Bill Text: NJ A4952 | 2020-2021 | Regular Session | Introduced
Bill Title: Decriminalizes small-amount possession of marijuana and hashish, punishable only by fine, or for certain subsequent offenses, community service; dismisses currently pending disorderly persons small-amount possession charges.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2020-11-09 - Introduced, Referred to Assembly Judiciary Committee [A4952 Detail]
Download: New_Jersey-2020-A4952-Introduced.html
Sponsored by:
Assemblyman JAMEL C. HOLLEY
District 20 (Union)
SYNOPSIS
Decriminalizes small-amount possession of marijuana and hashish, punishable only by fine, or for certain subsequent offenses, community service; dismisses currently pending disorderly persons small-amount possession charges.
CURRENT VERSION OF TEXT
As introduced.
An Act addressing the legal consequences associated with certain marijuana and hashish possession offenses, amending N.J.S.2C:35-2 and N.J.S.2C:35-10, and supplementing chapter 35 of Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:35-2 is amended to read as follows:
2C:35-2. As used in this chapter:
"Administer" means the direct application of a controlled dangerous substance or controlled substance analog, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by: (1) a practitioner (or, in his presence, by his lawfully authorized agent), or (2) the patient or research subject at the lawful direction and in the presence of the practitioner.
"Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser but does not include a common or contract carrier, public warehouseman, or employee thereof.
"Controlled dangerous substance" means a drug, substance, or immediate precursor in Schedules I through V, any substance the distribution of which is specifically prohibited in N.J.S.2C:35-3, in section 3 of P.L.1997, c.194 (C.2C:35-5.2), in section 5 of P.L.1997, c.194 (C.2C:35-5.3), in section 2 of P.L.2011, c.120 (C.2C:35-5.3a), or in section 2 of P.L.2013, c.35 (C.2C:35-5.3b), and any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance in the human body. When any statute refers to controlled dangerous substances, or to a specific controlled dangerous substance, it shall also be deemed to refer to any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance or the specific controlled dangerous substance, and to any substance that is an immediate precursor of a controlled dangerous substance or the specific controlled dangerous substance. The term shall not include distilled spirits, wine, malt beverages, as those terms are defined or used in R.S.33:1-1 et seq., [or] tobacco and tobacco products, or cannabis or cannabis resin as defined in section 3 of P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ). The term, wherever it appears in any law or administrative regulation of this State, shall include controlled substance analogs.
"Controlled substance analog" means a substance that has a chemical structure substantially similar to that of a controlled dangerous substance and that was specifically designed to produce an effect substantially similar to that of a controlled dangerous substance. The term shall not include a substance manufactured or distributed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of section 505 of the "Federal Food, Drug and Cosmetic Act," 52 Stat. 1052 (21 U.S.C. s.355).
"Counterfeit substance" means a controlled dangerous substance or controlled substance analog which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed the substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.
"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance or controlled substance analog, whether or not there is an agency relationship.
"Dispense" means to deliver a controlled dangerous substance or controlled substance analog to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery. "Dispenser" means a practitioner who dispenses.
"Distribute" means to deliver other than by administering or dispensing a controlled dangerous substance or controlled substance analog. "Distributor" means a person who distributes.
"Drugs" means (a) substances recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (c) substances (other than food) intended to affect the structure or any function of the body of man or other animals; and (d) substances intended for use as a component of any article specified in subsections (a), (b), and (c) of this section; but does not include devices or their components, parts, or accessories.
"Drug or alcohol dependent person" means a person who as a result of using a controlled dangerous substance or controlled substance analog or alcohol has been in a state of psychic or physical dependence, or both, arising from the use of that controlled dangerous substance or controlled substance analog or alcohol on a continuous or repetitive basis. Drug or alcohol dependence is characterized by behavioral and other responses, including but not limited to a strong compulsion to take the substance on a recurring basis in order to experience its psychic effects, or to avoid the discomfort of its absence.
"Hashish" means the resin extracted from any part of the plant Genus Cannabis L. and any compound, manufacture, salt, derivative, mixture, or preparation of such resin. "Hashish" shall not mean: hemp or a hemp product cultivated, handled, processed, transported, or sold pursuant to the "New Jersey Hemp Farming Act," P.L.2019, c.238 (C.4:28-6 et al.); or cannabis resin as defined in section 3 of P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ) which is extracted for use in a cannabis item, as defined in that section, in accordance with the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ).
"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled dangerous substance or controlled substance analog, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled dangerous substance or controlled substance analog by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled dangerous substance: (1) by a practitioner as an incident to his administering or dispensing of a controlled dangerous substance or controlled substance analog in the course of his professional practice, or (2) by a practitioner (or under his supervision) for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
"Marijuana" means all parts of the plant Genus Cannabis L., whether growing or not; the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds, except those containing resin extracted from the plant [; but shall not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination]. "Marijuana" shall not mean: hemp or a hemp product cultivated, handled, processed, transported, or sold pursuant to the "New Jersey Hemp Farming Act," P.L.2019, c.238 (C.4:28-6 et al.); or cannabis as defined in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) which is cultivated and processed for use in a cannabis item, as defined in that section, in accordance with the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ).
"Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) Opium, coca leaves, and opiates;
(b) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates;
(c) A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in subsections (a) and (b), except that the words "narcotic drug" as used in this act shall not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecogine.
"Opiate" means any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled pursuant to the provisions of section 3 of P.L.1970, c.226 (C.24:21-3), the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
"Opium poppy" means the plant of the species Papaver somniferum L., except the seeds thereof.
"Person" means any corporation, association, partnership, trust, other institution or entity, or one or more individuals.
"Plant" means an organism having leaves and a readily observable root formation, including, but not limited to, a cutting having roots, a rootball or root hairs.
"Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
"Practitioner" means a physician, dentist, veterinarian, scientific investigator, laboratory, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled dangerous substance or controlled substance analog in the course of professional practice or research in this State.
(a) "Physician" means a physician authorized by law to practice medicine in this or any other state and any other person authorized by law to treat sick and injured human beings in this or any other state.
(b) "Veterinarian" means a veterinarian authorized by law to practice veterinary medicine in this State.
(c) "Dentist" means a dentist authorized by law to practice dentistry in this State.
(d) "Hospital" means any federal institution, or any institution for the care and treatment of the sick and injured, operated or approved by the appropriate State department as proper to be entrusted with the custody and professional use of controlled dangerous substances or controlled substance analogs.
(e) "Laboratory" means a laboratory to be entrusted with the custody of narcotic drugs and the use of controlled dangerous substances or controlled substance analogs for scientific, experimental, and medical purposes and for purposes of instruction approved by the Department of Health.
"Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled dangerous substance or controlled substance analog.
"Immediate precursor" means a substance which the Division of Consumer Affairs in the Department of Law and Public Safety has found to be and by regulation designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled dangerous substance or controlled substance analog, the control of which is necessary to prevent, curtail, or limit such manufacture.
"Residential treatment facility" means any facility licensed and approved by the Department of Human Services and which is approved by any county probation department for the inpatient treatment and rehabilitation of drug or alcohol dependent persons.
"Schedules I, II, III, IV, and V" are the schedules set forth in sections 5 through 8 of P.L.1970, c.226 (C.24:21-5 through 24:21-8) and in section 4 of P.L.1971, c.3 (C.24:21-8.1) and as modified by any regulations issued by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety pursuant to the director's authority as provided in section 3 of P.L.1970, c.226 (C.24:21-3).
"State" means the State of New Jersey.
"Ultimate user" means a person who lawfully possesses a controlled dangerous substance or controlled substance analog for his own use or for the use of a member of his household or for administration to an animal owned by him or by a member of his household.
"Prescription legend drug" means any drug which under federal or State law requires dispensing by prescription or order of a licensed physician, veterinarian, or dentist and is required to bear the statement "Rx only" or similar wording indicating that such drug may be sold or dispensed only upon the prescription of a licensed medical practitioner and is not a controlled dangerous substance or stramonium preparation.
"Stramonium preparation" means a substance prepared from any part of the stramonium plant in the form of a powder, pipe mixture, cigarette, or any other form with or without other ingredients.
"Stramonium plant" means the plant Datura Stramonium Linne, including Datura Tatula Linne.
(cf: P.L.2019, c.238, s.10)
2. N.J.S.2C:35-10 is amended to read as follows:
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$35,000.00] $35,000 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$15,000.00] $15,000 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or possession of more than two ounces of marijuana, including any adulterants or dilutants, on and after the date determined by the Cannabis Regulatory Commission pursuant to paragraph (2) of subsection d. of section 5 of P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ) to be the first date on which cannabis retailers issued licenses and conditional licenses begin retail sales of personal use cannabis items, as defined in that act, or possession of more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$25,000.00] $25,000 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or possession of two ounces or less of marijuana, including any adulterants or dilutants, on and after the date determined by the Cannabis Regulatory Commission pursuant to paragraph (2) of subsection d. of section 5 of P.L. , c. (C. ) (pending before the Legislature as Assembly Bill No. ) to be the first date on which cannabis retailers issued licenses and conditional licenses begin retail sales of personal use cannabis items, as defined in that act, or possession of five grams or less of hashish is [a disorderly person] guilty of a non-criminal violation, and shall be liable:
(a) for a fine of not less than $200 or more than $500 for a first offense;
(b) for a fine of not less than $500 or more than $1,000 for a second offense; and
(c) for a fine of not less than $1,000 or more than $1,500 for a third or subsequent offense, and additionally for the performance of community service for a period of not less than 30 days or more than 90 days.
