[Passed Both Houses]

 

ASSEMBLY, No. 2957

 

STATE OF NEW JERSEY

 

INTRODUCED MAY 12, 1997

 

 

By Assemblymen BLEE, AZZOLINA, Gibson, LeFevre, Geist, Cottrell, Kelly, Talarico, T. Smith, Asselta, Corodemus, Arnone, Malone, DeSopo, Assemblywoman Heck, Assemblymen Wolfe, Holzapfel, Assemblywoman Crecco, Assemblymen Zecker, Bateman, O'Toole, Bucco and Senator Matheussen

 

 

An Act concerning controlled dangerous substances and amending N.J.S.2C:35-2, N.J.S.2C:35-4 and N.J.S.2C:35-5.

 

    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. Definitions.

    As used in this chapter:

    "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. 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 such 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 evices or their components, parts or accessories.

    "Drug dependent person" means a person who is using a controlled dangerous substance or controlled substance analog and who is in a state of psychic or physical dependence, or both, arising from the use of that controlled dangerous substance or controlled substance analog on a continuous basis. Drug 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.

    ["Marihuana"] "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 such plant or its seeds, except those containing resin extracted from such plant; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil, or cake, or the sterilized seed of such 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 and

    (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 State 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 State Department of Health 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 approved by any county probation department for the inpatient treatment and rehabilitation of drug 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 Commissioner of Health pursuant to his 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.

(cf: P.L.1987, c.106, s.1)

 

    2. N.J.S.2C:35-4 is amended to read as follows:

    2C:35-4. Maintaining or Operating a Controlled Dangerous Substance Production Facility.

    Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), any person who knowingly maintains or operates any premises, place or facility used for the manufacture of methamphetamine, lysergic acid diethylamide, phencyclidine, marijuana in an amount greater than five pounds or ten plants or any substance [classified as a narcotic drug] listed in Schedule I or II, or the analog of any such substance, or any person who knowingly aids, promotes, finances or otherwise participates in the maintenance or operations of such premises, place or facility, is guilty of a crime of the first degree and shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment which 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, the court may also impose a fine not to exceed $500,000.00 or five times the street value of all controlled dangerous substances or controlled substance analogs at any time manufactured or stored at such premises, place or facility, whichever is greater.

(cf: P.L.1988, c.44, s.1)

 

    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) Heroin, or its analog, or 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, in a quantity of five ounces or more including any adulterants or dilutants 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 $300,000.00 may be imposed;

    (2) A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;

    (3) A substance referred to paragraph (1) of this subsection in a quantity 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 $50,000.00 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 $50,000.00 may be imposed;

    (6) Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in 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 $300,000.00 may be imposed;

    (7) Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams 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 [one ounce] five ounces or more including any adulterants or dilutants is guilty of a crime of the [second] 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 [less than one ounce] one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the [third] second degree [except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $50,000.00 may be imposed];

    (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 than notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $50,000.00 may be imposed;

    (10) (a) Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or more than 50 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 [and] 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 [and] or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants [and] 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 $15,000.00 may be imposed;

    (12) Marijuana in a quantity of less than one ounce including any adulterants [and] or dilutants, or hashish in a quantity of less than five grams including any adulterants [and] 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 $15,000.00 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 $15,000.00 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.1988, c.44, s.2)

 

    4. This act shall take effect immediately.

 

 

STATEMENT

 

    This bill would increase the penalties for manufacturing, distributing or dispensing large quantities of marijuana.

    The bill establishes gradations for marijuana based upon the number of plants possessed (regardless of weight). This gradation scheme, which is similar to the one presently used in federal law, allows law enforcement officials to seize young, growing marijuana plants before they are mature enough to produce large quantities of usable marijuana.

    The bill adds marijuana to the list of substances which may be used as the basis for a conviction of "maintaining or operating a controlled dangerous substance production facility" under the provisions of N.J.S.A.2C:35-4. Under the bill, a person who maintains or operates any premises for the manufacture of marijuana in an amount greater than five pounds or ten plants would be guilty of a violation of N.J.S.A.2C:35-4, a crime of the first degree. Normally, a crime of the first degree is punishable by a term of imprisonment of up to 10 to 20 years, a fine of up to $100,000, or both. However, a person found guilty of a violation of N.J.S.A.2C:35-4 must be sentenced by the court to a term of imprisonment which includes a mandatory minimum term of between one-third and one-half of the sentence imposed. The person also may be sentenced to pay a fine of up to $500,000 or five times the street value of all CDS at the facility, whichever is greater.

    The bill also upgrades the offenses of distribution and possession with intent to distribute methamphetamine ("speed") and marijuana. Currently, this offense is a crime of the second degree, regardless of the quantity involved. By contrast, currently the offenses of distribution and possession with intent to distribute large quantities of heroin and cocaine are both crimes of the first degree. The bill provides that dealers in large quantities of marijuana and methamphetamine would be guilty of first degree crimes as well.

    The bill also provides that P2P, an immediate precursor used in the manufacture of methamphetamine, would be included in the new gradation scheme.

    Specifically the bill provides as follows:

    (1) Distribution or possession with intent to distribute more than five ounces of methamphetamine would be a crime of the first degree. (Currently, committing this offense with any amount of methamphetamine greater than one ounce is a crime of the second degree.)

    (2) Distribution or possession with intent to distribute one-half ounce to five ounces of methamphetamine would be a crime of the second degree. (Currently, committing this offense with less than one ounce of methamphetamine is a crime of the third degree.)

    (3) Distribution or possession with intent to distribute 25 pounds of marijuana or 50 marijuana plants, or five pounds of hashish, would be a first degree crime. (Currently, committing this offense with any amount of marijuana greater than five pounds, or any amount of hashish greater than one pound, is a crime of the second degree.)

    This bill embodies Recommendations #1 and #2 of the Attorney General's "Report to the Governor on the Need to Update the Comprehensive Drug Reform Act of 1987," issued December 9, 1996.

 

 

                             

 

Increases penalties for distribution of large quantities of marijuana and methamphetamine; adds marijuana to "Controlled dangerous substance production facility" statute.