There has been an increasing move towards the decriminalization of marijuana in the U.S. However, in New Jersey, it is still criminal to possess even the smallest amounts of marijuana for personal use. NJSA 2C:35-10a4 is the statute that penalizes simple possession of marijuana under fifty grams. This is a disorderly persons offense. In New Jersey, misdemeanor offenses are called disorderly persons offenses and are punishable by up to 6 months in jail and up to a $1000 fine. Additionally, there were will be other fines and statutory fees assessed upon conviction including a $500 DEDR penalty.
If that is not enough, upon conviction the court will have to impose a mandatory six-month loss of license unless the defendant can show that imposition of that penalty would create an undue hardship.
O.K., lets talk reality. Usually, the police don’t find marijuana unless they search you, your home, or your car. This may be by consent, by warrant, or some exception to the warrant requirement. Under normal circumstances, I will file a motion to suppress evidence automatically with any case, just in case. In many instances, there is minimally a question as to whether the search was legit and will at the very least give the defendant leverage in pre-trial negotiations. Where this ultimately leads is determined on a case by case basis. Suppression hearing are typically as far as drug cases get because the evidence is either coming in or going out after that hearing. If the judge finds against you, then the evidence comes and there are very few trial issues left to litigate at that point. If the evidence gets kicked, then the case is typically over and you win.
Secondly, even if the police were searching legitimately, there may be other defenses to the charges such as chain of custody issues, testing problems with the lab tech that tested it and discovery violations with the prosecutor. All of these issues are a basis to file motions to dismiss.
Other defense could include “possession” (was it yours, belong to someone else, didn’t know it was there). These issues are typically present in multi-defendant cases.
Also, depending on your prior record, even if you are caught red-handed, you may qualify for the conditional discharge program. This is a first time drug offender program and usually included a year of probation, drug testing and fines in excess of $800 dollars. However, if you complete the program successfully, the court will dismiss your charges.
The conditional discharge program is a good option, but not ideal. You can only use it once and if you have a problem completing it, all the charges get reinstated and the case starts fresh. Also, if you use this option, you can never expunge a criminal conviction from your record in the future. I like the program, but try to avoid it if I can for my clients. However, in some cases, it’s the best option.
Marijuana possession less than fifty grams is one of the most common arrest that police make. I think it should be legal. I am a member of the NORML legal committee and have been vocal in support for the legalization of marijuana possession in small amounts for personal use. However, in New Jersey it is still a crime and it will be for the foreseeable future.
If you have any question, please feel free to ask.