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VOLUME 7 - CHAPTER 88
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88.12 Drugs, Controlled Substances: School Proximity
88.12.3 School Proximity: Defenses And Defense Theories
88.12.3.1 School Proximity: Defense Theory That Reasonable Person Would Not Have Known The: Property Was A School
88.12.3.2 School Proximity: Additional Defenses And Defense Theories
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 88
88.12.3.1 School Proximity: Defense Theory That Reasonable Person Would Not Have Known The Property Was A School
RATIONALE: It would be unfair to increase the defendant's sentence based on a fact which a reasonable person would not have known to exist.
POINTS AND AUTHORITIES: See State v. Ivory (NJ 1991) 124 NJ 582, 591.
See also FORECITE National™ Chapter 47 [Knowledge].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.12.1.2 [ Drugs, Controlled Substances: School Proximity-- Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The prosecution must prove beyond a reasonable doubt that:
1. The property was school property;
2. The property was used for school purposes; and
3. A reasonable person in the defendant's situation, in light of all the circumstances as they appeared to and were known by the defendant, would have known that the property was regularly, consistently, and actually used for school purposes.
[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL [Offenses Against Public Order, Health & Decency: Possession With Intent to Distribute CDS Near or on School Property] 1/6/92 (New Jersey ICLE 4th ed. 1997) [instruction should be given when there is an issue as to whether the property was used for school purposes].)
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 88
88.12.3.2 School Proximity: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)