ASSEMBLY, No. 4151

STATE OF NEW JERSEY

215th LEGISLATURE

 

INTRODUCED JUNE 6, 2013

 


 

Sponsored by:

Assemblyman  BRIAN E. RUMPF

District 9 (Atlantic, Burlington and Ocean)

Assemblywoman  DIANNE C. GOVE

District 9 (Atlantic, Burlington and Ocean)

Assemblyman  BOB ANDRZEJCZAK

District 1 (Atlantic, Cape May and Cumberland)

Assemblyman  NELSON T. ALBANO

District 1 (Atlantic, Cape May and Cumberland)

Assemblyman  SCOTT T. RUMANA

District 40 (Bergen, Essex, Morris and Passaic)

 

Co-Sponsored by:

Assemblymen McGuckin, Wolfe, Assemblywomen Angelini, McHose, Assemblymen Space and Dancer

 

 

 

 

SYNOPSIS

     Allows certain drug dealing offenses to be graded by "units," rather than weight, of controlled dangerous substances.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning controlled dangerous substances, amending N.J.S.2C:35-2 and N.J.S.2C:35-5 and supplementing chapter 35 of Title 2C of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    

     1. N.J.S.2C:35-2 is amended to read as follows:

     2C:35-2.  As used in this chapter:

     "Adulterants or dilutants" means substances which are mixed or combined with a controlled dangerous substance and any medium which is used to carry a controlled dangerous substance, if the controlled dangerous substance is not readily removable from the medium.  The terms shall include, but not  be limited to blotter paper, stamps or cigarettes.

     "Administer" means the direct application of a controlled dangerous substance or controlled substance analog, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:  (1) a practitioner (or, in his presence, by his lawfully authorized agent), or (2) the patient or research subject at the lawful direction and in the presence of the practitioner.

     "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser but does not include a common or contract carrier, public warehouseman, or employee thereof.

     "Controlled dangerous substance" means a drug, substance, or immediate precursor in Schedules I through V, any substance the distribution of which is specifically prohibited in N.J.S.2C:35-3, in section 3 of P.L.1997, c.194 (C.2C:35-5.2), in section 5 of P.L.1997, c.194 (C.2C:35-5.3), in section 2 of P.L.2011, c.120 (C.2C:35-5.3a), or in section 2 of P.L.2013, c.35 (C.2C:35-5.3b), and any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance in the human body. When any statute refers to controlled dangerous substances, or to a specific controlled dangerous substance, it shall also be deemed to refer to any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance or the specific controlled dangerous substance, and to any substance that is an immediate precursor of a controlled dangerous substance or the specific controlled dangerous substance.  The term shall not include distilled spirits, wine, malt beverages, as those terms are defined or used in R.S.33:1-1 et seq., or tobacco and tobacco products.  The term, wherever it appears in any law or administrative regulation of this State, shall include controlled substance analogs.

     "Controlled substance analog" means a substance that has a chemical structure substantially similar to that of a controlled dangerous substance and that was specifically designed to produce an effect substantially similar to that of a controlled dangerous substance.  The term shall not include a substance manufactured or distributed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of section 505 of the "Federal Food, Drug and Cosmetic Act," 52 Stat. 1052 (21 U.S.C. s.355).

     "Counterfeit substance" means a controlled dangerous substance or controlled substance analog which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed the substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.

     "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance or controlled substance analog, whether or not there is an agency relationship.

     "Dispense" means to deliver a controlled dangerous substance or controlled substance analog to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery. "Dispenser" means a practitioner who dispenses.

     "Distribute" means to deliver other than by administering or dispensing a controlled dangerous substance or controlled substance analog.  "Distributor" means a person who distributes.

     "Drugs" means (a) substances recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (c) substances (other than food) intended to affect the structure or any function of the body of man or other animals; and (d) substances intended for use as a component of any article specified in subsections (a), (b), and (c) of this section; but does not include devices or their components, parts, or accessories.

     "Drug or alcohol dependent person" means a person who as a result of using a controlled dangerous substance or controlled substance analog or alcohol has been in a state of psychic or physical dependence, or both, arising from the use of that controlled dangerous substance or controlled substance analog or alcohol on a continuous or repetitive basis. Drug or alcohol dependence is characterized by behavioral and other responses, including but not limited to a strong compulsion to take the substance on a recurring basis in order to experience its psychic effects, or to avoid the discomfort of its absence.

     "Hashish" means the resin extracted from any part of the plant Genus Cannabis L. and any compound, manufacture, salt, derivative, mixture, or preparation of such resin.

     "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled dangerous substance or controlled substance analog, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled dangerous substance or controlled substance analog by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled dangerous substance:  (1) by a practitioner as an incident to his administering or dispensing of a controlled dangerous substance or controlled substance analog in the course of his professional practice, or (2) by a practitioner (or under his supervision) for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.

     "Marijuana" means all parts of the plant Genus Cannabis L., whether growing or not; the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds, except those containing resin extracted from the plant; but shall not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

     "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

     (a)   Opium, coca leaves, and opiates;

     (b)   A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates;

     (c)   A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in subsections (a) and (b), except that the words "narcotic drug" as used in this act shall not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecogine.

