2C:36-2 Use or possession with intent to use, disorderly persons offense. 2C :36-1 . Drug paraphernalia, defined; determination.

2C:36-2  Use or possession with intent to use, disorderly persons offense.
2C:36-2. Use or possession with intent to use, disorderly persons offense.

It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. Any person who violates this section is guilty of a disorderly persons offense.

2C :36-1 .   Drug paraphernalia, defined; determination.
As used in this act, "drug paraphernalia" means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title.  It shall include, but not be limited to:  a. kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled dangerous substance or from which a controlled dangerous substance can be derived; b. kits used or intended for use in manufacturing, compounding, converting, producing, processing, or preparing controlled dangerous substances or controlled substance analogs; c. isomerization devices used or intended for use in increasing the potency of any species of plant which is a controlled dangerous substance; d. testing equipment used or intended for use identifying, or in analyzing the strength, effectiveness or purity of controlled dangerous substances or controlled substance analogs; e. scales and balances used or intended for use in weighing or measuring controlled dangerous substances or controlled substance analogs; f. dilutants and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting controlled dangerous substances or controlled substance analogs; g. separation gins and sifters used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana; h. blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled dangerous substances or controlled substance analogs; i. capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled dangerous substances or controlled substance analogs; j. containers and other objects used or intended for use in storing or concealing controlled dangerous substances, controlled substance analogs or toxic chemicals; k. objects used or intended for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, hashish oil, nitrous oxide or the fumes of a toxic chemical  into the human body, such as (1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips, meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (6) miniature cocaine spoons, and cocaine vials; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; (15) chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and (16) tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical. 

   In determining whether or not an object is drug paraphernalia, the trier of fact, in addition to or as part of the proofs, may consider the following factors:  a. statements by an owner or by anyone in control of the object concerning its use; b. the proximity of the object of illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals; c. the existence of any residue of illegally possessed controlled dangerous substances, controlled substance analogs or toxic chemicals on the object; d. direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use as drug paraphernalia; e. instructions, oral or written, provided with the object concerning its use; f. descriptive materials accompanying the object which explain or depict its use; g. national or local advertising whose purpose the person knows or should know is to promote the sale of objects intended for use as drug paraphernalia; h. the manner in which the object is displayed for sale; i. the existence and scope of legitimate uses for the object in the community; and j. expert testimony concerning its use.

39:4-49.1 Drug possession by motor vehicle operator

39:4-49.1 Drug possession by motor vehicle operator 
    No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the "New Jersey Controlled Dangerous Substances Act," P.L. 1970, c. 226 (C. 24:21-1 et seq.) or  any prescription legend drug, unless the person has obtained the substance or  drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in man or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance.

   A person who violates this section shall be fined not less than $50.00 and shall forthwith forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction.

   This means a mandatory two year license suspension with no ability to drive to work, school, etc. It is important to get this ticket dismissed. It is not subject to Conditional Discharge. The Judge has no discretion to not suspend your license for two years if you plead guilty or are found guilty.

  You need to have your attorney either win at trial or negotiate to have this charge dismissed.

CONDITIONAL DISCHARGE TO DISMISS MUNICIPAL COURT DRUG CHARGES for first time offenders

 CONDITIONAL DISCHARGE TO DISMISS MUNICIPAL COURT DRUG CHARGES for first time offenders

By Kenneth Vercammen, Certifed Municicpal Court Attorney

The defense of a person charged with possession of drugs or drug paraphernalia is not impossible. Attorneys should not merely suggest that their client plead guilty to save a few dollars. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances (CDS). More info at

http://www.njlaws.com/conditional_discharge_first_time_drug_offenders.html.

        The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;

NJSA 2C:35-10(b), using or being under the influence of CDS;

NJSA 2C:35-10(c), failure to deliver CDS to police;

NJSA 2C:36-2, possession of drug paraphernalia

      Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.

      Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

       If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.

         The defense attorney can make a Motion, upon notice to the prosecutor and subject to 2C:36A‑1(c) for first offenders to suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). This is Motion For Conditional Discharge.  Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.

Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush 134 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974).

The defendant must pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years.

The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

     CONCLUSION

         Narcotics and Drug related offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on Narcotics.  Drug law and other defenses are explained in greater details in other articles on www.njlaws.com.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

Copyright 2018 Vercammen Law

26:2L-4. Program; establishment; administration; rules and regulations; patients; certification; confidentiality of names and records

26:2L-4.  Program;  establishment;  administration;  rules and regulations;  patients;  certification;  confidentiality of names and records

    a.  There is hereby established in the State Department of Health, the controlled dangerous substances therapeutic research program.  The program shall be limited to therapeutic research programs presently conducted by the Bureau of Drugs in the Food and Drug Administration of the U.S. Department of Health and Human Services or its successor and shall be administered by the commissioner who shall promulgate rules and regulations necessary for the administration of this act, including but not limited to rules and regulations which may be necessary to require patients desiring certification pursuant to section 5 of this act to release their medical records for the purposes of certification and follow-up reports.  In making such promulgations, the commissioner shall take into consideration all Federal controlled dangerous substances laws and rules adopted pursuant to such laws.

