Title 2C, Chapter 36 of the New Jersey statutes concern itself with drug paraphernalia. The particular statute most used for people facing paraphernalia charges is N.J.S. 2C:36-2. That statute reads:
|It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance, controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. Any person who violates this section is guilty of a disorderly persons offense.|
It is N.J.S. 2C:36-1 that actually attempts to specify how New Jersey defines drug paraphernalia. That statute reads:
|As used in this act, “drug paraphernalia” means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance , controlled substance analog or toxic chemical in violation of the provisions of chapter 35 of this title. It shall include, but not be limited to: a. kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled dangerous substance or from which a controlled dangerous substance can be derived; b. kits used or intended for use in manufacturing, compounding, converting, producing, processing, or preparing controlled dangerous substances or controlled substance analogs; c. isomerization devices used or intended for use in increasing the potency of any species of plant which is a controlled dangerous substance; d. testing equipment used or intended for use identifying, or in analyzing the strength, effectiveness or purity of controlled dangerous substances or controlled substance analogs; e. scales and balances used or intended for use in weighing or measuring controlled dangerous substances or controlled substance analogs; f. dilutants and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting controlled dangerous substances or controlled substance analogs; g. separation gins and sifters used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana; h. blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled dangerous substances or controlled substance analogs; i. capsules, balloons, envelopes and other containers used or intended for use in packaging small quantities of controlled dangerous substances or controlled substance analogs; j. containers and other objects used or intended for use in storing or concealing controlled dangerous substances , controlled substance analogs or toxic chemicals; k. objects used or intended for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, hashish oil, nitrous oxide or the fumes of a toxic chemical into the human body, such as (1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips, meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (6) miniature cocaine spoons, and cocaine vials; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; (15) chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and (16) tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical.
In determining whether or not an object is drug paraphernalia, the trier of fact, in addition to or as part of the proofs, may consider the following factors: a. statements by an owner or by anyone in control of the object concerning its use; b. the proximity of the object of illegally possessed controlled dangerous substances , controlled substance analogs or toxic chemicals; c. the existence of any residue of illegally possessed controlled dangerous substances , controlled substance analogs or toxic chemicals on the object; d. direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of this act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use as drug paraphernalia; e. instructions, oral or written, provided with the object concerning its use; f. descriptive materials accompanying the object which explain or depict its use; g. national or local advertising whose purpose the person knows or should know is to promote the sale of objects intended for use as drug paraphernalia; h. the manner in which the object is displayed for sale; i. the existence and scope of legitimate uses for the object in the community; and j. expert testimony concerning its use.
Some observations here are of especial note. Firstly, the vast majority of items listed in N.J.S. 2C:36-1 have completely “legitimate” non-drug-related uses, even in New Jersey. These would include, for example, blenders, bowls, containers, spoons, balloons, and envelopes. A propos this is a quotation attributed to Sigmund Freud: “Sometimes a cigar is just a cigar.”
The second observation is this: Even when an item unquestionably is drug paraphernalia, under N.J.S. 2C:36-2, its mere possession is not sufficient to make a person guilty under New Jersey law. In order for the accused individual to be found guilty, the State must establish that the possessor actually used or intended to use (or distribute) the paraphernalia for the prohibited purpose. This is very different, then, from the situation of an item such as marijuana itself, where the possessor in New Jersey is culpable for just possessing it.
So how is one to determine whether the “blenders, bowls, containers, spoons, balloons, and envelopes” that have unarguably legitimate uses are “paraphernalia,” or whether they are just blenders, bowls, containers, spoons, balloons, and envelopes? Or, for that matter, cigars. And how is the person who wants to open a smoke shop to know where the State draws the line? The Supreme Court of New Jersey grappled with this issue. Its answer, such as it is, is contained in its decision in the case called Town Tobacconist v. Kimmelman. We provide the full text of that case on this site.
Additional statutes in Chapter 36 prohibit other activities relating to drug paraphernalia:
||Distributing, dispensing, or possessing with intent to distribute or manufacture||Fourth degree Crime|
||Advertising to promote sale of objects intended for use as drug paraphernalia||Fourth degree crime|
||Delivering drug paraphernalia to someone under eighteen years of age||Third degree crime|
||Possession or distribution of hypodermic syringe or needle||Disorderly persons offense|
||Discarding hypodermic needle or syringe||Petty disorderly persons offense|
Persons charged of offenses defined in Chapter 36 are exposed to imprisonment, fines, other monetary assessments, and loss of New Jersey driving privileges. But a charge is not a conviction. Numerous defenses to these charges exist.
Allan Marain and Norman Epting, Jr. are New Jersey drug paraphernalia lawyers. Both have successfully defended persons charged with those offenses on numerous occasions. They know their way around. They are available to review your situation in a no-charge no-obligation conference.
Allan Marain |
Norman Epting, Jr.
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