     "Opiate" means any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability.  It does not include, unless specifically designated as controlled pursuant to the provisions of section 3 of P.L.1970, c.226 (C.24:21-3), the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan).  It does include its racemic and levorotatory forms.

     "Opium poppy" means the plant of the species Papaver somniferum L., except the seeds thereof.

     "Person" means any corporation, association, partnership, trust, other institution or entity, or one or more individuals.

     "Plant" means an organism having leaves and a readily observable root formation, including, but not limited to, a cutting having roots, a rootball or root hairs.

     "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.

     "Practitioner" means a physician, dentist, veterinarian, scientific investigator, laboratory, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled dangerous substance or controlled substance analog in the course of professional practice or research in this State.

     (a)   "Physician" means a physician authorized by law to practice medicine in this or any other state and any other person authorized by law to treat sick and injured human beings in this or any other state.

     (b)   "Veterinarian" means a veterinarian authorized by law to practice veterinary medicine in this State.

     (c)   "Dentist" means a dentist authorized by law to practice dentistry in this State.

     (d)   "Hospital" means any federal institution, or any institution for the care and treatment of the sick and injured, operated or approved by the appropriate State department as proper to be entrusted with the custody and professional use of controlled dangerous substances or controlled substance analogs.

     (e)   "Laboratory" means a laboratory to be entrusted with the custody of narcotic drugs and the use of controlled dangerous substances or controlled substance analogs for scientific, experimental, and medical purposes and for purposes of instruction approved by the Department of Health.

     "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled dangerous substance or controlled substance analog.

     "Immediate precursor" means a substance which the Division of Consumer Affairs in the Department of Law and Public Safety has found to be and by regulation designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled dangerous substance or controlled substance analog, the control of which is necessary to prevent, curtail, or limit such manufacture.

     "Residential treatment facility" means any facility licensed and approved by the Department of Human Services and which is approved by any county probation department for the inpatient treatment and rehabilitation of drug or alcohol dependent persons.

     "Schedules I, II, III, IV, and V" are the schedules set forth in sections 5 through 8 of P.L.1970, c.226 (C.24:21-5 through 24:21-8) and in section 4 of P.L.1971, c.3 (C.24:21-8.1) and as modified by any regulations issued by the Director of the Division of Consumer Affairs in the Department of Law and Public Safety pursuant to the director's authority as provided in section 3 of P.L.1970, c.226 (C.24:21-3).

     "State" means the State of New Jersey.

     "Ultimate user" means a person who lawfully possesses a controlled dangerous substance or controlled substance analog for his own use or for the use of a member of his household or for administration to an animal owned by him or by a member of his household.

     "Prescription legend drug" means any drug which under federal or State law requires dispensing by prescription or order of a licensed physician, veterinarian, or dentist and is required to bear the statement "Rx only" or similar wording indicating that such drug may be sold or dispensed only upon the prescription of a licensed medical practitioner and is not a controlled dangerous substance or stramonium preparation.

     "Stramonium preparation" means a substance prepared from any part of the stramonium plant in the form of a powder, pipe mixture, cigarette, or any other form with or without other ingredients.

     "Stramonium plant" means the plant Datura Stramonium Linne, including Datura Tatula Linne.

     "Unit" means either the smallest discrete pill, tablet, capsule, vial, packet, fold or other unit of distribution or packaging of the controlled dangerous substance, or the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, whichever method of measurement is less.

(cf: P.L.2013, c.35, s.1)

 

     2.  (New section) Degree of offense based upon quantity of substance; weight and units; charging.

      The number of units or plants of a substance manufactured, distributed, dispensed or possessed or controlled with intent to manufacture, distribute or dispense shall not be used to determine whether an offense has been committed or the degree of the offense unless the indictment so provides.  If the amount of a controlled dangerous substance or controlled substance analog, by avoirdupois weight or, where applicable, metric weight, which is manufactured, distributed, dispensed or possessed or controlled with the intent to manufacture, distribute or dispense, is sufficient to establish guilt of a crime or falls within one degree of a crime, but the number of units or plants of the substance would not be sufficient to establish guilt or falls within a different degree of crime, the actor shall be guilty of the crime or the greater degree of crime.

 

     3.  N.J.S.2C:35-5 is amended to read as follows:

     2C:35-5.  Manufacturing, Distributing or Dispensing.  a.  Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:

     (1)  To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

     (2)  To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

     b.    Any person who violates subsection a. with respect to:

     (1) (a) Heroin, or its analog, in a quantity of one ounce or more including any adulterants or dilutants; or

     (b) coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine, or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants; or

     (c)  500 or more units of any of the substances referred to in subparagraphs (a) or (b) is guilty of a crime of the first degree.