    b.  The program shall be limited to patients who are certified to the board,  established by section 5 of this act, by a practitioner as being involved in a  life-threatening or sense-threatening situation and who are not responding to  drugs or where the drugs administered have proven to be effective but where the  patient has incurred severe side effects.

    c.  The names and medical records of individual patients who have either requested certification or have been certified pursuant to section 5 of this act shall not be released in any form which identifies the individual, except that the names and records of such individuals shall be made available upon request for use in the enforcement of laws regarding controlled dangerous substances (P.L.1970, c. 226;  C. 24:21-1 et seq.).

    L.1981, c. 72, s. 4, eff. March 23, 1981.

26:2L-3. Definitions

26:2L-3.  Definitions

    As used in this act:

    a.  "Board"  means the Therapeutic Research Qualification Review Board established in section 5 of this act.

    b.  "Commissioner"  means the State Commissioner of Health.

    c.  "Schedule I controlled dangerous substance"  means a controlled dangerous substance having a high addiction liability;  no accepted medical use  in the United States;  and listed in New Jersey Administrative Code 8:65-10.1.

    d.  "Drugs"  means drugs as defined in section 2 of P.L.1970, c. 226 (C. 24:21-2).

    e.  "Practitioner"  means a physician licensed to prescribe and administer  drugs which are subject to the  "New Jersey Controlled Dangerous Substances  Act"  (P.L.1970, c. 226).

    f.  "Program"  means the controlled dangerous substances therapeutic research program established in this act.

    L.1981, c. 72, s. 3, eff. March 23, 1981.

26:2L-2. Legislative findings and declarations

26:2L-2.  Legislative findings and declarations

    The Legislature finds and declares that recent medical research has shown that the therapeutic use of certain Schedule I controlled dangerous substances may alleviate the nausea and ill-effects of certain medical treatment, such as cancer chemotherapy, and, additionally, may alleviate the ill-effects of certain diseases, such as glaucoma.  The Legislature further recognizes that there is a need for further therapeutic research with regard to the use of such  controlled dangerous substances for these purposes under strictly controlled  circumstances.  It is for this purpose that the  "Controlled Dangerous  Substances Therapeutic Research Act"  is hereby enacted.

26:2L-1. Short title "Controlled Dangerous Substances Therapeutic Research Act."

26:2L-1.  Short title

    This act shall be known and may be cited as the  "Controlled Dangerous Substances Therapeutic Research Act."

    L.1981, c. 72, s. 1, eff. March 23, 1981.

24 :6I-6  Applicability of N.J.S.2C:35-18.    6. a. The provisions of N.J.S.2C:35-18 shall apply to any qualifying patient, primary caregiver, alternative treatment center, physician, or any other person acting in accordance with the provisions of P.L.2009, c.307 (C.24:6I-1 et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.).

   b.   A qualifying patient, primary caregiver, alternative treatment center, physician, or any other person acting in accordance with the provisions of P.L.2009, c.307 (C.24:6I-1 et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.) shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of marijuana as authorized under P.L.2009, c.307 (C.24:6I-1 et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.).

   c.   Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

   d.   The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a qualifying patient or primary caregiver has in his possession a registry identification card and no more than the maximum amount of usable marijuana that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I-10).

   e.   No person shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for simply being in the presence or vicinity of the medical use of marijuana as authorized under P.L.2009, c.307 (C.24:6I-1 et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.).

   f.   No custodial parent, guardian, or person who has legal custody of a qualifying patient who is a minor shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for assisting the minor in the medical use of marijuana as authorized under P.L.2009, c.307 (C.24:6I-1et al.) or P.L.2015, c.158 (C.18A:40-12.22 et al.).

   L.2009, c.307, s.6; amended 2015, c.158, s.4.

24 :6I-5 Certification authorizing medical use of marijuana.

24 :6I-5  Certification authorizing medical use of marijuana.  5. a. Medical use of marijuana by a qualifying patient may be authorized pursuant to a certification which meets the requirements of this act.  In order to provide such certification, a physician shall be licensed and in good standing to practice in the State.

   The certification shall attest that the above criteria have been met.

   b.    The provisions of subsection a. of this section shall not apply to a qualifying patient who is a minor unless the custodial parent, guardian, or person who has legal custody of the minor receives from the physician an explanation of the potential risks and benefits of the medical use of marijuana and consents in writing that the minor patient has that person's permission for the medical use of marijuana and that the person will control the acquisition and possession of the medical marijuana and any related paraphernalia from the alternative treatment center.  The physician shall document the explanation of the potential risks and benefits in the minor patient's medical record.

   L.2009, c.307, s.5; amended 2013, c.160, s.1.

24 :6I-4 Registry of qualifying patients, primary caregivers.

