Drug possession charges in New Jersey after cannabis legalization

Marijuana after the 2021 laws

New Jersey voters approved adult-use cannabis in November 2020, and the enabling laws were signed and took effect on February 22, 2021. Under N.J.S.A. 2C:35-10 as amended, possessing six ounces or less of marijuana, or 17 grams or less of hashish, is not a crime, offense, act of delinquency or civil violation.

Possessing more than six ounces of marijuana, or more than 17 grams of hashish, is a fourth degree crime. The smell of marijuana, by itself, is no longer enough to justify a stop or search for possession. Using marijuana is also not punishable under the 'under the influence' part of the statute, though landlords and property owners can still restrict smoking on their premises.

Driving while high is a different story. Operating a vehicle under the influence of cannabis can still lead to a DWI charge.

If you are under 21

People under 21 cannot legally possess or use cannabis, but the consequences are civil, not criminal. According to Attorney General guidance, a first violation brings a written warning, a second brings a warning plus information about community services, and a third brings a referral. Parents are notified if the person is under 18.

Officers cannot fingerprint, photograph, arrest or search a young person for cannabis possession alone, and odor alone is not a basis for this violation. Possessing more than six ounces is still a fourth degree crime at any age.

Possession of other drugs (CDS)

For drugs other than cannabis, the main possession statute is N.J.S.A. 2C:35-10(a). Possessing a controlled dangerous substance without a valid prescription is generally a third degree crime when the drug is in Schedules I through IV. That includes cocaine, heroin, methamphetamine and many prescription pills like oxycodone or Xanax without a prescription. A third degree crime carries a possible 3 to 5 years in prison and a fine of up to $35,000.

Schedule V substances are a fourth degree crime. Using or being under the influence of a CDS (other than cannabis) is a disorderly persons offense, as is failing to turn drugs over to police. Charges for possession with intent to distribute, or possession near a school, are separate and more serious.

• Schedule I to IV CDS: third degree, up to 5 years, fine up to $35,000
• Schedule V CDS: fourth degree, up to 18 months, fine up to $15,000
• Under the influence of CDS: disorderly persons offense
• Failure to deliver CDS to police: disorderly persons offense

Diversion: conditional discharge and PTI

New Jersey offers first-time drug defendants a path to dismissal rather than conviction.

Conditional discharge (N.J.S.A. 2C:36A-1) is for disorderly persons and petty disorderly persons drug offenses, usually in municipal court. You must not have a prior drug conviction or have used diversion before. The court places you on supervision for up to three years, and if you comply, the case is dismissed without a finding of guilt. There is a $75 fee plus other assessments, and it can be used only once.

Pretrial Intervention (PTI) is the Superior Court program for indictable charges, including third degree CDS possession. The prosecutor decides whether to admit you, supervision lasts from one to three years, and successful completion means the charges are dismissed. PTI is also generally a one-time opportunity.

Clearing your record

The 2021 laws directed courts to vacate many past marijuana and hashish cases, including guilty pleas and diversion placements in cases before February 22, 2021, and prosecutors were required to seek dismissal of pending charges for those offenses.

For other drug cases, New Jersey's expungement law offers several paths depending on the number and type of convictions and how much time has passed. Dismissed charges and completed PTI or conditional discharge cases can generally be expunged as well. Petitions can be filed online through the Judiciary's eCourts expungement system, and the Office of the Public Defender has a unit that helps with them.

Other consequences to think about

A drug case can affect more than your record. It can matter for immigration status, professional licenses, student aid, employment and housing. If you are not a U.S. citizen, even a dismissed case or a diversion program can have consequences, so get advice before entering any plea.