Interim Guidance Regarding Marijuana Decriminalization from Attorney General February 22, 2021

 Interim Guidance Regarding Marijuana Decriminalization 

  Attorney General February 22, 2021

      Governor Phil Murphy  on February 22, 2021 signed three bills changing the legal status of marijuana. These laws, which went into immediate effect, create a two-tier framework: 

•   Regulated cannabis. When the substance is bought, sold, and used under certain conditions, it is treated as “regulated cannabis” and fully legal in New Jersey. As a practical matter, however, regulated cannabis will not be available in the State for several months until a new government body, the Cannabis Regulatory Commission, issues rules governing its use. 


•   Marijuana and hashish. All forms of the substance that are not regulated cannabis or medical cannabis are treated as “marijuana” or “hashish.” Under the new laws, marijuana and hashish are still defined as “controlled dangerous substances” under N.J.S.A. 2C:35- 2 but are largely decriminalized for non-distribution offenses. The laws eliminate existing prohibitions and create new, more lenient penalties for possession and distribution that remain tiered based on weight. 
This document is designed to provide interim guidance to law enforcement officers regarding the treatment of marijuana and hashish under the new laws. In addition, today I am issuing a separate document answering a number of the questions most commonly asked by law enforcement officials about marijuana enforcement. My office will continue to update that document and post answers on our website in the coming weeks and months. In the meantime, all officers are encouraged to familiarize themselves with the three new laws, which are codified as chapters 16 (legalized cannabis), 19 (marijuana decriminalization), and 25 (clarifying provisions) of the 2021 Public Laws. 


Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf

•    I. New Limits on Marijuana and Hashish 

As of February 22, 2021, the following conduct no longer violates state law: 

•   Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b); 


•   Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b); 


•   Being under the influence of marijuana or hashish, 2C:35-10(b); 


•   Failure to properly dispose of marijuana or hashish, 2C:35-10(c); 


•   Possession of paraphernalia for marijuana or hashish, 2C:36-2; and 


•   Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1. 
In addition, the following weight thresholds now apply to the possession and distribution1 of marijuana and hashish: 


More than 6 oz. 6 oz. or less 

25 lbs. or more 5 lbs. or more 

More than 1 oz. 1 oz. or less 

More than 17 g. 3(b) 17 g. or less 4(b) 

5 lbs. or more 10(a) 1 lbs. or more 10(b) More than 5 g. 11(b) 5 g. or less 12(b) 

Fourth
Not a crime 

First Second Third
[See below] 

 

Possession – 2C:35-10
Marijuana	Hashish	Subsect.	Degree
Distribution – 2C:35-5(b)
Marijuana	Hashish	Subsect.	Degree

 

As part of these revised thresholds, the law creates a new framework for individuals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish: 

•   First offense. Officers shall issue a written warning to individuals for their first offense. In the coming weeks, law enforcement agencies will need to build new mechanisms to track the issuance of such warnings. In the interim, agencies should rely on existing resources to track warnings and, out of an abundance of caution, treat any individual’s offense as a first offense unless the officer has clear evidence of a prior violation. 


•   Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime. 
1 Under the new law, the prohibitions against distribution of marijuana also apply to possession with intent to distribute marijuana. Therefore, all references to “distribution” in this guidance document also apply to conduct that involves possession with intent to distribute. 


           In addition to these changes, law enforcement officers may no longer detain, arrest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. 

 

Instead, officers should collect the individual’s personal information and process them accordingly. Those offenses are: 

•   Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b); 


•   Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b); 


•   Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b); and 


•   Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b). 
All four of these offenses constitute fourth-degree crimes, except when an individual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-degree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons. 
Finally, 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. 


II. Special Rules for Those Under the Age of 21 

The law also establishes a new framework for individuals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school: 

•   First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth, but the warning shall not be provided to the individual’s parent or guardian. 


•   Second offense. Officers shall 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 shall 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 shall 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 shall provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning. 
Law enforcement officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that support a finding of the violation. As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codified at N.J.S.A. 2C:33- 15—will require law enforcement agencies to develop new mechanisms to track the issuance of these warnings. In the interim, agencies should use existing resources to track this information. Additional guidance on this issue will be forthcoming. 

Please note that, under this framework, officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an individual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S.A. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint- summons and fingerprinted at their first court appearance. 

The new law also prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana, hashish, cannabis, or alcohol, in violation of N.J.S.A. 2C:33-15(a)(1). Importantly, officers who violate these provisions may be charged criminally with depriving the individual of their civil rights, regardless of whether the officer intended to do so. Prohibited conduct includes: 

•   Officers shall not ask an individual under 21 for consent to search the person to determine a violation of that crime. (However, if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot, the individual may grant consent to search); 


•   The odor of marijuana, hashish, or alcohol no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of 21, nor does it provide probable cause to search the person’s personal property or vehicle to determine a violation of N.J.S.A. 2C:33-15(a)(1). 


