Legal Review: New Jersey Set to Consider Bills Legalizing Recreational Marijuana

By drug crimes attorney John B. Fabriele, III, who is barred and practices in the state of New Jersey, with John B. Fabriele, LLC.

Legislators in both the New Jersey House and Senate have introduced bills that would legalize the recreational use of marijuana, a move that would make New Jersey the tenth state to allow citizens to possess and use the drug.

The bills, which are not identical, both seek to achieve the goal of allowing New Jersey citizens to legally possess small amounts of marijuana while also creating the framework for production and sale of the drug.

Differences in the bill include the number of authorized “dispensaries,” which is where the drug would be sold, whether individuals can legally grow the plant in their homes, and the tax rate assessed on sales.

“Ultimately, however, the bills align with the stated goal of New Jersey Governor Phil Murphy, that being the legalization of marijuana,” said John B. Fabriele, III, a New Jersey Drug Crimes Lawyer. “Regardless of the outcome, individuals need to remember that marijuana continues to be a Schedule I narcotic under Federal law, meaning that transportation of legally-obtained marijuana across state lines can result in Federal drug charges.”

The conflict between Federal and state laws related to marijuana continue to be a problem. The reason is the concept of “preemption”. Article IV, Clause II of the United States Constitution is what is commonly called the Supremacy Clause, and it says that the Constitution and the laws of the United States are the “Supreme law of the land,” and that any state law that conflicts with Federal law is without effect.

Marijuana is considered by the Federal government to be a Schedule I drug, making its use and possession illegal, and under the Supremacy clause, any state law to the contrary may be invalid.

Federal law enforcement has, by and large, allowed states to carry out this legalization without interference or attempts to override state legislation.

What they have not done, however, is change Federal law, so anyone who is in possession of marijuana in accordance with State law is in violation of Federal law. If you were to transport that marijuana across state lines, or enter a location governed by Federal law (like an airport), you would be subject to Federal prosecution.

If New Jersey moves forward with legalization of marijuana, individuals who intend to take advantage of the change need to be acutely aware of how, when and where they possess and use the drug, and know their rights in terms of use and possession.

Lack of knowledge about a law is never a defense, and as it stands right now marijuana use and possession is still illegal in New Jersey and the United States overall. If that changes in New Jersey, be sure you understand how it has changed before you put yourself in a situation where your lawyer must explain it to you.