Marijuana Has Always Been Legal

New laws change the past, present, and future in New Jersey

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 part of a 3-part series addressing marijuana legalization.

The following is a summary of the changing legal landscape.

PAST CONVICTIONS FOR POSSESSION AND DISTRIBUTION OF MARIJUANA

If you have previously been convicted for possession of marijuana, possession of marijuana paraphernalia, failure to dispose of marijuana, possession of marijuana in a motor vehicle, or possession with intent to distribute less than one ounce of marijuana, those convictions are being vacated. Under the new legal framework, not only are future marijuana charges decriminalized, but past conduct has also been decriminalized. As a result, the Administrative Office of the Courts (the administrative body that governs New Jersey’s Court system) is tasked with vacating these convictions. The effect of this is to wipe out hundreds of thousands of convictions dating back decades. There are some individuals who may now have a completely clean criminal record, or have such a nominal record they will now be eligible for expungement of their record. If you think this applies to you, you should reach out to our office to set up a consult to discuss the possibility of getting your record expunged.

PENDING CHARGES FOR POSSESSION AND DISTRIBUTION OF MARIJUANA

If, as of February 22, 2021, you had a pending charge for possession of marijuana, possession of marijuana paraphernalia, failure to dispose of marijuana, possession of marijuana in a motor vehicle, or possession with intent to distribute less than one ounce of marijuana, there is no need to worry about those charges anymore. Under the new laws, prosecutors are directed to immediately seek dismissals of these cases. SO, if this applies to you, make sure your case is being dismissed.

FUTURE CHARGES FOR POSSESSION AND DISTRIBUTION OF MARIJUANA

The new law has actually created a split definition for what is commonly thought of as marijuana:

  • “regulated cannabis” includes all marijuana that is legally purchased from a dispensary; and
  • “marijuana” refers to marijuana that has been purchased ‘illegally.’ The word illegally is in quotes because although there are not yet legal means to purchase the substance in New Jersey, the possession of marijuana has been “decriminalized.”

The net effect means that regardless of how you obtain marijuana, you likely will not be charged with a crime.

Possession:

Effective immediately, individuals can now possess up to 6 ounces of marijuana, or 17 grams of hashish (cannabis that is significantly more concentrated than your typical “leafy” marijuana). It is also legal to be under the influence of marijuana or hashish, possess items needed to “use” marijuana or hashish, and even possess marijuana or hashish in a motor vehicle. Of course, it remains illegal to drive while under the influence of either substance.

If you possess more than 6 ounces of marijuana, or more than 17 grams of hashish, you can now be found guilty of a fourth degree crime. Even these penalties are significantly reduced. Possession of 50 grams or less of marijuana or 5 grams or less of hashish was previously a disorderly person’s offense, and possession of more than that amount was previously a fourth degree offense. There are 28 grams to an ounce, so possession of 2 ounces, which was previously a fourth degree offense is now legal and you can possess up to 6 ounces now before being charged with a fourth degree offense.

Distribution:

If you distribute, or possess marijuana, or hashish with intent to distribute, the penalties largely remain the same for larger amounts, however they have been reduced for smaller amounts. It remains a crime of the first degree to possess with the intent to distribute 25 pounds or more of marijuana, or 5 pounds or more of hashish. It also remains a crime of the second degree to possess with the intent to distribute 5 pounds or more of marijuana, or one pound or more of hashish. Likewise, it is still a third degree offense to possess marijuana with the intent to distribute in an amount greater than one ounce, or 5 grams if hashish. However, if you possess one ounce or less of marijuana, or 5 grams or less of hashish, you will receive a “written warning” the first time you are charged. It is only if you are caught a second time that you will be charged with a crime of the fourth degree.

This “warning” system, and its impact upon both clients and prosecutions, will be discussed in one of our companion articles addressing legalization.

Here at Daly & Associates, we are quickly familiarizing ourselves with this “new normal” in order to most effectively 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 to serve your needs.

Criminal, Expungements, Marijuana, New Law

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