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  • Edward B. Simonson, Esq.

Recreational Marijuana Use Remains Hazy

RECREATIONAL MARIJUANA USE IS LEGAL, BUT TECHNICALLY IT IS STILL A CRIMINAL OFFENSE…FOR NOW


This year, New Jersey went to the polls in force and voted to amend the New Jersey Constitution to legalize the use of recreational marijuana. This Constitutional Amendment will go into effect on January 1, 2021. However, recreational marijuana use and possession remains a criminal offense in New Jersey until the New Jersey Legislature passes legislation decriminalizing it. This has created a unique situation where the people of New Jersey have legalized recreational marijuana use but it remains a criminal offense. . . .for now.


Fortunately for recreational marijuana users, New Jersey’s “Top Cop”, Attorney General Gurbir Grewal is a smart guy and realizes that this creates a problem for our police officers who are trying to do their jobs and recreational marijuana users whose rights to smoke marijuana will be protected by the New Jersey State Constitution. On November 25, 2020, Attorney General Grewal issued a directive advising Prosecutors on how to proceed with marijuana prosecutions until the New Jersey Legislature passes legislation decriminalizing marijuana. The Attorney General Grewal’s directive instructs all state, county, and municipal prosecutors to postpone any pending adult or juvenile prosecutions for the following marijuana related offenses until at least January 25, 2021:


1. Possession of marijuana or hashish in violation of N.J.S.A. 2C: 35-10(a)(3);

2. Possession of marijuana or hashish in violation of N.J.S.A. 2C:35-10(a)(4);

3. Being under the influence of marijuana or hashish in violation N.J.S.A. 2C: 35-10(c);

4. Failure to make lawful disposition of marijuana or hashish in violation of N.J.S.A. 2C:35-10(d);

5. Use or possession with intent to use drug paraphernalia under N.J.S.A. 2C:36-2 involving only marijuana or hashish;

6. Possession of a controlled dangerous substance while operating a motor vehicle in violation of N.J.S.A. 39:4-49.1 involving only marijuana or hashish; and

7. Any disorderly persons offense or petty disorderly persons offense subject to conditional discharge pursuant to N.J.S.A. 2C:36A-1 involving only marijuana or hashish


Attorney General Grewal’s directive is unprecedented, but it is not unlimited in scope. The directive only applies to those charged with any of the offenses listed above. If someone has pending charges for recreational marijuana use or possession and pending charges not related to recreational marijuana use or possession, Attorney General Grewal has instructed prosecutors to use their discretion to postpone the case in its entirety, or seek a dismissal of the marijuana charges only and proceed with prosecuting the non-marijuana related charges.


For example, if someone has been charged with possession of cocaine pursuant to N.J.S.A. 2C: 35-10(a) and possession of marijuana or hashish pursuant to N.J.S.A. 2C:35-10(a)(3) from the same incident, the prosecutor may, in their discretion, postpone the entire case or seek a dismissal of the possession of marijuana charge and proceed with the possession of cocaine charge.


However, Attorney General Grewal’s directive does not all apply to any pending prosecutions for marijuana distribution. The directive indicates that Prosecutors are to proceed in the normal course with cases involving the distribution of marijuana or the possession of marijuana with intent to distribute.

In short, only recreational users, not sellers, may see their cases postponed or dismissed under the Attorney General’s directive pending full decriminalization of recreational marijuana use by the New Jersey Legislature. It appears likely that once recreational use is decriminalized the law will require any marijuana seller to be licensed by the State of New Jersey.


If you have been charged with a crime related to recreational marijuana use or marijuana distribution contact The Simonson Law Firm today to find out what your rights are.

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