While we anxiously await the outcome of a tight Presidential race, you may have missed that voters in New Jersey overwhelmingly voted in favor of an amendment to the State Constitution that will essentially and at long last legalize marijuana in this State. We can now put aside the arguments that shaped the debate about this amendment, such as whether marijuana is a gateway drug versus the astonishingly higher rate at which minorities had been arrested for marijuana related offenses. It passed and it was not even close. What are the things, however, that should concern us now? Whether you are an avid marijuana smoker, a recreational user or just someone who has been waiting for marijuana’s legalization, these are certain things you should immediately be aware of from a legal standpoint.
First and foremost, please do not assume that you can start smoking with impunity on the day after election day. MARIJUANA IS STILL ILLEGAL, and it will remain so until the State legislature passes the laws outlining just how legal pot will be. This voter referendum has given the State’s lawmakers the ability to pass necessary legislation implementing a new set of marijuana laws. This will include where it can be bought, how much you can buy, where it can be smoked and so on.
Additionally, even after the laws defining marijuana are passed there will be concerns for the consumer. Beyond a shadow of a doubt, law enforcement increasingly will be on the lookout for driving under the influence of marijuana. This means that the smell of marijuana coming from your car or off of the sweatshirt in your backseat from when you smoked last week is going to immediately alert that officer to a possible DUI at a rate we have never seen before. So, the debate as to whether or not the search of a vehicle/bicycle or the like is warranted or not will continue to be hotly debated as seen in many cases including State v. Witt.
Another concern is that marijuana remains illegal under federal law. It is a strange juxtaposition for people to understand this jurisdictional divergence inasmuch as you would be in a state where marijuana is legal but, in a country where it is not. Rest assured that if you are on federal land, Sandy Hook, for example, you can and will continue to be arrested for marijuana possession. Thus, any thought of simply placing your bag of marijuana on the conveyor belt on your way into the federal Courthouse or even in a post office is still illegal.
Which brings us to the next point. Marijuana remains illegal in both the neighboring states of New York and Pennsylvania. The concern for those states is that people will be crossing the border simply to buy marijuana. The reverse concerns for citizens of New Jersey should be the opposite. It will not be a defense for you to simply tell the officer in the Bronx who catches you smoking in the parking lot before the Yankees game or the Park Ranger interrupting your camping trip at the Delaware Water Gap, “Hey, man, it’s ok. I’m from Jersey.”
It should go without saying that selling marijuana will remain illegal. How enforced it will be or if it will be some sort of regulatory issue as opposed to a criminal one remains to be seen, but this amendment does not turn your ownership of marijuana into a suddenly legitimate lucrative venture.
Another issue: there is no telling how judges and probation departments will treat legal marijuana use by convicted defendants serving probationary sentences. If you are on probation and continually drug tested, it may still be a violation of probation that could land you in State Prison. I have seen many a Judge forbid a client from the consumption of alcohol, which unless you show up to your probation appointment drunk would be fairly hard to enforce. Marijuana stays in the system for weeks. It will be easily enforceable as a condition of probation most likely in the foreseeable future.
As the laws legislating this new reality come to light there may be other concerns to worry about, like age, weight and use-location restrictions and how that relates to law enforcement; or the attitude of private employers and drug testing. Until then, stay tuned. Wait for the laws to officially pass before hosting that big pot party you had planned or lighting up in the park. Also, do not forget that if you failed to heed this advice, an experienced criminal defense attorney could make the difference.