Interview with Randolph Wolf: The Status of Medical Marijuana In New Jersey

by Adam Williams, legal writer for Law & Policy Institute Guide
October 28 2012

Randolph H. Wolf is a criminal defense attorney practicing in New Jersey. More about his practice can be found at RandolphWolf.com
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In 2010, New Jersey passed a law to regulate the use of medical marijuana for seriously ill patients. During the term of republican governor Chris Christie, progress on opening medical marijuana dispensaries has stalled. What legal tactics have prevented medical marijuana dispensaries from opening in NJ?

Since 2010, only one out of six marijuana dispensaries, the Greenleaf Compassion Center in Montclair, has been licensed to grow marijuana. Many have criticized Christie and his administration for delaying – and perhaps even trying to prevent – medical marijuana from becoming available. Christie first demanded a detailed review of the program and has been accused of essentially rewriting the medical marijuana law through the regulatory process with the New Jersey Department of Health to provide more specific regulation. More recently, the dispensaries themselves have been confronting a variety of strict regulations and interminable background checks for employees. Christie cites the fact that he does not want New Jersey’s program to be easily abused and exploited as has happened in some other states, most notably in California, for the delays.Whatever the excuse, the consensus seems to be that medical marijuana should be available to those who need it – fast.

California medical marijuana dispensaries have recently been subjected to federal DEA raids despite President Obama's 2008 campaign promise to end federal raids and respect state's laws in this regard. Should medical marijuana growers and dispensary owners be concerned about the federal government's attempt to undermine state's medical marijuana laws? Will growers and dispensaries be at risk of prosecution in New Jersey under federal law?

The possession or sale of marijuana violates federal laws, even though 17 states and the District of Columbia have made marijuana legal for some medical purposes. So long as the dispensaries abide by New Jersey’s medical marijuana regulations, however, dispensaries do not need to be concerned of prosecution under federal law. In fact, the Obama administration has repeatedly indicated that it will not prosecute dispensaries that abide by their state’s medical marijuana regulations. In those states where federal agents have raided dispensaries, the dispensaries have not abided by their state’s medical marijuana regulations. For example, in California federal agents discovered that dispensaries were improperly selling medical marijuana to people who were not sick. In Montana, federal authorities conducted raids on medical marijuana dispensaries because there was probable cause they were involved in illegal, large-scale trafficking. In New Mexico, which has smaller scale, well-regulated, state-licensed dispensaries, there’s been no interference from the federal government. Unless a dispensary is raking in millions of dollars or engaged in suspicious activity, the facility will not be of interest to the federal government. Thus, so long as New Jersey’s program operation is kept small and controlled, it is not likely to warrant any action by federal law enforcement.

Are there limits to quantities and when and where medical marijuana can be used, legally? What should patients with medical marijuana cards know about their rights to medical marijuana?

Randolph Wolf: New Jersey’s medical marijuana law protects patients who use marijuana for to alleviate suffering from a debilitating medical condition from arrest, prosecution, and other criminal penalties. It is imperative, however, that patients are aware of and comply with the numerous restrictions that the law places on the consumption of medical marijuana. Otherwise, they will be subject to criminal penalties. Under New Jersey’s medical marijuana law, patients are prohibited from smoking medical marijuana in the following places: on school buses or school grounds, on any form of public transportation, in private vehicles (if the vehicle is in operation), in correctional facilities, at public parks or beaches, at recreation centers, or in any other place where smoking is prohibited pursuant to the Smoke Free Air Act. Additionally, patients are prohibited from operating vehicles, aircrafts, railroad trains, or stationary heavy equipment vessels while under the influence of marijuana. In addition to these restrictions, the law limits the quantity of marijuana that a patient can possess. Under the act, patients are limited to the possession of two ounces of marijuana per month. Moreover, the law prohibits patients from cultivating their own cannabis.

This week, NJ opened its patient registry and will begin to allow patients to register for a medical marijuana card. Does this mean they will be exempt from prosecution for marijuana possession?

Randolph Wolf: So long as the patient complies with the above-mentioned restrictions, the holder of a valid medical marijuana card cannot be prosecuted for possessing marijuana. If an individual sells or gives their prescription away to someone else, however, they can be prosecuted for a third-degree crime, which carries up to five years in state prison.

What is preventing dispensaries from legally selling medical marijuana in NJ? Can patients with medical marijuana cards buy marijuana elsewhere? Can they use their cards in other states that allow medical marijuana to be sold?

Randolph Wolf: In order to be eligible for the New Jersey medicinal marijuana program, you must: (1) maintain a bona fide relationship with a New Jersey physician who has been registered and approved by the program; (2) be certified with a debilitating medical condition by the approved New Jersey physician; (3) be a New Jersey resident; and (4) hold a valid patient identification card issued by the New Jersey medicinal marijuana program. While Greenleaf has been growing marijuana plants in an undisclosed location since the spring, it cannot begin selling the drug until the health department mails identification cards to the 190 patients who have registered. Marijuana must be purchased legally through dispensaries. While some states will accept an identification card from another state, most do not. Patients who possess a medicinal marijuana patient card from another state may not use it in New Jersey to obtain medicinal marijuana.

Are you familiar with the ‘NJ Weedman” case? What would you do if you were defending Ed Forchion?

Randolph Wolf: Ed “Weedman” Forchion, a legal medical marijuana patient in California, was arrested in Mount Holly, New Jersey in 2010 and charged with possession with intent to distribute after being found with a pound of marijuana in his trunk. At the time of his arrest, although New Jersey had its medical marijuana program theoretically in place, no dispensaries had opened anywhere in the state. Prosecutors argued that a pound was an excessive amount of cannabis to have to personal use, even for medical reasons. Forchion, a cannabis activist, represented himself at trial. Despite being barred from doing so by the Judge and the possibility of being held in contempt of court, he presented the jury nullification defense to the jury. Forchion told the jury that he disagreed with the law on marijuana and explained to them that they were free to disregard those laws if they too disagreed. In the end, Forchion was acquitted of the drug distribution charge. A defense attorney who made statements similar to Forchion’s would likely be found in contempt of court and have a mistrial declared against his client. As a defense attorney, I would have instead focused on the state’s inability to prove that Forchion intended to distribute marijuana. I would have presented evidence to the jury of Forchion’s status as a registered medical marijuana patient as well as evidence that he relies on marijuana to control pain from his tumors. Based on this, I would urge the jury to conclude that the state failed to prove that Forchion intended to distribute his “medicine.”

Currently, penalties in New Jersey for possession of 50 grams (1.7 oz) or less of marijuana is a disorderly persons offense, and can be punishable by up to 6 months in jail and $1,000 fine. Possession of 50 grams (1.7 oz) or more is felony, punishable by 1.5 years in prison and a $25,000 fine. In your experience representing clients charged with marijuana possession, are New Jersey courts enforcing the law to the maximum extent possible, or are you seeing some degree of leniency?

Randolph Wolf: The penalties for possession of marijuana in New Jersey are harsh. In my experience, New Jersey courts are enforcing the law with some degree of leniency, especially for first time offenders.

Additionally, most individuals charged with possession of marijuana in New Jersey are eligible for alternative sentencing programs. Under those programs, the individual serves a term of probation (usually one to two years). After successfully completing probation, the charges are dismissed. For repeat offenders, however, these programs are not available and the individual may be subject to the maximum penalty, especially if they are not represented by counsel.