NJ Low-Level Marijuana Arrests To Stop, Charges To Be Dismissed

NEW JERSEY — Marijuana users in New Jersey saw a big milestone take place this week: an official end to low-level weed arrests and charges.

Attorney General Gurbir Grewal released two key documents Monday, ordering state, county, and municipal prosecutors to immediately dismiss charges for any marijuana offense that is no longer illegal under state law.

The other explains what law enforcement officers can and can’t do under the state’s new marijuana decriminalization law, and it directs police to stop many low-level weed arrests – effective immediately.

On Monday, Gov. Phil Murphy signed three laws officially legalizing marijuana in the Garden State. New Jersey voters overwhelmingly passed a constitutional amendment that greenlighted recreational cannabis in November 2020, but there have been repeated holdups with rolling out the necessary legal framework.

• See related article: Marijuana Is Now Officially Legal In New Jersey
• See related article: NJ Marijuana Enters Weird, Legal Limbo – Is It OK To Smoke Yet?

In the meantime, more than 6,000 marijuana-related arrests took place throughout the state as legislators continued to lock horns with Murphy, according to the ACLU of New Jersey.

Many of those arrests should stop as of Monday, however, after Grewal issued guidance to police and prosecutors in an attempt to clear up some muddy waters when it comes to the legality of weed.

HERE’S WHAT IT MEANS FOR MARIJUANA USERS

As of Monday, law enforcement officers can no longer detain, arrest or “otherwise take people into custody” for the following offenses, Grewal said:

• Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b)
• Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b)
• Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b)
• Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b)

What about cases that have already entered the court system?

After voters approved recreational cannabis in November, Grewal told prosecutors to seek adjournments for some marijuana-related cases. As of Monday, state, county and municipal prosecutors should start dismissing any pending charges for marijuana offenses that are no longer illegal under state law.

That includes:

• Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b)
• Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b)
• Being under the influence of marijuana or hashish, 2C:35-10(b)
• Failure to properly dispose of marijuana or hashish, 2C:35-10(c)
• Possession of paraphernalia for marijuana or hashish, 2C:36-2
• Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1.

Grewal’s office elaborated:

“For those cases already resolved, pursuant to the new decriminalization laws, the administrative Office of the Courts will vacate by operation of law any guilty verdict, plea, placement in a diversionary program, or other entry of guilt on a matter where the conduct occurred prior to February 22, 2021. Also vacated will be any conviction, remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment of any person who is or will be serving a sentence of incarceration, probation, parole or other form of community supervision as of February 22, 2021 as a result of the person’s conviction or adjudication of delinquency solely for the above listed charges.”

HERE’S WHAT IT MEANS FOR COPS

Some law enforcement officers in New Jersey were left with serious doubts after Monday’s landmark bills were signed.

The New Jersey State PBA said the language in the new laws “creates confusion” and “dangerously ties the hands” of cops when it comes to investigating potential marijuana offenses.

“While marijuana is now legal for those 21 and older, this language is an assault on our ability to do our job and enforce the law,” the NJPBA told its members on Monday.

According to Grewal, they’re not alone.

“The Attorney General’s Office has received various questions from law enforcement agencies following the enactment of the February 22 laws,” he wrote, offering a list of frequently asked questions.

They included:

What should an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop?

First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched. If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a marijuana possession case or even in a low-level (fourth-degree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.

May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana?

No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.

What happens when a law enforcement officer encounters an individual under the age of 21 who is in possession of marijuana, hashish, cannabis, or alcohol?

Law enforcement officers must be cautious when they encounter an individual under the age of 21 who is in possession of marijuana, hashish, cannabis, or alcohol. The officer can seize the marijuana, hashish, cannabis, and alcohol and issue the appropriate written warning. However, the new law also sets forth the following prohibitions on officers when investigating possession or consumption of marijuana, hashish, cannabis, or alcohol by an underage individual to determine a violation of N.J.S.A. 2C:33-15:

• Officers may not request consent from an individual who is under the age of 21;
• Officers may not use odor of marijuana to stop an individual who is under the age of 21 or to search the individual’s personal property or vehicle;
• Officers who observe marijuana in plain view will not be able to search the individual or the individual’s personal property or vehicle.
• Officers may not arrest, detain, or otherwise take an individual under the age of 21 into custody for a violation of N.J.S.A. 2C:33-15 except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian.

Does the new law alter the use of my body worn camera (BWC) in any way?

The law requires that whenever an officer is equipped with a BWC, the BWC must be activated when responding to or handling a call involving a violation or suspected violation of the amended N.J.S.A. 2C:33-15, which addresses the underage possession or consumption of alcohol, marijuana, hashish, or cannabis. The BWC may not be deactivated for any reason throughout the entire encounter. Underage refers to people under the age of 21.

How does decriminalization and legalization change fingerprinting?

Marijuana is still by definition pursuant to N.J.S.A. 2C:35-2 a “controlled dangerous substance,” and, therefore, appropriately charged violations involving marijuana or hashish are still subject to fingerprint compliance under N.J.S.A. 53:1-18.1. However, when law enforcement officers encounter an individual who has violated N.J.S.A. 2C:35-5(b)(12)(b) (distribution/possession with intent to distribute 1 ounce or less) or N.J.S.A. 2C:35-10(a)(3)(b) (possession of more than 6 ounces), the officer is prohibited under the law from arresting, detaining, or otherwise bringing that individual into the station, which means the officer will be unable to fingerprint the violator at the time of the incident. Therefore, those individuals must be fingerprinted at their first court appearance.

Individuals under the age of 21 who are in violation of N.J.S.A. 2C:33-15(a)(1) are precluded from being fingerprinted under the new law.

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