     The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court.  The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

     (2)  [A] (a)  Heroin or its analog, in a quantity of one-quarter ounce or more, but less than one ounce including any adulterants or dilutants; or

     (b)  any other substance referred to in subparagraph (b) of  paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants; or

     (c)  100 or more units but fewer than 500 units of any of the substances referred to in subparagraphs (a) or (b) of paragraph (1) of this subsection,   is guilty of a crime of the second degree;

     (3)  [A] (a)  Heroin or its analog, in a quantity of less than one quarter ounce including any adulterants or dilutants; or

     (b)  any other substance referred to in subparagraph (b) of paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants; or

     (c)  fewer than 100 units of any of the substances referred to in subparagraphs (a) or (b) of paragraph (1) of this subsection, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

     (4)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;

     (5)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

     (6)  Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more, or 500 or more units, including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more, or 500 or more units, including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

     (7)  Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams, or 100 or more units but fewer than 500 units,  including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams, or 100 or more units but fewer than 500 units,  including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;

     (8)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more, or 500 or more units,  including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

     (9)  (a)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces, or 100 or more units but fewer than 500 units, including any adulterants or dilutants is guilty of a crime of the second degree;

     (b)  Methamphetamine, or its analog, or phenyl-2-propanone  (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

     (10)  (a)  Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

     (b)  Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;

     (11)  Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;

     (12)  Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;

     (13)  Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

     (14)  Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.

     c.    Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact.  Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.

(cf: P.L.2000, c.136, s.1).


     4.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would establish new classification schemes for certain controlled dangerous substances.

     Currently, the seriousness of a drug distribution offense is measured by reference to the amount, or weight, of controlled dangerous substances involved. However, some controlled dangerous substances, such as LSD and methamphetamine, are not sold by weight and are difficult to measure by weight.  This bill would give prosecutors the option to grade the seriousness of a drug distribution offense by reference to the number of units involved, rather than the weight of the drugs.

     Under this bill, a unit would be defined as either the smallest discrete pill, tablet, capsule, vial, packet, fold or other unit of distribution or packaging of the controlled dangerous substance, or the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, whichever method of measurement is less.

     This new classification scheme is intended to more accurately grade the crime of distributing particular substances such as LSD and methamphetamine, and also to more accurately grade such crimes as the packaging of illicit substances for street level distribution.

     The new scheme is intended to give prosecutors an additional tool to use in charging those involved in drug trafficking.  In many cases, it would have the effect of granting prosecutors the option to charge a defendant with a higher level offense than would otherwise be possible under current law.

     The charge by "units" would apply only to persons who distribute or possess illicit drugs with the intent to distribute.  It would not be used to determine the seriousness of "simple possession" drug offenses.

     The bill would establish a new classification scheme for the crime of distribution of heroin to make the weights comparable, in terms of amounts commonly consumed, to the weights required for cocaine. Under current law, the distribution of heroin and cocaine are punishable as if they were the same substance. However, heroin provides more pharmacological effect from a given weight than does cocaine.  Thus, in effect, the current statutes allow those who distribute heroin to be treated more leniently than those who distribute cocaine. 

     Consequently, the new classification scheme established under the bill for the crime of distribution of heroin and cocaine would be as follows:

     A person would be guilty of a crime of the first degree for distributing or possessing with intent to distribute the following:

·       one ounce or more of heroin (instead of the current five ounces or more), or

·       five ounces or more of cocaine (same as current law), or

·       500 or more units of either cocaine or heroin.

     A person would be guilty of a crime of the second degree for distributing or possessing with intent to distribute the following:

·       one-quarter ounce or more but less than one ounce of heroin (instead of the current one-half ounce or more but less than five ounces ), or

·       one-half ounce or more but less than five ounces of cocaine (same as current law), or

·       100 or more units but fewer than 500 units of cocaine or heroin.

     A person would be guilty of a crime of the third degree for distributing or possessing with intent to distribute the following:

·       less than one quarter ounce (instead of the current less than one-half ounce) of heroin, or

·       less than one-half ounce of cocaine (same as current law), or

·       fewer than 100 units of cocaine or heroin.

     The mandatory minimum terms of imprisonment under the statute and the mandatory minimum fines remain unchanged.

     The bill would also add the “units” measurement scheme for the following:

     (1) the first degree crimes of distributing or possessing with intent to distribute: (a) lysergic acid diethylamide (LSD), or its analog, in a quantity of 100 milligrams or more or 500 or more units; or phencyclidine, or its analog, in a quantity of 10 grams or more or 500 or more units; or (b) Methamphetamine, or its analog, or P2P, in a quantity of five ounces or more or 500 or more units.

     (2) the second degree crimes of distributing or possessing with intent to distribute: (a) lysergic acid diethylamide (LSD), or its analog, in a quantity of less than 100 milligrams or  100 or more units but fewer than 500 units or phencyclidine, or its analog, in a quantity of less than 10 grams or  100 or more units but fewer than 500 units; or (b) Methamphetamine, or P2P, in a quantity of one-half ounce or more but less than five ounces or 100 or more units but fewer than 500 units. (The third degree crime concerning a quantity of less than one-half ounce remains the same.)

     The gradation scheme for distributing or possessing with intent to distribute marijuana and hashish remain the same as does the gradation scheme for controlled dangerous substances classified in Schedules I, II, III, IV, or V.