24 :6I-4  Registry of qualifying patients, primary caregivers.   4. a. The department shall establish a registry of qualifying patients and their primary caregivers, and shall issue a registry identification card, which shall be valid for two years, to a qualifying patient and primary caregiver, if applicable, who submits the following, in accordance with regulations adopted by the department:

   (1)   a certification that meets the requirements of section 5 of this act;

   (2)   an application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

   (3)   the name, address and date of birth of the patient and caregiver, as applicable; and

   (4)   the name, address and telephone number of the patient's physician.

   b.   Before issuing a registry identification card, the department shall verify the information contained in the application or renewal form submitted pursuant to this section.  In the case of a primary caregiver, the department shall provisionally approve an application pending the results of a criminal history record background check, if the caregiver otherwise meets the requirements of this act.  The department shall approve or deny an application or renewal within 30 days of receipt of the completed application or renewal, and shall issue a registry identification card within five days of approving the application or renewal.  The department may deny an application or renewal only if the applicant fails to provide the information required pursuant to this section, or if the department determines that the information was incorrect or falsified or does not meet the requirements of this act.  Denial of an application shall be a final agency decision, subject to review by the Superior Court, Appellate Division.

   c. (1) The commissioner shall require each applicant seeking to serve as a primary caregiver to undergo a criminal history record background check.  The commissioner is authorized to exchange fingerprint data with and receive criminal history record background information from the Division of State Police and the Federal Bureau of Investigation consistent with the provisions of applicable federal and State laws, rules, and regulations.  The Division of State Police shall forward criminal history record background information to the commissioner in a timely manner when requested pursuant to the provisions of this section.

   An applicant seeking to serve as a primary caregiver shall submit to being fingerprinted in accordance with applicable State and federal laws, rules, and regulations.  No check of criminal history record background information shall be performed pursuant to this section unless the applicant has furnished his written consent to that check.  An applicant who refuses to consent to, or cooperate in, the securing of a check of criminal history record background information shall not be considered for inclusion in the registry as a primary caregiver or issuance of an identification card.  An applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.

   (2)   The commissioner shall not approve an applicant seeking to serve as a primary caregiver if the criminal history record background information of the applicant reveals a disqualifying conviction.  For the purposes of this section, a disqualifying conviction shall mean a conviction of a crime involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10, or any similar law of the United States or of any other state.

   (3)   Upon receipt of the criminal history record background information from the Division of State Police and the Federal Bureau of Investigation, the commissioner shall provide written notification to the applicant of his qualification or disqualification for serving as a primary caregiver.

   If the applicant is disqualified because of a disqualifying conviction pursuant to the provisions of this section, the conviction that constitutes the basis for the disqualification shall be identified in the written notice.

   (4)   The Division of State Police shall promptly notify the commissioner in the event that an individual who was the subject of a criminal history record background check conducted pursuant to this section is convicted of a crime or offense in this State after the date the background check was performed.  Upon receipt of that notification, the commissioner shall make a determination regarding the continued eligibility of the applicant to serve as a primary caregiver.

   (5)   Notwithstanding the provisions of subsection b. of this section to the contrary, no applicant shall be disqualified from serving as a registered primary caregiver on the basis of any conviction disclosed by a criminal history record background check conducted pursuant to this section if the individual has affirmatively demonstrated to the commissioner clear and convincing evidence of rehabilitation.  In determining whether clear and convincing evidence of rehabilitation has been demonstrated, the following factors shall be considered:

   (a)   the nature and responsibility of the position which the convicted individual would hold, has held, or currently holds;

   (b)   the nature and seriousness of the crime or offense;

   (c)   the circumstances under which the crime or offense occurred;

   (d)   the date of the crime or offense;

   (e)   the age of the individual when the crime or offense was committed;

   (f)   whether the crime or offense was an isolated or repeated incident;

   (g)   any social conditions which may have contributed to the commission of the crime or offense; and

   (h)   any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.

   d.   A registry identification card shall contain the following information:

   (1)   the name, address and date of birth of the patient and primary caregiver, if applicable;

   (2)   the expiration date of the registry identification card;

   (3)   photo identification of the cardholder; and

   (4)   such other information that the department may specify by regulation.

   e. (1) A patient who has been issued a registry identification card shall notify the department of any change in the patient's name, address, or physician or change in status of the patient's debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

   (2)   A primary caregiver who has been issued a registry identification card shall notify the department of any change in the caregiver's name or address within 10 days of such change, or the registry identification card shall be deemed null and void.

   f.   The department shall maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list, and information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), and shall not be disclosed except to:

   (1)   authorized employees of the department and the Division of Consumer Affairs in the Department of Law and Public Safety as necessary to perform official duties of the department and the division, as applicable; and

   (2)   authorized employees of State or local law enforcement agencies, only as necessary to verify that a person who is engaged in the suspected or alleged medical use of marijuana is lawfully in possession of a registry identification card.

   g.   Applying for or receiving a registry card does not constitute a waiver of the qualifying patient's patient-physician privilege.

   L.2009, c.307, s.4.