The Run-Down on Minor Marijuana Possession in NJ

December 17, 2010 (Press-News.org) Recently, many states have experienced a trend toward leniency for the simple possession of marijuana without the intent to distribute. In New Jersey, simple possession of less than 50 grams of marijuana is a disorderly persons offense, which is a minor offense, distinguished from the indictable crime of possession of more than 50 grams of marijuana. Possession of less than 50 grams of marijuana carries maximum penalties of up to 6 months in prison and $1,000 in fines, but first time offenders is eligible for a diversionary program known as a Conditional Discharge. Diversionary programs usually involve drug testing in lieu of jail, and the promise that the crime will be sealed from the individual's record so long as the drug tests are negative, and the rules set forth by the diversionary program are followed.

When a person is found with possession of less than 50 grams of marijuana, no amount of marijuana is too small to avoid arrest. Even if an individual does not have any marijuana, but only has a pipe containing residue, that person will be charged with possession of less than 50 grams of marijuana and possession of drug paraphernalia which is also a disorderly persons offense. Common scenarios in which charges of possession of less than 50 grams of marijuana have resulted include when the police find a " joint or roach "in an ashtray, or a small plastic baggy containing the remnants of marijuana (i.e. crystals or red hairs), or even something as harmless as a baby marijuana seed or a broken stem. Just as almost anything can constitute possession of less than 50 grams of marijuana, almost anything can also constitute marijuana paraphernalia, even the little baggy containing nothing but crystal dust. Other items that constitute marijuana paraphernalia include rolling papers, bongs, pipes, chillums, one-hitters, scales, and jars. Thus, the item does not need to be used to smoke the marijuana to constitute paraphernalia. It can just as well be paraphernalia if used to transport the marijuana instead.

There are many defenses against possession of marijuana, especially in the constitutional realm. This is because when police find marijuana on a person, frequently the police have conducted a search of the person, the person's vehicle, their house or all three. Anytime there is a search involved, the search must be reasonable in light of the person's privacy expectations. Police must follow very strict rules when carrying out searches of individuals and their belongings, and any overstep of authority can be grounds to keep evidence out of trial. Additionally, once the police have obtained a suspect, they must follow specific rules with respect to questioning. The police must inform the accused that he has a right to an attorney, and if the accused requests an attorney, the police may not interrogate the accused unless and until the attorney arrives. Any interrogation that occurs in the meantime will result in the answers being withheld from trial. Thus, even if a person does not have an attorney it is important to ask for one, and to know that police are breaking the law if they try to interrogate you before the attorney arrives.

Another offense often coupled with charges of simple possession includes possession of drugs in a motor vehicle. This is a separate charge that will supplement charges for simple possession of marijuana and possession of marijuana paraphernalia. Thus, if a driver is pulled over and found with a nickel bag of marijuana, and a smoking pipe in the car, the driver will be charged with possession of less than 50 grams of marijuana, possession of drug paraphernalia, and possession of drugs in a car as three separate charges. Possession of drugs in a motor vehicle is a traffic offense involving fines and a mandatory 2 years loss of driving privilege.

When found with 50 grams of marijuana or more, the charges increase and unfortunately, so do the penalties. For 50 grams of marijuana or more, the charge becomes a 4th degree crime, which is one step above a disorderly persons offense, but a very important step because a 4th degree crime is an indictable crime so the charge must be brought in criminal court. The penalties for a conviction of a 4th degree marijuana crime include up to 18 months in prison and up to $25,000 in fines. Another circumstance that can severely enhance the penalties occurs when the arrest takes place in a public park or in a school zone, irrespective of whether the school is in session or there are children nearby. In such a case, a person may be subjected to severe community service penalties, in addition to the penalties listed above and a longer jail sentence.

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