The New Jersey Code of Criminal Justice defines “manufacture” in N.J.S. 2C:35-2. That definition, in typical legislative gibberish, is:
|“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.|
Eliminating superfluous verbiage, and in the context of marijuana, “manufacturing” means the propagation of a controlled dangerous substance. And in New Jersey, marijuana is, by definition, a “controlled dangerous substance.” Thus, if “growing” is “propagating,” then “growing” marijuana plants in New Jersey is, by definition, “manufacturing.”
The grading, or seriousness, of growing marijuana in New Jersey is determined by the number of plants being grown. Under N.J.S. 2C:35-5b(10)(a), growing fifty or more marijuana plants is a first degree crime. It carries a “normal” term of ten to twenty years imprisonment, and a fine of up to $300.000.00. Under N.J.S. 2C:35-5b(10)(b), growing ten or more marijuana plants, but less than fifty, is a second degree crime. It carries a “normal” term of five to ten years imprisonment, and a fine of up to $150.000.00. Where the number of plants is less than ten, the growing will be a third degree or a fourth degree crime, depending on whether the total weight of the plants, excluding mature stalks and fiber, equals or exceeds an ounce.
Most drug “manufacturing” offenses enable a defendant, at least in theory, to assert a “personal use” defense. This defense flows from that part of the definition of “manufacture” that provides that the term “does not include the preparation or compounding of a controlled dangerous substance or controlled substance analog by an individual for his own use.” What makes this defense unavailable for marijuana cases is that the Superior Court of New Jersey, Appellate Division, has construed “growing” to be “propagating.” And while “manufacture” contains a personal use exception for “preparation or compounding,” omitted from these exceptions is “propagating.” Thus multiple sclerosis patient John Ray Wilson, a medical marijuana user who grew his own, was convicted of second degree manufacturing with not a scintilla of proof that he was distributing, or even intending to distribute, the marijuana that he was growing. In fact, the State never charged Mr. Wilson with any distribution-related offense. The full opinion of the Appellate Division in State v. Wilson is elsewhere on this site.
As just indicated, Wilson was decided by the Appellate Division. He asked the Supreme Court of New Jersey to review that decision. The Supreme Court refused to do so. As matters thus stand, therefore, the door remains open for the Supreme Court of New Jersey to overrule the Wilson holding and declare that growing for personal use is not be be considered “manufacturing.” Until that happens, or until some other defense for growing marijuana is recognized, convictions for growing marijuana in New Jersey will remain insanely punitive and socially destructive.
Marijuana Lawyers in New Jersey™ have been representing persons charged with marijuana-related offenses for a combined total of over sixty-five years. They have obtained dismissals and not guilty verdicts from cases involving less than a gram, to those involving many pounds. They have obtained dismissals and not guilty verdicts for marijuana charges arising in cars, in prisons, and on the street. They defend marijuana charges in New Jersey with knowledge, skill, experience, and understanding. They are available to review your matter in a no-cost no-obligation conference. Call them!
Allan Marain |
Norman Epting, Jr.
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