One who distributes or possesses with intent to distribute, a CDS within 1000 feet of a school or school bus has committed a separate crime with exposure to a three-year minimum mandatory term of incarceration without parole opportunity and a fine of up to $150,000. (School Zone Offense or SZ Offense). If, however, the substance subject of the charge is less than one ounce of marijuana, the maximum term of imprisonment without parole is one year.



In a School Zone Offense, the government must prove that there has been a violation of one of the statute's enumerated crimes (i.e. distribution, possession with intent to distribute, etc.) within 1000 feet of a school bus or property owned or leased by a school, which includes playgrounds and athletic fields where there is some reasonable indication that the property was "regularly, consistently and actually" used for a school purpose.

It is no defense to say that the school or school facility was closed for the summer; that the event occurred after school hours; or that no school children were present. In essence, the Drug Statute creates a 24-hour, 7-days-a-week safe-zone for children. Moreover, an arrestee does not have to intend to distribution a drug within a school zone to be convicted of the crime and his ignorance of his presence in a school zone is irrelevant. The crime is virtually a strict-liability offense in that there does not have to be an intent to distribute a CDS in a SZ to be convicted of the offense.

One can be convicted of a School Zone Offense by merely riding a bicycle through a school zone, in possession of enough CDS and other contraband items that will allow a jury to conclude that the possession of CDS was with intent to distribute. There can also be a conviction of a School Zone Offense even if the arresting officer first notices illicit or suspicious conduct outside a SZ, follows the person for a period of time and effectuates an arrest within a SZ. Finally, one may be found guilty of a School Zone Offense if he/she is located in a School Zone, but, the drugs are outside the Zone. In the case that developed this principle of law the court looked to concepts of a constructive possession which have been identified above.

In order to establish the 1000-foot distance component of this crime, the government will generally use a map, which must have been approved by municipal ordinance or resolution and has been kept on file in the municipality where the offense occurred. Once the map is properly authenticated and admitted into evidence, the jury can presume that the site of the incident was, in fact, a school property used for school purposes. Even if a school-zone map is not produced, and that is an unlikely event, the government can establish that the violation occurred within 1000 feet of a school zone by other means. In one case, a measuring tape was successfully used to establish the 1000-foot requirement, even though the tape's accuracy had not been certified by the State Division of Weights and Measures. 1

As to the facts needed to establish the "school purpose" element of a School Zone Offense, it has been said that if a school is located on the property, its mere presence is enough to establish that it is used for a school purpose and, that is so, despite the fact that, courts have recognized that schools are sometimes permanently closed or put to other non-school uses. In some situations, the "school purpose" issue may not be so evident. In one case, an athletic field owned by a town and used by the town's people was determined to be "school zone" property, where it was leased to a parochial school for its athletic events only on certain days and times. In that case, the court noted that the jury's analysis on the "school purpose" issue can be influenced by "Drug Free School Zone" signs; other signs, flags or banners indicating school use; published schedules; newspaper articles, the presence of uniformed children on the playing field and even lease agreements that may not have been publicly filed. Ultimately, the "school purpose" issue must be resolved by a jury.

Merely because a school uses property does not make the statute applicable, however. The property must be owned or leased by the school. Thus, a local park used from time to time by a school, but also used by other organizations and the general public, did not become subject to the statute. The statute will not apply if it can be shown that the school has been previously closed and was not being used for a school purpose at the time of the offense.

There may be a defense against a School Zone Offense, however, if it can be shown that the incident took place in a private residence; that the people present were all over 17- years- of-age; and that the incident did not suggest profit as a motive. Each of these factors must be establish by the accused by a preponderance of the evidence, which is the burden of proof used in civil cases, even though this is a criminal offense. Mysteriously, this defense did not apply to a transaction that occurred in a prison facility between a prisoner and a visitor within 1000 feet of a school zone.

A drug-dependent person with no prior convictions for distribution or possession with the intent to distribute, may escape the mandatory term of imprisonment of a School Zone Offense, provided he/she agrees to participate in a long-term drug program. See specific information relative to this program below.E. Public Property Offense

Distribution or possession with the intent to distribute a CDS within 500 feet of a public housing facility, a public park or a public building, can result in a conviction for a second-degree crime, which will require a mandatory prison term of 5 to 10 years. (Public Property Offense). If the substance is less than one ounce of marijuana, however, the offense is a third-degree crime, which can require a maximum term of imprisonment for up to five years.

Many of the rules applicable under a School Zone Offense are applicable under this section of the Drug Statute, including the government's ability to use an approved map to establish distance and one's inability to claim ignorance as a defense.

Notably, however, while a School Zone Offense requires the government to prove that the school property was used "regularly, consistently and actually", that rule may not apply to a Public Property Offense. In one case, a person was convicted of Public Property Offense where he was within 500 feet of a museum that did not have regular hours of operation and was open only by appointment. In that case, the court specifically distinguished the "regularly, consistently and actually" element of the School Zone Offense.

An accusation under this part of the Drug Statute may be defended by showing that there was no intent to derive a profit from the prohibited conduct and that the conduct did not involve a person who was 17-years-of-age. The burden of proving this defense is by a preponderance of the evidence. Thus, one who shares or gives a CDS to a person who is over 17-years-of-age, may not be convicted of a Public Property Offense. Under these same circumstances, however, there can be a conviction of distribution of a CDS or possession with intent to distribute a CDS, which is covered under another section of the Drug Statute. Indeed, under most circumstances, the violator will be charged under both of these sections of the Drug Statute. If, however, there is a conviction under both sections, there should be a merger 2of the offenses for sentencing purposes, which will require the trial court to impose the harsher of the penalties authorized by the Public Property Offense statute.

Copyright (c) 2008 Frank Luciano