What’s Legal and Still Illegal Under New Jersey’s New Marijuana Laws?

What’s Legal and Still Illegal Under New Jersey’s New Marijuana Laws?

Gov. Phil Murphy signed landmark cannabis legislation into law on February 23, 2021...

Gov. Phil Murphy signed landmark cannabis legislation into law on February 23, 2021. In total, Gov. Murphy signed three bills. Assembly Bill 21, also known as the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” establishes the rules and regulations for the legal recreational cannabis industry. Meanwhile, Assembly Bill 1897 decriminalizes marijuana, and Assembly Bill 5342 reforms the marijuana use and possession criminal penalties for minors.

Together, the legislation represents a significant change in the way marijuana is treated under New Jersey state law. Of course, the devil is in the details. Here’s a brief summary of what is legal and what is still illegal in New Jersey. 

Adult Recreational Use and Possession

In short, it’s legal for adults who are 21 or older to purchase, possess, and use small amounts of cannabis.  But the cannabis has to be legally purchased, and the adult-use market described in the laws enacted on Monday does not exist yet.  So until the new market is established, only patients in New Jersey’s medical marijuana program may legally purchase and use cannabis in the Garden State.     

For adults 21 and older, the possession of up to six ounces of marijuana is completely decriminalized. Assembly Bill 1897 expressly states “possession of six ounces or less of marijuana, including any adulterants or dilutants, or five grams or less of cannabis resin, is not subject to any punishment, as this possession is not a crime, offense, act of delinquency, or civil violation of law.” It is also no longer a crime to be under the influence of marijuana or hashish or fail to properly dispose of it. Using or possessing drug paraphernalia to ingest, inhale, or otherwise introduce marijuana or hashish into the human body is also no longer considered an illegal act.

The new law also establishes a new framework for individuals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish, with the first offense resulting in a written warning. In addition, the odor of marijuana or hashish, either burnt or raw, by itself no longer establishes “reasonable articulable suspicion” to initiate a stop or search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense.

Cannabis Users Under 21

Individuals under the age of 21 will no longer face arrest or penalties if caught with any amount of alcohol or marijuana in any public place. Instead, Assembly Bill 5342 makes the underage possession or consumption of an alcoholic beverage, marijuana, hashish, or any cannabis item subject to the following consequences:

• First offense: Officers will issue a written warning, which must include the person’s name, address, and date of birth, but the warning will not be provided to the individual’s parent or guardian.
• Second offense: Officers will issue a written warning, and also provide the person with informational materials on community drug treatment services. For individuals under the age of 18, the officer will provide the individual’s parent or guardian with copies of the warnings issued for both the first and second offenses.
• Third or subsequent offense: Officers will issue a written warning and again provide the individual with information on community drug treatment services. If the individual is between 18 and 21, then the officer will provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer will again provide the juvenile’s parents or guardian with a copy of the written warning.

Additionally, the odor of alcoholic beverages or marijuana will not constitute reasonable articulable suspicion to initiate an investigatory stop of a person or constitute probable cause to initiate a search of a person or that person’s personal property to determine an underage possession or consumption violation. Also, the unconcealed, underage possession of an alcoholic beverage, marijuana, hashish, or cannabis item, observed in plain sight by a law enforcement officer, will not constitute probable cause to initiate a search of a person or that person’s personal property to determine any further unlawful possession or consumption violation or any other violation of law.

Cannabis Consumption Areas

While cannabis may be legal, users must be mindful of where they consume it. Smoking, vaping, or aerosolizing cannabis in public places will still be prohibited, and would be prohibited in any place pursuant to law that prohibits the smoking of tobacco, including most indoor public spaces.  Notably, however, Assembly Bill 21 authorizes consumption lounges at approved cannabis retailers and medical cannabis dispensaries.

Home Grow Not Allowed

Unlike most other states that have legalized cannabis, New Jersey residents can’t grow their own marijuana for medicinal or recreational purposes. Cannabis may only be grown for commercial purposes, and such “cultivation” requires a license from the state.

Restrictions by Employers, Landlords, and Others

Landlords and other businesses may still prohibit the consumption of marijuana on their property. The new law specifically provides that “the smoking, vaping, or aerosolizing of marijuana or hashish may be prohibited or otherwise regulated on or in any property by the person or entity that owns or controls that property.”

Employers may also prohibit cannabis in the workplace. For instance, employers can require random testing, or testing as part of a pre-employment screening, or regular screening of current employees to determine use during an employee’s prescribed work hours. In addition, employers can utilize the results of any such drug test when determining the appropriate employment action concerning the employee.

Employers can also require an employee to undergo a drug test upon reasonable suspicion of an employee’s usage of a cannabis item while working, or upon finding any observable signs of intoxication related to cannabis use, or following a work-related accident subject to investigation by the employer.

Nonetheless, employers are prohibited from firing or refusing to hire a person who uses cannabis on their own time. Assembly Bill 21 states: “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.”

Violations of Parole or Pretrial Release

Generally, probationers and defendants on pretrial release may not be prohibited from legal cannabis consumption. With regard to pretrial release, the law states that “the court’s order shall not refrain the eligible defendant from using marijuana or hashish.” With regard to the conditions of probation, the law further states: “The member or board panel certifying parole release shall not impose on any parolee any condition that would prohibit or restrict … the presence of any cannabinoid metabolites in any bodily fluids of the person.”

What’s Next?

The Office of Attorney General Gurbir Grewal has established a website dedicated to Marijuana Decriminalization & Cannabis Legalization. Attorney General Grewal has also issued guidance to prosecutors and law enforcement, which is available on the new website. The directive to law enforcement directive instructs state, county, and municipal prosecutors to dismiss charges pending as of February 22, 2021, for any marijuana offense that is no longer illegal under state law.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

• Is It Time to Apply for a Recreational Cannabis License in New Jersey?
• Change of Administration Delaying CBD and Hemp Regulations
• USDA Unveils Final Hemp Rule – Key Takeaways for the Cannabis Industry

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.