•   The unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S.A. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law. 


•   An individual under the age of 21 who violates N.J.S.A. 2C:33-15(a)(1) shall not be arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. 


•    When responding to a violation or suspected violation of N.J.S.A. 2C:33-15(a)(1), law enforcement officers must activate their body worn cameras, which must remain activated throughout the encounter. 


Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf

Protocol for Matters that Cannot Proceed in a Remote Format Without Consent – In Furtherance of the Supreme Court’s Orders Dated April 20, 2020 and February 22, 2021 COVID-19

 Protocol for Matters that Cannot Proceed in a Remote Format Without Consent – In Furtherance of the Supreme Court’s Orders Dated April 20, 2020 and February 22, 2021 COVID-19 

February 23, 2021 Directive #06-21 

         This directive provides a protocol to support consistent management of cases that require the consent or lack of objection of all parties to proceed in a remote format during the temporary modifications necessitated by the ongoing COVID-19 pandemic, and for so long as court operations are not conducted primarily in person. It sets forth a series of steps (1) to memorialize on the record a party’s objection to proceeding remotely, or the inability of counsel to ascertain a party’s position; (2) to provide notice to the parties, attorneys, and other participants when a matter is scheduled for an in-person court event based on an objection to proceeding remotely; and (3) to provide an opportunity for participants to request individual adjustments and accommodations that will enable the scheduled court event to proceed. This protocol is applicable to the trial divisions of the Superior Court and to the Municipal Courts, subject to limited exceptions as noted. 

Court Events That Only Can Proceed Remotely if Parties do not Object
The Supreme Court in its April 20, 2020 Order affirmed the Judiciary’s commitment to continuing court operations in a remote format during the COVID- 

 

19 crisis. That April 20, 2020 Order carved out limited exceptions for particularly serious matters, which would proceed remotely only with the consent of all parties. The Court in its November 19, 2020 Order amended the provisions of the April 20, 2020 Order to provide that “the consent of the parties shall not be required for Family quasi-criminal (FO) matters to proceed remotely.” 

    The Court’s February 22, 2021 Order refined the language of the April 20, 2020 Order to avoid unintended delays in cases in which an attorney is unable to communicate with their client and to ascertain their position to proceeding remotely or in person. Accordingly, the Court’s February 22, 2021 Order provides: 

1.           The following matters will be conducted remotely using video and/or phone options only with the consent of all parties: 

a.                 Sentencing hearings in Criminal, Family Juvenile Delinquency (FJ), and Municipal matters; 


b.                 Juvenile delinquency adjudications; 


c.                 Evidentiary hearings and bench trials in Criminal matters; 


d.                 Evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license; 


e.                 Termination of parental rights trials; and 


f.                  Hearings for an adjudication of incapacity and appointment of a permanent guardian. 


2. For matters listed in paragraph 1, the consent of a party will not be required if the party is absent and unreachable. If, despite diligent efforts, an attorney cannot communicate with a client and therefore cannot advise the court of the client’s position as to proceeding remotely or in person, the court will determine whether to proceed remotely or in person. In making that determination, the court will consider all relevant factors, including the positions of other parties. 


Court Operations During the COVID-19 Pandemic 

   The Court entered its April 20, 2020 Order when court locations essentially were physically closed to the public. Limited in-person court events followed in “Phase 2” of the Court’s Post-Pandemic Plan, starting on June 22, 2020. As court buildings reopened, some matters proceeded to in-person hearings. In other cases, parties who previously had withheld consent changed their position and agreed to proceed remotely. 

      Throughout the ongoing COVID-19 pandemic, the Judiciary has continued to expand remote operations, including by increasing the numbers and types of events that are conducted using remote technologies. More than 145,000 remote events involving more than 1,800,000 participants have been conducted in the state courts. More than 1,200,000 additional cases have been scheduled for virtual hearings in the Municipal Courts. 

       At the same time, in-person court operations have waxed and waned based on COVID-19 trends and resource availability. Notwithstanding earlier brief interruptions, all state courts at present are supporting some degree of on-site presence and in-person operations, including for those matters that cannot be conducted remotely without consent. Additionally, Municipal Courts are regularly holding virtual hearings, with most municipal courts also able to schedule limited in-person hearings. 

     Those limited in-person events are being conducted in compliance with critical public health precautions. Consistent with the Court’s June 9, 2020 Order, all people who enter or occupy court facilities must wear masks or other face coverings, subject to narrow exceptions. Those requirements extend to individuals in courtrooms, subject to the discretion afforded judges to permit an individual to lower or remove their mask when other safeguards are in place, as described in the Judiciary’s September 22, 2020 notice. 