Any person who commits any offense defined in paragraphs (1) through (3) of this [section] subsection while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of paragraph (1) through (3) of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Any person who knowingly obtains or possesses marijuana or hashish in violation of paragraph (4) of subsection a. of this section and who fails to voluntarily deliver the marijuana or hashish to the nearest law enforcement officer is guilty of a non-criminal violation, and shall be liable in the same manner for first and subsequent violations as set forth in that paragraph (4). Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
(cf: P.L.1997, c.181, s.6)
3. (New section) Except to the extent required to dismiss, withdraw, or terminate the charge, no court shall have jurisdiction over any charge, including any charge of delinquency, based on obtaining or possessing marijuana or hashish in violation of paragraph (4) of subsection a. of N.J.S.2C:35-10 that occurred prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), unless a guilty verdict, plea, or other entry of guilt, or final judgment of conviction or adjudication of delinquency, has been entered on or before that effective date. These non-prosecutable charges and cases shall be expeditiously dismissed, which may be accomplished by appropriate action by a law enforcement agency, or on a motion to the court which would otherwise have jurisdiction over a case, or the court's own motion, based upon guidelines, administrative directives, and court orders issued by the Attorney General, the Administrative Director of the Courts, and the Supreme Court, as appropriate.
4. This act shall take effect on January 1, 2021, except that the Attorney General, Administrative Director of the Courts, and Supreme Court may take any anticipatory administrative action in advance thereof as may be necessary to effectuate the provisions of this act.
STATEMENT
This bill would address the legal consequences associated with small-amount marijuana and hashish possession offenses by decriminalizing such offenses and providing for the dismissal, withdrawal, or termination of pending charges based on past offenses which are awaiting further legal proceedings at the time the bill takes effect. In order to distinguish between decriminalizing marijuana and hashish, which would remain products of an unregulated black market and not any form of legalized cannabis or cannabis resin lawfully obtained from a State licensed establishment in accordance with the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," introduced as Assembly Bill No. , this bill updates the definitions of both marijuana and hashish to expressly exclude them from being considered legal cannabis and cannabis resin.
Decriminalizing Small-Amount Marijuana and Hashish Possession Offenses
The bill would regrade the disorderly persons offense for obtaining or possessing 50 grams or less of marijuana, or five grams or less of hashish, currently punishable by a term of imprisonment of up to six months, a fine of up to $1,000, or both. See N.J.S.2C:35-10, subsection a., paragraph (4). That offense would instead be considered a non-criminal violation, punishable as follows:
- for a first offense, a fine of not less than $200 or more than $500;
- for a second offense, a fine of not less than $500 or more than $1,000; and
- for a third or subsequent violation, a fine of not less than $1,000 or more than $1,5000, and the performance of community service for a period of not less than 30 days or more than 90 days.
Beginning on the first date that retail sales of legalized cannabis occur, as determined by the Cannabis Regulatory Commission pursuant to the "New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act," the new non-criminal violation would apply to obtaining or possessing two ounces or less of marijuana (approximately 56 grams), with the same above described penalties applying.
The current law's additional, mandated performance of 100 hours of community service for possession on or within 1,000 feet of school property or a school bus would not apply to the new non-criminal violation. Further, the affirmative duty to deliver any small amount of marijuana or hashish to a law enforcement officer as currently required by subsection c. of N.J.S.2C:35-10, punishable as a disorderly persons offense, would also be decriminalized to being a non-criminal offense, subject to the same penalties set forth above.
Unlawful possession of more than 50 grams of marijuana, or more than five grams of hashish, would remain a crime of the fourth degree, punishable by a term of imprisonment of up to 18 months, a fine of up to $25,000, or both. See N.J.S.2C:35-10, subsection a., paragraph (3). The amount threshold for this crime would increase to more than two ounces of marijuana beginning on the first date that retail sales of legalized cannabis occur.
Dismissal, Withdrawal, or Termination of Small-Amount Marijuana and Hashish Possession Charges and Cases
Secondly, no court would have
jurisdiction over any charge awaiting further proceedings on the effective date
of the bill, including any charge of delinquency, except to the extent required
to dismiss, withdraw, or terminate the charge, unless a guilty verdict, plea,
or other entry of guilt, or final judgment of conviction or adjudication of
delinquency had been entered on or before that effective date, for obtaining or possessing 50 grams or
less of marijuana, or five grams or less of hashish, in violation of paragraph
(4) of subsection a. of N.J.S.2C:35-10, which prior to the bill's enactment, as
described above, is considered a disorderly persons offenses, and following
enactment would be decriminalized to be a non-criminal violation. These
existing non-prosecutable charges and cases would be expeditiously dismissed,
which could be accomplished by appropriate action by a law enforcement agency,
or on a motion to the court with jurisdiction over a case, or the court's own
motion, based upon guidelines, administrative directives, and court orders
issued by the Attorney General, the Administrative Director of the Courts, and
the Supreme Court.
Effective Date
The bill would take effect on January 1, 2021, providing the Attorney General, Administrative Director of the Courts, and Supreme Court time to take any anticipatory administrative action in advance thereof as may be necessary to effectuate the provisions of the bill.
