a small amount of marijuana) is not an Aggravated Felony. The Second Circuit applied the categorical approach and looked at the necessary elements of the petitioner’s state conviction. The court found that the minimum conduct for which the petitioner was convicted was not an AF.
On the other hand, in Khan v. Ashcroft, 352 F.3d 521 (2d Cir. 2003) the Court concluded that using a telephone to facilitate the distribution of heroin under New York law is an Aggravated Felony.
Under nypl 221.05, a person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possesses it. Unlawful possession of marijuana is a violation punishable only by a fine of not more than $100. However, where the defendant has previously been convicted of an offense defined in this article or pl 220, committed within the 3 years immediately preceding such violation, it shall be punishable:
(a) only by a fine of not more than $200, if the defendant was previously convicted of one such offense committed during such period, and
(b) by a fine of not more than $250 or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.
Again, under nypl 165.45, a person is guilty of criminal possession of stolen property in the fourth degree when he/she knowingly possesses stolen property, with intent to benefit him-/ herself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the property consists of anhydrous ammonia or liquified ammonia gas and the actor intends to use, or knows another person intends to use, such anhydrous ammonia or liquified ammonia gas to manufacture methamphetamine. Criminal possession of stolen property in the fourth degree is a class E felony.
NEW JERSEY DRUG LAWS
In New Jersey, the penalties for possession of a drug vary according to the type of drug and the amount of the drug in your possession, and in some cases, where even the offense occurred.
New Jersey divides Controlled Dangerous Substance (CDS) into five “Schedules”. Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction, and no recognized medical value. Schedules II, III, IV, and V decrease in dangerousness and probability of abuse, and increase in recognized medical uses.
It is illegal in New Jersey to possess CDS for personal use without a valid medical prescription. Under N.J. Stat. Ann. § 2C:35-10, penalties vary according to the type and amount of CDS involved in the violation.
Every person who, or firm that, manufactures, prescribes, distributes, dispenses or conducts research or analysis utilizing CDS, is required to submit registration pursuant to N.J.Stat.Ann. § 24:21-1 et seq.
In Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) the Court held that a conviction for trafficking cocaine under Delaware law, where factual basis for the plea was mere possession, does not constitute an Aggravated Felony. The Court explained that the crime must contain a trafficking element or be punished as a felony under federal law.
If you have been charged with a drug offense in New York or New Jersey, contact a criminal immigration lawyer as soon as possible.