        In addition to the requirements to wear masks and maintain social distancing, state courthouses and all courtrooms are subject to reduced occupancy limits, rearrangement and removal of furniture, installation of sanitizing stations, and integration of plexiglass barriers, which steps are designed to minimize risks of disease transmission. Through these interlocking steps, the Judiciary is continuing to provide a safe forum for the adjudication of disputes, including those conducted in person in state court facilities. The Judiciary also is ensuring compliance with Supreme Court protocols that extend to courtrooms in Municipal Courts and is continuing to support municipalities that are responsible for areas outside of courtrooms. 

Commitment to Continuing Court Access and Case Resolution 

        The Court more than 10 months ago recognized the need to continue the administration of justice to the greatest extent possible even during an unprecedented public health crisis. At the same time, the Court acknowledged that in certain matters with potentially serious or permanent consequences or penalties, parties should have the right to appear in person before a judge, even when it would be technologically feasible to conduct the matter using remote technologies. The Court entered its February 22, 2021 Order to ensure that critical court events could proceed in an appropriate way, consistent with due process protections. 

      At this time, the courts are operating remotely to the greatest extent practicable. For those specific matters listed in the Court’s February 22, 2021 Order, three options are readily available: 

1.           A remote hearing can be held with the consent of all parties; or 


2.           If one or more parties object to proceeding remotely, the matter can be scheduled for an in-person hearing; or 


3.           Where a party’s position is unknown because, despite diligent efforts, their attorney cannot communicate with them to ascertain their position as to proceeding remotely or in person, the court may proceed either remotely or in person, taking into consideration all relevant factors, including the positions of other parties. 


Establishing Party Position as to Remote vs. In-Person Proceedings; Template Order Scheduling In-Person Hearing 

Effective immediately, for those court events listed in the Court’s February 22, 2021 Order, attorneys will be required to file a certification that their client does not consent to proceed remotely or that they are unable to communicate with their client and thus cannot advise the court of their preference. A template certification is provided as Attachment A. In matters involving self-represented litigants, the court may require a similar certification or may conduct a colloquy on the record as to the party’s position as to proceeding remotely or in person. The judge at a case management conference or earlier hearing may rely on an attorney’s representation that their client does not consent to a remote proceeding for the purpose of scheduling an in-person hearing date. In that situation, the attorney will be required to file the certification no later than the next business day. 

        If and as necessary, the court will enter an Order for In-Person Hearing.1 That order will schedule the in-person hearing and specify how notice will be served on all parties, attorneys, and other participants. To the extent practicable, the order will direct how other participants, including witnesses, will appear. It also will advise the parties, attorneys, and other participants of the availability to request an individual adjustment (e.g., use of a technology room to participate in a hearing from a separate courthouse location). The order will provide direction about how to direct any request for an accommodation pursuant to the Americans with Disabilities Act. Importantly, the order will advise the parties of the consequences of not appearing for the scheduled in-person hearing.  Conclusion and Questions 

It is axiomatic that justice delayed can be justice denied. In the context of significant court events that affect public safety, the welfare of children, and the protection of incapacitated persons, the Judiciary must not permit the COVID-19 pandemic to serve as a basis for indefinite delay. Accordingly, this directive provides a protocol to ensure that matters proceed consistent with the framework 

1 The attached exemplar order is optional, not mandatory and should be used as appropriate. The intent is not to require multiple court orders. In Criminal and other matters with standard scheduling orders, judges simply should ensure that relevant content – including the consequences for a failure to appear – is addressed in the scheduling order. The template also could be customized as an Order or Notice for use by Municipal Courts. 

2 The attached order is appropriate for situations in which a party has communicated directly or through counsel that they do not consent to a remote hearing. It is not appropriate for a situation in which an attorney is unable despite diligent efforts to ascertain or advise the court of their client’s position. In that latter situation, the scheduling order should state how the hearing will be conducted (remotely or in person), which, as noted above, is left to the discretion of the court after considering the positions of other parties. 

established by the Court’s April 20, 2020 Order and refined by the Court’s February 22, 2021 Order. 

  Attachment A 

Certification of Counsel – Lack of Consent or Unknown Position as to Proceeding Remotely 

Plaintiff 

Defendant 

I, follows: 

1.           I represent 


2.           The court on
proceeding in the above matter, which pursuant to the Supreme Court’s February 22, 2021 Order cannot proceed remotely without the consent of all parties. 


3. [ ] Option 1: I have advised my client that pursuant to the Supreme Court’s February 22, 2021 Order, this matter cannot proceed remotely over their objection. 

a. I have further advised my client that in the absence of consent to proceed remotely, the court will schedule this matter for an in-person hearing. 

