Continued from previous page
The New Jersey Police Chief Magazine | March 2022
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 ); and
• 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 .
3 . The odor of marijuana or hashish , either burnt or raw , by itself no longer establishes “ reasonable articulable suspicion ” to initiate a stop or search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense .
4 . Special Rules on pot for persons Under the Age of 21
The law also 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 :
• First offense . Officers shall issue a written warning , which must include the person ’ s name , address , and date of birth , New : Warning 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 copies of the warnings issued for both the first and second offenses .
• 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 .
Law enforcement 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 .
4b . The warning system on pot in NJ for under 21
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 . A . 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 .
Please note that , under this framework , 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 . A . 2C : 35-10 ( a )( 3 )( b ), a fourth-degree crime , and may be issued a complaint- summons and fingerprinted at their first court appearance .
5 . AG Directive 2021-1 : Directive Governing Dismissals of Certain Pending Marijuana Charges
This directive instructs state , county , and municipal prosecutors to dismiss charges pending as of February 22 , 2021 for any marijuana offense that is no longer illegal under state law .
AG Directive 2021-1 Pending Cases are to be dismissed . Effective immediately , prosecutors shall seek dismissals of any pending charges listed in the chart in any cases where a juvenile or adult ’ s conduct occurred on or before February 22 , 2021 .
Dismissals can be requested on an ad hoc basis as the cases are scheduled for a municipal or superior court proceeding . In cases involving multiple charges , only the charges listed in the chart are to be dismissed pursuant to this Directive ; all other charges and pending matters should remain . 2C : 35-5 ( b )( 12 ) 2C : 35-10 ( a )( 3 ) 2C : 35-10 ( a )( 4 ) 2C : 35-10 ( b ) 2C : 35-10 ( c ) 2C : 36-2 2C : 36A-1 39:4-49.1
6 . AG Directive : Pot Cases already resolved : Vacate plea or Conditional Discharge
For those cases already resolved , pursuant to the new decriminalization laws , the Administrative Office of the Courts is supposed to 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
10
Continued on next page