Legal Challenges to Pot Expungement

Possessing Pot in NJ

How much weed is legal to possess in New Jersey?

Unless a person possesses a medical permit and patronizes a licensed Alternate Treatment Center, no amount of Marijuana is legal to possess in the State of New Jersey. If a person is caught with anywhere from 0 to 50 grams of Marijuana, they are guilty of a disorderly person offense.

Zero? So you can be arrested for possession and not even have marijuana on you?

Yes. Evidence of possession includes resin on a smoking pipe, seeds or residue in a container, or any similar proof that the suspect had possession of or used marijuana. Many times, police will add a drug paraphernalia charge for any “specialized” tools related to drug use, even if that special tool is something legal to possess on its own, like cigarette paper or a digital scale.

Separate from the double possession charges (drug and paraphernalia) many marijuana arrests include the charge of possession of drugs in a motor vehicle. This separate offense is a traffic violation and will trigger an automatic license suspension. Suspension for two years is mandatory if convicted.

If you do get charged with possession, the record can be expunged after a few years, right?

It depends. Currently, expungement is only possible for minor (less than 50g) possession of marijuana. Anything more, even just one gram over, and it can never be expunged. If New Jersey chooses to decriminalize marijuana, clearing the records of thousands of New Jersey residents whose only criminal history involved smoking a blunt will be a brave new world of, completely uncharted legal territory.

Under current NJ law, many marijuana convictions are ineligible for expungement. Expungement can happen once, and it may only apply to one felony and three disorderly person judgments or four disorderly person judgments.

What could expungements look like after decriminalization?

If the state follows the Colorado model of decriminalization, it will open up all marijuana offenses besides distribution to expungement. This will place the burden on citizens to have their record cleared. Prior offenders will need to file a petition for expungement, just like they do now. The only difference would be the expanded range of expungeable offenses.

State Assemblywoman Annette Quijano’s proposal, currently under review by the Assembly Judiciary Committee, would present more radical changes to the expungement process. It would be more like San Francisco’s model, automatically expunging the records of simple possession and downgrading felony marijuana charges to a misdemeanor.

Any algorithm would likely miss some records, and there would need to be a manual process for these. But an automatic process would reduce the burden on citizens, especially those who can’t afford an expungement even if they became eligible.

Expungement Legislation is Pending in the State Assembly

Public discussions over Assemblywoman Quijano’s proposed bill A-3620 have exposed the challenges of an automatic expungement bill There was little argument over the intent of the bill. Both conservative and liberal lawmakers agree that, should marijuana be legalized, those arrested for simply possessing it before the laws changed should have their records cleared of criminal convictions. The hearing, with talks from community organizers and legal activists, revealed the administrative challenge of finding and expunging Marijuana-related convictions.

One major hurdle is actually finding the conviction records. There is no single charge for marijuana-related offenses. Possession of fewer than 50 grams is a common charge, but paraphernalia charges or other disorderly or criminal offenses are often tacked on by the arresting authority. Nor is their a single central registry of marijuana-related offenses as there are with DUI or Child Abuse. Records needed for normal expungements are spread across every municipality and state agency.

Besides the administrative challenge, there is the legal challenge of enabling expungements. Will those currently under arrest or prosecution have their charges dropped? Expungements  So if the marijuana charge is part of a broader case, will the whole case be expunged, or would the charge just stand?

Even if Assemblywoman Quijano’s bill passes with amendments to reflect legal and administrative challenges, it is impossible for the State Assembly to anticipate what unique circumstances such legislation might encounter. It will ultimately be the work of expungement lawyers, legal advocates, and the New Jersey Judiciary to create precedent governing how these expungements will proceed.

Lawyers on the cutting edge of New Jersey Criminal Law are already preparing for client’s legal needs following marijuana legalization. For questions about marijuana laws and criminal defense in the Garden State, contact the law office of Ken Aita.