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NJ Marijuana Legalization – Report of a Deal, but Don’t Hold Your Breath (yet)

Gov. Phil Murphy and Senate President Steve Sweeney have reportedly reached an agreement that will pave the way toward marijuana legalization in New Jersey, possibly by the end of the month.  The major hurdle has been what most major legislation always revolves around – money, in this case, tax revenue.  The reported agreement calls for a flat tax rate of $42 for an ounce, $21 for a half-ounce, $10.50 for a quarter-ounce or $5.25 for an eighth-ounce.  Now that an agreement on a tax rate has been reached, the path forward has become clearer. 

Although it is no surprise that the potential financial gain has been the sticking point, the official findings in support of the proposed legislation, titled the "Marijuana Legalization Act", actually point mostly towards the efforts it makes in the form of criminal justice reform.  It notes that it aims to “eliminate the problems caused by the unregulated manufacture, distribution, and use of marijuana within New Jersey”, and “divert funds from marijuana sales from going to illegal enterprises, gangs, and cartels.”

It also makes findings that simultaneously support both goals of criminal justice reform and revenue generation.  It notes that “New Jersey spends approximately $127 million per year on marijuana possession enforcement costs.”  Even more significant than the costs are the statistics cited regarding the amount of people, particularly Black New Jerseyans, impacted by the staggering amount of marijuana arrests in recent years:   

  1. New Jersey law enforcement officers made over 24,000 arrests for marijuana possession in 2012, more than in the previous 20 years;
  2. In 2012, a person was arrested for marijuana possession in New Jersey approximately every 22 minutes;
  3. Black New Jerseyans are nearly three times more likely to be arrested for marijuana possession than white New Jerseyans, despite similar usage rates;
  4. Marijuana possession arrests constituted three out of every five drug arrests in New Jersey in 2012;

While most of the findings concern decreased level of law enforcement, it also stresses that the new law would result in increased enforcement when it comes to underage possession.  It states that “it will prevent the sale or distribution of marijuana to persons under 21 years of age”.  Specific provisions of the Act create criminal violations in the form of disorderly persons offenses for any dispensary employee who that sells to a person under 21 and for any person under 21 who possesses marijuana.    

Also, on the criminal justice front, the Act provides that all persons convicted of possession of marijuana at any point prior to new law, can petition for expungement of the conviction.  No details of the expungement process are referenced in the legislation.  That would include whether the $75 expungement fee is waived and whether the normal expungement petition procedure has to be followed.  That would include filing of a petition, a proposed order, and other documents, and proof of service upon multiple parties by certified mail.  Lastly, the New Jersey State Police currently takes approximately six (6) months or more to remove a conviction from the official state record, after the expungement order has been signed. 

Lastly, the Act also spells out what would otherwise necessarily become true under state and federal search and seizure precedent upon legalization.  It notes specifically that “the odor of marijuana or burnt marijuana shall not constitute reasonable articulable suspicion of a crime”.    What that finding does not address is when the odor is combined with a person under 21, who will not be permitted to possess marijuana, or when the odor is detected near a driver who might be under the influence.  Driving while under the influence of marijuana is currently illegal and will certainly remain illegal under the new law.  Enforcement of that issue has historically been extremely difficult, and that continues to be a major hurdle for lawmakers.  There is no breath test for marijuana readily available, and it can stay in a person’s system for as much as 30 days, so a urine test and blood test is also problematic as a means of proof. 

For all these reasons, the light at the end of the tunnel towards legalization is getting brighter, but a lot of clouds still remain, so don’t hold your breath (yet). 

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