Legalizing Marijuana: Consequences and Considerations in Family and Criminal Law

After years of talk, it has finally happened: marijuana is legal in New Jersey. On February 22, 2021, Governor Phil Murphy signed three different bills that, together, both legalized marijuana and addressed previous charges and convictions relating to marijuana. That same day, the Attorney General sent out guidance to law enforcement regarding the bills, as well as a directive regarding marijuana charges.

As attorneys who deal with matrimonial and criminal or municipal court matters, marijuana usage comes up a lot in our practice. Therefore, at Daly & Associates, we have been following this issue closely and preparing how to move forward and properly advise both current and future clients. As part of this preparation, this article is the final one in our 3-part series addressing marijuana legalization.  In this article, we analyze some of the questions regarding this new framework and how it impacts you, as well as some questions we’ve heard from our clients and members of the community.

JUVENILES CAN NOW USE MARIJUANA AND ALCOHOL CONSEQUENCE FREE?

It may be a jarring headline, but that’s certainly the message that appears to be sent with these new laws.

Although it is “illegal” to use marijuana or alcohol if you are under the age of 21, the most an officer can now do (unless you’ve committed another crime, such as driving while under the influence or possessing more than six ounces of marijuana) is issue a written warning. What’s worse, is that if is a first offence, the law forbids an officer from advising parents about said warning.

The consequences of this cannot be understated. It may seem crazy to use extreme examples, such as a 10-year old drinking a beer in the park, or a 12-year-old smoking marijuana, but if it is their first offense you, the parent, may never be told. And what about teenagers? Or, even worse, college-aged children under the age of 21? Again, a child under 21 caught violating the new statutes the first time gets a warning, but his or her parents get no heads up. And, no matter how many times a 19-year-old violates the statute, his or her parents never get notified because they are now over 18.

It goes without saying that a parent cannot effectively “parent” if he or she doesn’t know their child has done something wrong. Police, therefore, have become the de facto parent for first offenses and parents simply have to hope and pray that the police make enough of an impression on their children that they don’t do it again.

But there are even greater concerns with this first offense warning. What if your child is using marijuana or drinking alcohol while driving? This raises two major issues: safety and liability. Using mind-altering substances and then driving is obviously unsafe. The Huffington Post states that drunk driving is the second leading cause of car accidents in the United States and “is the most deadly.” But given that the odor of marijuana or alcohol, or even seeing same in the vehicle, no longer constitutes “probable cause,” officers now need some other evidence to justify investigating or charging an individual with driving while under the influence. If there is nothing to charge, then, for a first offense, the child will get a warning and the parent will never know unless there is a subsequent offense, which may be too late. The most likely other evidence to justify the stop and then charge is some form of unsafe driving. That means, the officers have to observe the vehicle long enough to justify the stop, while hopefully stepping in before they seriously hurt themselves or others. A frightening thought. As for the liability issue, how many parents still have their 18-, 19 and 20-year-olds on their car insurance? Knowing about warnings could give them an opportunity to parent and to address the issue before something happens to raise their insurance rates – or, potentially, exposes them to liability for the injuries, or even death of another. But the new law doesn’t allow parents to be notified at all for those over the age of 18.

A FIRST OFFENSE, A SECOND FIRST OFFENSE, OR A THIRD FIRST OFFENSE?

Under the new framework, when it comes to juvenile use of marijuana or alcohol and adult possession with intent to distribute a small amount of marijuana, officers must distinguish between a “first offense” and subsequent offenses. Officers do not currently have databases that share amongst departments warnings that have been given out. That means an individual could conceivably receive a warning in one town, then simply hop to another town to commit the activity in question again and receive another first warning. Officers have been told to assume the offense is a first one, unless they can prove otherwise. While the Attorney General guidelines make clear a database will, at some point, be constructed, we have no idea when it will be in effect or whether it will be useful. This means individuals are likely to get away with committing multiple “first offenses” for some time.

NEW ELEMENTS OF 4th DEGREE POSSESSION WITH INTENT TO DISTRIBUTE

Unlike the prior law, it is no longer a 4th degree offense to distribute marijuana in a quantity of less than one ounce, unless you have first received a warning for doing so. But this raises questions too. Do prosecutors simply need to prove a warning was previously issued? Or will they have to prove that the warning was legitimate? In other words, will prosecutors need to prove that an individual, on two separate occasions, possessed marijuana with the intent to distribute same, and after the first occasion received a warning, in order to convict an individual? These are questions that still need to be answered.

CAN I POSSESS SIX OUNCES OR ONE OUNCE?

It is now legal to possess up to 6 ounces of marijuana, unless you possess that marijuana with intent to distribute same. If you possess one ounce or less of marijuana with intent to distribute, you will receive either a warning or a 4th degree charge. However, if you possess anywhere from 1 ounce to 5 lbs. with the intent to distribute, you can be guilty of a third degree offense (and no warning is necessary). Thus, an officer who finds an individual to be in possession of 5 ounces of marijuana, provided the facts support a charge, can charge that individual with possession with intent to distribute, a third degree charge. That’s a far cry from “decriminalized” marijuana. How does an officer determine possession with intent?

In the past, officers who have years of experience have served as expert witnesses to opine as to whether the amount of marijuana possessed proves the element of “intent to distribute.” While their use has declined after our Supreme Court expressed some doubts about this practice, consider this: according to therecoverycenter.org, one ounce of marijuana can yield 84 cigarette sized joints. Will a jury really think anyone needs 5 ounces (420 joints) for “personal use?” The question remains to be answered.

PRIOR CRIMINAL HISTORY

The new framework did not just legalize marijuana use in the future, it also wiped out all pending marijuana possession charges, and directed the Administrative Office of the Courts to vacate prior convictions. This will have major ramifications for thousands of New Jersey residents who suddenly find they are no longer considered “felons,” or now have any kind of criminal history.

Of course, your criminal history does not just disappear on its own. In addition to vacating your conviction, you may be eligible to have your conviction expunged which means your arrest, the charges and the conviction can be completely erased from your criminal history so that anyone doing a criminal background check will never know about your past history. This can affect your ability to be employed, hold office, obtain a good house, and more. If you think this applies to you, you should reach out to our office to discuss further.

WHAT ELSE?

These new laws have been effective for mere weeks and there are still a lot of issues to be addressed. Officers, attorneys, and the courts are working around the clock to familiarize themselves with the new regulations and to work out what comes next. Here at Daly & Associates, we are following these issues in order to answer the questions of all of our current and future clients. If you have questions about the topics covered in this article, and need legal advice with respect to same, please do not hesitate to contact us at (973) 292-9222 or e-mailing to set up a consultation with former Morris County Assistant Prosecutor Sean Gaynor. We are working on a “Daly” basis for your needs.

Children, Criminal, Expungements, Family, Marijuana, New Law, Procedure

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