NJ Marijuana Decriminalization and Cannabis Legalization
March 16, 2021 - Posted by Larry Holtz, Esq.
Updated March 26, 2021 - Update to the section on "Special Rules for Those Under the Age of 21" after P.L.2021, c.38 was signed into law on March 26, 2021.
Marijuana Decriminalization and Cannabis Legalization
On November 3, 2020, the citizens of New Jersey voted (with a 67% rate of approval) to pass a constitutional amendment decriminalizing marijuana for persons 21 years of age or older. The constitutional amendment, which took effect on January 1, 2021, provides at Article IV, §VII:
"The growth, cultivation, processing, manufacturing, preparing, packaging, transferring, and retail purchasing and consumption of cannabis, or products created from or which include cannabis, by persons 21 years of age or older, and not by persons under 21 years of age, shall be lawful and subject to regulation by the Cannabis Regulatory Commission[.] * * *"
As used in this paragraph:
“Cannabis” 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. “Cannabis” does not include: cannabis dispensed and consumed for medical purposes pursuant to any law enacted by the Legislature; hemp or hemp products subject to regulation under the "New Jersey Hemp Farming Act," P.L.2019, c.238 (C.4:28-6 et al.), or any successor enactment thereto; or unregulated cannabis, referred to as marijuana, and products created from or which include marijuana.
Following the passage of the above constitutional amendment, the New Jersey State Legislature, on February 22, 2021, enacted three extensive pieces of legislation changing the legal status of marijuana and hashish and the way law enforcement officials may treat those suspected of the possession or use of those substances. The three provisions are:
New Limits on Marijuana and Hashish
As of February 22, 2021, the following conduct no longer violates state law:
In addition, the following weight thresholds now apply to the possession, possession with intent to distribute, and distribution of marijuana and hashish:
Distribution of Small Quantities
As part of these revised thresholds, the legislation creates a new framework for individuals who distribute one ounce or less of marijuana or five grams or less of hashish:
First offense. Officers shall issue a written warning to individuals for their first offense. In the coming weeks, law enforcement agencies will need to build new mechanisms to track the issuance of such warnings. In the interim, agencies should rely on existing resources to track warnings and, out of an abundance of caution, treat any individual’s offense as a first offense unless the officer has clear evidence of a prior violation.
Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime.
Restrictions on Police Action
In addition, law enforcement officers may no longer detain, arrest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. Instead, officers should collect the individual’s personal information and process them accordingly. Those offenses are:
All four of these offenses constitute fourth-degree crimes, except when an individual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-degree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons.
Search and Seizure Issues
CAUTION: These changes will impact any existing or future case law involving stops or searches based on the odor of marijuana or the suspected possession or use of marijuana, hashish, or cannabis item.
Detecting the Odor of Marijuana
The odor of marijuana or hashish, either burnt or raw, by itself no longer establishes “reasonable articulable suspicion” to initiate a stop or “probable cause” to conduct a search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense.
Moreover, a person who violates N.J.S. 2C:35-10(a)(3)(b) or N.J.S. 2C:35-5(b)(12)(b) shall not be subject to arrest, detention, or otherwise be taken into custody, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. See N.J.S. 2C:35-10(a)(3)(b)(i); N.J.S. 2C:35-5(b)(12)(b)(i).
In addition, none of the following shall, individually or collectively, constitute reasonable articulable suspicion of a crime, unless on property used for school purposes which is owned by a school or school board, or at any detention facility, adult correctional facility, or youth correction facility:
Special Rules for Those Under the Age of 21
The law establishes a new framework for individuals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school.
That framework was further revised through P.L.2021, c.38, eff. 3-26-21, to provide that, if a person under age 18 violates the law by possessing or consuming alcohol, cannabis, marijuana, or hashish and receives a written warning from a law enforcement officer for a first offense, the law enforcement officer would also be required to provide a written notice to the parent or guardian of the minor. The revision also provides that a law enforcement officer providing a written warning to a person under the age of 18 would not transport the person to a police station or other law enforcement location. As originally written, P.L.2021, c.25 did not provide that a parent, guardian, or other person having custody would be notified about the minor’s first violation.
First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth. If the violation is by a person under age 18, a written notification concerning the violation shall also be provided to the individual’s parent or guardian.
Second offense. Officers shall issue a written warning, and also provide the person with informational materials on community drug treatment services. For individuals under the age of 18, the officer shall provide the individual’s parent or guardian with a copy of the written warning.
Third or subsequent offense. Officers shall issue a written warning and again provide the individual with information on community drug treatment services. If the individual is between 18 and 21, then the officer shall provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning.
Written warnings. Officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that support a finding of the violation. As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codified at N.J.S. 2C:33-15—will require law enforcement agencies to develop new mechanisms to track the issuance of these warnings. In the interim, agencies should use existing resources to track this information. Additional Attorney General guidance on this issue will be forthcoming.
