BY JAY SMOKER
And is a legal Medical Marijuana Patient in California who travels between Toms River, New Jersey and Los Angeles, California has filed a court challenge in Middletown Township, New Jersey Municipal Court (see below) seeking to dismiss marijuana possession charges on the basis on the unconstitutionality and conflict of New Jersey’s Marijuana laws.
Hafner demands that New Jersey recognize his status as a legal medical marijuana patient as per California law under the full faith and credit clause of the United States Constitution.
If the motion to dismiss is not accepted by the municipal court, the challenge will move forward on appeal and may result in case law that may overturn New Jersey’s Marijuana laws.
TO: JUDGE ROBIN T. WERNIK AND PROSECUTOR JAMES N. BUTLER, ESQ. C/O
MIDDLETOWN MUNICIPAL COURT
SENT VIA FAX TO: 732-615-2122
RE: STATE VS HAFNER SC 016218, 016219 (2C:35-10(a)(4), 2C:36-2)
MOTION TO DISMISS / MEMORANDUM OF LAW
October 14, 2012
DEAR JUDGE WERNIK,
Please accept this letter in lieu of a more formal brief in support of
a motion to dismiss in the interest of justice.
Defendant was charged with Possession of Marijuana under 50 grams
N.J.S.A. 2C:35-10(a)(4) and Possession of Drug Paraphernalia N.J.S.A.
2C:36-2. Defendant has plead not guilty and the charges are pending in
the Middletown Township Municipal Court.
N.J.S.A. 24:6I-2 Findings, declarations relative to the medical use of
marijuana states, “(a)Modern medical research has discovered a
beneficial use for marijuana in treating or alleviating the pain or
other symptoms associated with certain debilitating medical
conditions…”, “(c)…the laws of…California…permit the use of
marijuana for medical purposes…New Jersey joins this effort for the
health and welfare of it’s citizens” and “(e) Compassion dictates that
a distinction be made between medical and non-medical uses of
marijuana. Hence, the purpose of this act is to protect from arrest,
prosecution, property forfeiture and criminal and other penalties
those patients who use marijuana to alleviate suffering from
debilitating medical conditions.”
Based on N.J.S.A. 24:6I-2(c) and the Full Faith and Credit Clause of
the United States Constitution – Article IV, Section 1, New Jersey
must recognize the status of medical marijuana patients, authorized
under the equivalent statutes of other U.S. states, such as California
Health and Safety Code, 11362.5 – the [California] Compassionate Use
Act of 1996 (Proposition 215) as exempt from criminal liability under
N.J.S.A. 2C:35-10(a)(4) and N.J.S.A. 2C:36-2.
As New Jersey has opted to restrict enrollment in it’s medical
marijuana program to in-state residents, failing to offer reciprocity
for out-of-state medical marijuana authorizations would put New
marijuana laws in violation of the Equal Protection and Due Process
Clauses of the United States Constitution – Amendment XIV, Section 1
and the Due Process Clause found in Amendment V by creating a
different set of marijuana laws for individuals who are citizens of
other states and and violating the right of said citizens to domestic
travel between the states found in United States v. Guest, 383 U.S.
Defendant (a dual Citizen of New Jersey and California) is authorized
as a legal medical marijuana patient as per licensed California
physician, Dr. William S. Eidelman, M.D. (see attached letter on page
3) under California Health and Safety Code, 11362.5 – the [California]
Compassionate Use Act of 1996 (Proposition 215).
The New Jersey Constitution, Article I, Rights and Privileges (1)
guarantees the right to “pursue and obtain safety”. N.J.S.A. 2C:35-10,
N.J.S.A. 2C:36-2 and N.J.S.A. 24:6I are unconstitutional because the
statues fail to offer sufficient exemptions from criminal liability
for medical use of marijuana and require patients to break the law to
obtain medical marijuana. The currently offered medical exemptions
under N.J.S.A. 24:6I are overly limited and not possible to comply
with as no New Jersey Patient Registry ID Cards have been issued by
the Department of Health and Senior Services and the legal
distribution system for medical marijuana outlined in N.J.S.A. 24:6I
does not exist, three years after the passage of the law in January
In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court ruled
unconstitutional a Texas state law that effectively banned abortions,
only authorizing such procedures in limited situations where they were
permitted to be conducted to save the life of the mother. The court
found that the U.S. Constitution’s First, Fourth, Ninth and Fourteenth
Amendments protect an individual’s “zone of privacy” against state
laws and because of the physical, psychological and economic stresses
a pregnant woman may face, the court overturned the statute. New
Jersey’s marijuana laws unconstitutionally intrude upon an
individual’s “zone of privacy” when taking into account the physical,
psychological and economic stresses that a seriously- ill patient who
can benefit from the usage of medical marijuana faces.
New Jersey’s marijuana laws themselves are in high conflict at this
time. The more recent Compassionate Use Medical Marijuana Act,
N.J.S.A. 24:6I describes marijuana as a medicine. The older criminal
marijuana law N.J.S.A. 2C:35-10 says marijuana is a Schedule One
substance as per N.J.S.A 24:21-5. By statutory definition under
N.J.S.A 26:2L-3(c) , a Schedule One substance has no medical use and a
high addiction liability – neither of which fit marijuana as the newer
N.J.S.A 24:6I recognizes marijuana as a substance with medical value
that can be safely utilized in medical treatment. This inconsistency
invalidates the older criminal possession law because it’s enforcement
would violate the Equal Protection and Due Process Clauses of the
United States Constitution – Amendment XIV, Section 1 and the Due
Process Clause found in Amendment V by creating two, irreconcilably
different definitions of marijuana under state law by saying that some
can legally possess, grow and sell marijuana because it’s a medicine
while at the same time criminalizing others who possess marijuana on
the grounds it has no medical value, even though the state has
admitted in N.J.S.A. 24:6I that marijuana is indeed a medicine. If the
state wanted to avoid this conflict, they could have rescheduled
marijuana to at least Schedule Two or lower (which recognizes a
substance as having medical use) once the Compassionate Use Medical
Marijuana Act N.J.S.A. 24:6I was passed. The state failed to
reschedule marijuana and the criminal marijuana law under N.J.S.A.
2C:35-10 is now null and void because it is pre-empted by the newer
Compassionate Use Medical Marijuana Act N.J.S.A. 24:6I, which takes
precedence over the older criminal law.
The New Jersey State Supreme Court stated in a 1990 opinion that the
duty of a prosecutor is to seek individual justice in individual
cases, not to simply seek convictions. While marijuana possession
charges in municipal court may not be plea bargained – while virtually
any other kind of charge can, the prosecutor remains free to dismiss
charges all together. The prosecutor should seek individual justice
based on the unique facts and circumstances surrounding a case, not
simply try to convict a defendant. When a defendant is being charged
with an alleged marijuana possession offense and is known to be a
legal medical marijuana patient for a serious, debilitating medical
condition, the prosecution should agree to dismiss the charges.
Based on the foregoing, the complaint against defendant must, in the
interest of justice, be dismissed with prejudice.
Press Release From The New Jersey Marijuana Party