Marijuana Charges in New Jersey After Legalization: What's Still a Crime

Recreational cannabis is legal for adults in New Jersey, but that doesn't mean every marijuana charge has disappeared. Police still arrest people, and prosecutors still file charges, when quantities exceed the legal limits, when there's evidence of selling, or when cannabis is combined with driving.

The 2021 decriminalization law, P.L. 2021, c.19, rewrote New Jersey's marijuana offenses. Here's what's legal, what's still a crime, and what changed for people with old marijuana records.

Possession: what's legal and what isn't

Under the amended N.J.S.A. 2C:35-10(a)(4)(b), possessing six ounces or less of marijuana, or 17 grams or less of hashish, "is not subject to any punishment." The law says this possession "is not a crime, offense, act of delinquency, or civil violation of law."

Above those amounts, possession is still a crime. Under N.J.S.A. 2C:35-10(a)(3)(b), possessing more than six ounces of marijuana, or more than 17 grams of hashish, is a fourth-degree crime. The statute allows a fine of up to $25,000, which is higher than the usual fourth-degree maximum.

Weight matters, and the statute counts "any adulterants or dilutants." In cases near the six-ounce line, how the substance was weighed, and what was included in the weight, can make the difference between no offense and an indictable crime.

Distribution: small amounts get a warning first

Selling or possessing marijuana with intent to distribute is still illegal outside the licensed market. The amended N.J.S.A. 2C:35-5(b) grades distribution by quantity:

Notice the plant counts. Growing marijuana at home without a license can be charged as distribution based on the number of plants, regardless of weight. Ten plants can be a second-degree crime.

Distribution charges can also bring enhanced penalties when they happen near a school or other protected area.

Odor alone isn't a reason to search you

One of the most important changes concerns searches. For the low-level offenses covered by the new law, the statute says:

"The odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a person..."

This language appears in both N.J.S.A. 2C:35-10 (possession over six ounces) and 2C:35-5 (distribution of one ounce or less). The law also says a person committing those violations can't be arrested, detained, or taken into custody for them alone, unless they're also being arrested for something else.

These limits matter in court. If police searched you, or your belongings, based on the smell of marijuana, a motion to suppress the evidence may be possible. Searches of vehicles, and DWI investigations, involve additional rules. Have a lawyer review exactly how the search happened.

Paraphernalia is no longer an offense for marijuana

Under the amended N.J.S.A. 2C:36-2, using or possessing drug paraphernalia is still a disorderly persons offense for other controlled dangerous substances, but not when it's used to consume marijuana or hashish.

Property owners, including landlords, condominium associations, and mobile home parks, can still prohibit or regulate it on their property.

Driving is a different story

Legal possession doesn't make it legal to drive while impaired. N.J.S.A. 39:4-50 still prohibits operating a vehicle under the influence of a narcotic, hallucinogenic, or habit-producing drug, which can include cannabis.

Drug-impaired driving cases don't depend on a breath reading. They often rely on officer observations, drug recognition evaluations, and blood tests. Those methods can be challenged in court.

Old marijuana convictions

The 2021 law also addressed past cases.

• Automatic expungement. Under N.J.S.A. 2C:52-6.1, cases with a conviction or delinquency adjudication solely for low-level marijuana or hashish possession or distribution offenses were expunged by operation of law. Related paraphernalia charges, and other offenses that qualified for conditional discharge, were included. Remaining sentences, supervision, and unpaid court-ordered financial assessments were vacated.
• Pending cases. Under N.J.S.A. 2C:35-23.1, prosecutors were barred from pursuing many pending low-level marijuana charges, and those cases were to be dismissed.

If your case included other charges

The automatic relief applied only when the case involved only qualifying marijuana offenses. If your case included other charges, such as a weapons offense, an assault, or a more serious drug charge, your record may still need a regular expungement petition under N.J.S.A. 2C:52-1 et seq.

Check your record, and don't assume it was cleared. Background-check companies sometimes keep outdated information. A lawyer can review your court history and file what's needed.

Your rights can't be taken away for a low-level violation

For violations of the amended low-level provisions, the law says a person can't be deprived of legal rights, privileges, or benefits solely because of the violation. The protected areas include professional licenses and permits, financial and housing assistance, and child custody or proceedings involving the Division of Child Protection and Permanency.

What to do if you're charged

1. Don't explain the quantity or where it came from. Weight and intent are often the whole case.
2. Ask how the search happened. Odor-based searches are a key issue under the new law.
3. Request the lab report and weight documentation. Packaging, moisture, and what was included in the weight can matter.
4. Check your record for past marijuana cases, and confirm whether they were expunged.
5. Don't plead guilty before a lawyer reviews your case. Diversion such as PTI may be available for first-time indictable charges.

How we help

The Law Office of Edward Appel defends marijuana possession, distribution, and cultivation charges throughout New Jersey. We challenge odor-based and other unlawful searches, scrutinize lab weights and plant counts, and push for dismissals, downgrades, or PTI where appropriate. We also help clients confirm that old marijuana convictions were cleared, and file expungements when they weren't.

Call 856-823-1117 for a free, confidential consultation.

Disclaimer: This article is general information about New Jersey law, not legal advice, and reading it does not create an attorney-client relationship. Laws change and every case turns on its facts. Call 856-823-1117 to discuss your situation.