Fingerprinting. Officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an individual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint-summons and fingerprinted at their first court appearance.
Official Deprivation of Civil Rights. The new law prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana, hashish, cannabis, or alcohol, in violation of N.J.S. 2C:33-15(a)(1). Importantly, officers who knowingly violate these provisions may be charged with the criminal violation of Official Deprivation of Civil Rights, regardless of whether the officer intended to do so. Prohibited conduct includes:
Odor. The odor of an alcoholic beverage, marijuana, hashish, cannabis, or cannabis item, or burnt marijuana, hashish, cannabis, or cannabis item, shall not constitute reasonable articulable suspicion to initiate an investigatory stop of a person, nor shall it constitute probable cause to initiate a search of a person or that person’s personal property to determine a violation of N.J.S. 2C:33-15(a)(1).
Unconcealed possession. Additionally, the unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law.
Warnings and notice only. An individual under the age of 21 who violates N.J.S. 2C:33-15(a)(1) shall not be arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required.
Body worn cameras. When responding to a violation or suspected violation of N.J.S. 2C:33-15(a)(1), law enforcement officers must activate their body worn cameras, which must remain activated throughout the encounter.
Updated March 26, 2021 - Update to the section on "Special Rules for Those Under the Age of 21" after P.L.2021, c.38 was signed into law on March 26, 2021.
Marijuana Decriminalization and Cannabis Legalization
On November 3, 2020, the citizens of New Jersey voted (with a 67% rate of approval) to pass a constitutional amendment decriminalizing marijuana for persons 21 years of age or older. The constitutional amendment, which took effect on January 1, 2021, provides at Article IV, §VII:
"The growth, cultivation, processing, manufacturing, preparing, packaging, transferring, and retail purchasing and consumption of cannabis, or products created from or which include cannabis, by persons 21 years of age or older, and not by persons under 21 years of age, shall be lawful and subject to regulation by the Cannabis Regulatory Commission[.] * * *"
As used in this paragraph:
“Cannabis” 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. “Cannabis” does not include: cannabis dispensed and consumed for medical purposes pursuant to any law enacted by the Legislature; hemp or hemp products subject to regulation under the "New Jersey Hemp Farming Act," P.L.2019, c.238 (C.4:28-6 et al.), or any successor enactment thereto; or unregulated cannabis, referred to as marijuana, and products created from or which include marijuana.
Following the passage of the above constitutional amendment, the New Jersey State Legislature, on February 22, 2021, enacted three extensive pieces of legislation changing the legal status of marijuana and hashish and the way law enforcement officials may treat those suspected of the possession or use of those substances. The three provisions are:
- Cannabis legalization (P.L.2021, c.16). Titled as the New Jersey Cannabis Regulatory, Enforcement, Assistance and Marketplace Modernization Act, this law legalizes regulatory cannabis. (a-21). This law directs that marijuana shall no longer be included in Schedule I, and shall not be designated or rescheduled and included in any other schedule. N.J.S. 24:21-5e.(1).
- Marijuana decriminalization (P.L.2021, c.19). This law decriminalizes possession of small amounts of marijuana and hashish and establishes new, more lenient penalties for the distribution of these substances. (a-1897).
- Under age possession, consumption, and other clarifying provisions (P.L.2021, c.25). This law clarifies certain provisions regarding marijuana and cannabis use and possession penalties for individuals younger than 21 years old. (s-5342 Sa (1R).
New Limits on Marijuana and Hashish
As of February 22, 2021, the following conduct no longer violates state law:
- 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 marijuana/hashish while operating a motor vehicle, 39:4-49.1
In addition, the following weight thresholds now apply to the possession, possession with intent to distribute, and distribution of marijuana and hashish:
- Possession of Marijuana: More than 6 oz. OR Hashish: More than 17 g. is a fourth degree crime.
- Possession of Marijuana: 6 oz. or less OR Hashish: 17 g. or less is a not a crime.
- Distribution of Marijuana: 25 lbs. or more OR Hashish: 5lbs. or more is a first degree crime.
- Distribution of Marijuana: 5 lbs. or more OR Hashish: 1lbs. or more is a second degree crime.
- Distribution of Marijuana: more than 1 oz. OR Hashish: more than 5 g. is a third degree crime.
- Distribution of Marijuana: 1 oz. or less OR Hashish: 5 g. or less is a warning for the first offense and a fourth degree crime for a second and subsequent offense.
Distribution of Small Quantities
As part of these revised thresholds, the legislation creates a new framework for individuals who distribute one ounce or less of marijuana or five grams or less of hashish:
First offense. Officers shall issue a written warning to individuals for their first offense. In the coming weeks, law enforcement agencies will need to build new mechanisms to track the issuance of such warnings. In the interim, agencies should rely on existing resources to track warnings and, out of an abundance of caution, treat any individual’s offense as a first offense unless the officer has clear evidence of a prior violation.
Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime.
Restrictions on Police Action
In addition, law enforcement officers may no longer detain, arrest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. Instead, officers should collect the individual’s personal information and process them accordingly. Those offenses are:
- 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)
All four of these offenses constitute fourth-degree crimes, except when an individual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-degree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons.
Search and Seizure Issues
CAUTION: These changes will impact any existing or future case law involving stops or searches based on the odor of marijuana or the suspected possession or use of marijuana, hashish, or cannabis item.
Detecting the Odor of Marijuana
The odor of marijuana or hashish, either burnt or raw, by itself no longer establishes “reasonable articulable suspicion” to initiate a stop or “probable cause” to conduct a search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense.
Moreover, a person who violates N.J.S. 2C:35-10(a)(3)(b) or N.J.S. 2C:35-5(b)(12)(b) shall not be subject to arrest, detention, or otherwise be taken into custody, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. See N.J.S. 2C:35-10(a)(3)(b)(i); N.J.S. 2C:35-5(b)(12)(b)(i).
In addition, none of the following shall, individually or collectively, constitute reasonable articulable suspicion of a crime, unless on property used for school purposes which is owned by a school or school board, or at any detention facility, adult correctional facility, or youth correction facility:
- The odor of cannabis or burnt cannabis;
- The possession of or the suspicion of possession of marijuana or hashish without evidence of quantity in excess of any amount that would exceed the amount of cannabis items which may be lawfully possessed pursuant to law; or
- The possession of marijuana or hashish without evidence of quantity in excess of any amount that would exceed the amount of cannabis items which may be lawfully possessed pursuant to law in proximity to any amount of cash or currency.
Special Rules for Those Under the Age of 21
The law establishes a new framework for individuals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school.
That framework was further revised through P.L.2021, c.38, eff. 3-26-21, to provide that, if a person under age 18 violates the law by possessing or consuming alcohol, cannabis, marijuana, or hashish and receives a written warning from a law enforcement officer for a first offense, the law enforcement officer would also be required to provide a written notice to the parent or guardian of the minor. The revision also provides that a law enforcement officer providing a written warning to a person under the age of 18 would not transport the person to a police station or other law enforcement location. As originally written, P.L.2021, c.25 did not provide that a parent, guardian, or other person having custody would be notified about the minor’s first violation.
First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth. If the violation is by a person under age 18, a written notification concerning the violation shall also be provided to the individual’s parent or guardian.
Second offense. Officers shall issue a written warning, and also provide the person with informational materials on community drug treatment services. For individuals under the age of 18, the officer shall provide the individual’s parent or guardian with a copy of the written warning.
Third or subsequent offense. Officers shall issue a written warning and again provide the individual with information on community drug treatment services. If the individual is between 18 and 21, then the officer shall provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning.
Written warnings. Officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that support a finding of the violation. As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codified at N.J.S. 2C:33-15—will require law enforcement agencies to develop new mechanisms to track the issuance of these warnings. In the interim, agencies should use existing resources to track this information. Additional Attorney General guidance on this issue will be forthcoming.
Fingerprinting. Officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an individual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint-summons and fingerprinted at their first court appearance.
Official Deprivation of Civil Rights. The new law prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana, hashish, cannabis, or alcohol, in violation of N.J.S. 2C:33-15(a)(1). Importantly, officers who knowingly violate these provisions may be charged with the criminal violation of Official Deprivation of Civil Rights, regardless of whether the officer intended to do so. Prohibited conduct includes:
- Officers shall not ask an individual under 21 for consent to search the person to determine a violation of that crime. (However, if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot, the individual may grant consent to search). In this regard, the revised statute provides: “A person under the legal age to purchase alcoholic beverages or cannabis items is not capable of giving lawful consent to a search to determine a violation of this section, and a law enforcement officer shall not request that a person consent to a search for that purpose.”
Odor. The odor of an alcoholic beverage, marijuana, hashish, cannabis, or cannabis item, or burnt marijuana, hashish, cannabis, or cannabis item, shall not constitute reasonable articulable suspicion to initiate an investigatory stop of a person, nor shall it constitute probable cause to initiate a search of a person or that person’s personal property to determine a violation of N.J.S. 2C:33-15(a)(1).
Unconcealed possession. Additionally, the unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law.
Warnings and notice only. An individual under the age of 21 who violates N.J.S. 2C:33-15(a)(1) shall not be arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required.
Body worn cameras. When responding to a violation or suspected violation of N.J.S. 2C:33-15(a)(1), law enforcement officers must activate their body worn cameras, which must remain activated throughout the encounter.