SUPERIOR COURT OF NEW JERSEY Example County 

DOCKET NO.: 

Civil Action 

Certification – Lack of Consent or Unknown Position as to Proceeding Remotely 

, an attorney at law of the State of New Jersey, certify as 

in the above matter. 

proposed to schedule a remote 

 

b.           I have informed my client of (a) the options for participating in remote court events, including through use of technology provided by the Judiciary; and (b) the public health precautions implemented by the Judiciary to prevent exposure to the COVID-19 coronavirus. 


c.            I have advised my client that even for an in-person hearing, the court will determine how other participants, including witnesses, will participate (including whether they will be required to appear in person or to participate remotely). 


d.           My client, , has advised me that my client does not consent to proceed remotely and understands that based on that lack of consent this matter will be conducted in person. 


[ ] Option 2: Despite diligent efforts, including 

,I have been unable to communicate with my client. Accordingly, I cannot 

advise the court of my client’s position about proceeding remotely or in person. 

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment 

Date: Signature: Name: 

Directive # 06-21 February 23, 2021 Page 9 

Attachment B
Certification of Party – Lack of Consent to Proceed Remotely 

Plaintiff 

Defendant 

-vs- 

Plaintiff 

Defendant 

SUPERIOR COURT OF NEW JERSEY Example County 

DOCKET NO.: 

Civil Action 

Certification – Lack of Consent to Proceed Remotely 

I,
1. 

2. 3. 

, certify as follows: I am the . 

The court on
proceeding in the above matter. 

proposed to schedule a remote 

I understand that pursuant to the Supreme Court’s February 22, 2021 Order, this matter cannot proceed remotely over my objection. 

a.            I understand that in the absence of consent to proceed remotely, the court will schedule this matter for an in-person hearing. 


b.           I have been informed of (a) the options for participating in remote court events, including through use of technology provided by the Judiciary; and (b) the public health precautions implemented by the Judiciary to prevent exposure to the COVID-19 coronavirus. 


Directive # 06-21 February 23, 2021 Page 10 

c. I understand that even for an in-person hearing, the court will determine how other participants, including witnesses, will participate (including whether they will be required to appear in person or to participate remotely). 

4. I do not consent to proceed remotely. I understand that based on my lack of consent this matter will be conducted in person. 

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment 

Date: Signature: Name: 

Directive # 06-21 February 23, 2021 Page 11 

Attachment C
Model Order Scheduling In-Person Hearing 

Plaintiff 

Defendant 

-vs- 

Plaintiff 

Defendant 

SUPERIOR COURT OF NEW JERSEY Example County 

DOCKET NO.: 

Civil Action 

Order Scheduling In-Person Hearing 

This matter is opened to this court on its own motion. Pursuant to the Supreme Court’s February 22, 2021, this matter cannot be conducted remotely if a party objects to the remote format. [If applicable: The court has considered the certifications of or has questioned
orally on the record regarding consent to proceed remotely.] At this time, one or more parties has objected to proceeding remotely. 

Accordingly, IT IS on this ____ day of _______________, 2021; ORDERED as follows: 

1.           This matter is scheduled for an in-person hearing at the courthouse on , 2021 at . 


2.           The parties, attorneys, and all participants in the hearing are subject to the Supreme Court’s June 9, 2020 Order requiring face masks and social distancing, subject to narrow limitations, including for temporary removal of face masks in a courtroom if directed by a judge based on the availability of other safeguards. 


3. Notice of the in-person hearing shall be served on the parties as follows: 

 

[Insert appropriate option(s), which may include service by certified and regular mail at the last known address of a party who has not appeared or participated in earlier proceedings.] 

4.           Notice of the in-person hearing shall be served on other participants in the hearing as follows: 
[Insert appropriate option(s)] 


5.           Although the hearing will be conducted with the parties appearing in person, the court has determined that the following participants may participate using appropriate remote technology: 
[Insert appropriate individuals, including witnesses] 


6.           Consistent with the Supreme Court’s COVID-19 Omnibus Orders, the court will accommodate the legitimate needs of parties, attorneys, and all court users, including, as appropriate, by adjusting the manner in which individuals participate in court events. Any request for an adjustment, including to use technology provided by the Judiciary to participate from a technology room within the court facility, must be submitted by 
, 2021. Such requests must not include confidential medical information. 


7.           Any request for an accommodation pursuant to the Americans with Disabilities Act must be directed to . 


8.           The court may supplement this order if and as necessary. Absent further court order, the matter will proceed as scheduled. Failure to appear for the in-person hearing may result in [insert appropriate options]. 
_________________________ Hon. ______________, J.S.C.