New Jersey has finally passed legislation on the legalization of recreational marijuana. So, what does this mean for you?
Most dramatically, it is now no longer illegal to have six ounces or less of marijuana and up to 3/5 of an ounce of hashish. Additionally, it is no longer a crime to be under the influence of marijuana or hashish, so long as you are over 21 years old. If you are under 21, the first offense for either possession or being under the influence is a written warning. By a third offense, an individual under 21 will receive another written warning, have their parents or guardians notified, and be referred to drug treatment services.
Despite these allowances, home grow of marijuana is not allowed, and possessing more than six ounces of marijuana is still a fourth-degree crime, punishable by up to 18 months in prison. Distributing more than one pound of marijuana or five grams of hashish is still a crime, with the degree increasing with the amount of marijuana and hashish. Also, driving under the influence of marijuana is still a punishable crime.
How does this legislation positively affect those who have been convicted of marijuana charges or those with pending cases?
According to the decriminalization laws and the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act, signed by Governor Murphy on February 22, 2021, and the Directive issued by Attorney General Gurbir Grewal, prosecutors should dismiss any pending marijuana charges that were legalized. The law was also supposed to vacate the convictions, remaining sentences, ongoing supervision, and/or unpaid court fines for those convicted under previous law. What we think is very significant is that in section B of Dismissals in Attorney General Grewal’s directive, he stated that the Administrative Office of the Courts will vacate “any guilty verdict, plea, placement in a diversionary program, or other entry of guilt” from an incident that occurred prior to February 22, 2021.
Despite this seemingly progressive news, on WNYC’s “Ask the Governor,” the process of expunging these past marijuana convictions will be a slow one, as according to Governor Murphy “[the] state doesn’t have the technology to have these cases be automatically expunged” and numerous files are stagnant “in drawers in desks.” In the time it takes for New Jersey to have this process automated, it will likely fall on criminal defense lawyers petitioning for their clients’ prior convictions to be vacated, especially if the prior conviction is impacting the outcome of a pending case. Smart criminal defense attorneys will figure out ways to use Grewal’s directive to help their clients.
Our offices currently have a client that is not eligible for Pretrial Intervention, or PTI, because of a prior conditional discharge. With the new directive, we will be petitioning the court to vacate the conditional discharge or allow the client to be accepted even with the conditional discharge. There will by many such instances that will require clients and their lawyers to vacate previous convictions or conditional discharges. Follow our social media and blog to stay updated about how this new frontier hashes on in New Jersey courts.