After years of back and forth regarding the legalization of recreational marijuana citizens in the state overwhelmingly voted in favor of legalization. Their vote then returned the issue back to politicians in order for them to iron out the details of how our state will proceed with the sale and regulation of this new product in our legal markets. A sticking point for Governor Murphy has been measures to disincentivize use of the product by under-age individuals. Governor Murphy has sought to have the bill establish civil fines for underage use of marijuana.
Other components of the legislative debate have been related to revenue stream allocation, licensing issues and employment law concerns related to drug testing on the job.
What seems to be part of the hold-up regarding the penalties for underage use of marijuana is that those penalties, as they are written, contravene certain legislation passed to deal with issues of racial justice. Racial justice legislation has been at the forefront of the state legislature’s debate since the nation’s unrest in the summer following the killing of George Floyd. During that time, lawmakers in New Jersey passed measures to decriminalize marijuana. Said measures ended up stalled in the state house ahead of the November election. Now, those lawmakers are concerned that their effort to end arrests for marijuana possession will be in peril if affected by the language Governor Murphy has proposed related to underage use of marijuana.
Additional concerns are specifically related to the legislative delay. The constitutional amendment voted on by the people will take effect January 1, 2021. A failure by lawmakers to set timely parameters leaves our citizenry as well as law enforcement and the judiciary with a lack of guidance. That lack of guidance can cause individuals to take certain actions that land them in court. Without proper guidance, courts will be making decisions on a wide range of issues based on their own discretion.
A specific area of criminal law that may see major changes is fourth amendment search and seizure law. For many years police officers have been able to gain lawful entry into vehicles based on the “plain smell” doctrine. In sum and substance, police who are at a lawful car stop for a minor motor vehicle infraction, can allege that the smell of marijuana emanates throughout the vehicle. Said smell often leads to a car search that is upheld in courts throughout the State. While the car searches often begin based on minor infractions they can end in very serious charges being levied against an individual. For instance, a person who borrows a car from a friend who left a loaded firearm in that car. The borrower of the vehicle can end up facing prison time for weapons offenses.
How the constitutional amendment will affect the legality of police searches remains an unanswered question. Presumably, law enforcement and prosecutors will argue that the alleged smell of marijuana still provides them cause to search a vehicle. Those assertions will likely be made based on the fact that New Jersey prohibits driving while under the influence of liquor and narcotics. Additionally, police may argue that the smell of raw marijuana gives them suspicion that an amount beyond the legal limits is within a particular vehicle. It will be incumbent on the defense bar to make appropriate and thoughtful challenges on a case-by-case basis.
In sum, much remains unknown about the practical effect the state’s constitutional amendment will have on our citizenry. Those entities and individuals that act in the most effective and thoughtful manner will certainly be at an advantage when dealing with the myriad of commercial and legal issues that arise.