NJ Laws Email Newsletter E326
Kenneth Vercammen, Attorney at Law
January 26, 2010
In This Issue:
RECENT CASES:
1. NJ adopts the "New Jersey Compassionate Use Medical Marijuana Act."
2. New Law Gives Mandatory Jail for Certain Drunks who Drive While Suspended.
3. New Law Requires Palimony Agreements to be in Writing.
4. New Law Permits Judge to Order Community Service if Defendant Unable to Pay
Fine.
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(732) 572-0500
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Greetings,
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1. NJ adopts the "New Jersey Compassionate Use Medical Marijuana Act."
Medical research suggests that marijuana may alleviate pain or other symptoms associated with certain debilitating medical conditions. Federal law, however, prohibits the use of marijuana. Ninety-nine percent of marijuana-related arrests in the country are made under state law rather than under federal law. Changing state law would therefore provide legal protection to the vast majority of seriously ill people who use marijuana medically. Thirteen other states permit the use of marijuana for medical purposes, and with this law, New Jersey would join the effort to protect patients using marijuana to alleviate suffering from arrest, prosecution, and other legal sanctions, as well as provide protection to their physicians, caregivers,alternative treatment centers authorized to produce marijuana for medical purposes,and persons who simply are in the vicinity of permitted medical use of marijuana.
PATIENT/CAREGIVER IDENTIFICATION CARD
The law provides that DHSS shall issue registry identification cards containing
the patient's photograph to qualifying patients and their primary caregivers. The
law defines "qualifying patient" or "patient" as a person who has been diagnosed
by a physician with whom the patient has a bona fide physician-patient relationship
as having a "debilitating medical condition." "Debilitating medical condition"
is defined as: cancer, glaucoma, positive HIV/AIDS status, or the treatment of these
conditions; a chronic or debilitating disease or medical condition or its treatment
that produces cachexia or wasting syndrome, severe or chronic pain, severe nausea,
seizures, severe and persistent muscle spasms; and other medical conditions that
may administratively be added by the department. "Primary caregiver" or "caregiver"
is defined as a person who is at least 18 years old, who has never been convicted
of a felony drug offense, has agreed to assist with a qualifying patient's medical
use of marijuana and has been designated as primary caregiver on the patient's registry
identification card, or in other written notification to the department. A primary
caregiver may only have one qualified patient at any one time. A patient's physician
could not serve as a primary caregiver.
DHSS shall issue registry identification cards to qualifying patients who submit
the following:
- written certification that the person is a qualifying patient (medical records
or a statement signed by a physician with whom the patient has a bona fide physician-patient
relationship, stating that in the physician's professional opinion, after completing
a full assessment of the patient's medical history and current medical condition,
the patient has a debilitating medical condition for which recognized drugs or treatments
are or would not be effective and the potential benefits of the medical use of marijuana
would likely outweigh the health risks for the patient);
- the required application or renewal fee, which may be based on a sliding scale
as determined by the commissioner;
- the patient's and caregiver's name, address and date of birth; and
- the physician's name, address and telephone number.
The law requires that DHSS verify the information prior to issuing a registry identification
card, and approve or deny an application or renewal within 15 days of receipt and
issue a registry identification card within five days of approval. DHSS may deny
an application or renewal only if the applicant fails to provide the required information,
or if it determines that the information was falsified. Denial of an application
is considered a final agency decision, subject to review by the Appellate Division
of the Superior Court.
DHSS shall issue a registry identification card to the primary caregiver named in
a patient's approved application if the caregiver signs a statement agreeing to
provide marijuana only to the patient who has named him as primary caregiver. DHSS
would be prohibited from issuing a registry identification card to any proposed
caregiver with a felony drug offense conviction.
Under the law, it would be a disorderly persons offense, punishable by up to 180
days in jail and a $1,000 fine, for a person to fabricate or misrepresent a registry
identification card to a law enforcement official.
DHSS is to maintain a confidential list of the persons to whom it has issued registry
identification cards. Individual names and other identifying information on the
list are to be confidential, and not subject to public access, but could be released
to authorized DHSS employees as necessary to perform official department duties
and to authorized employees of State or local law enforcement agencies when necessary
to verify that a person who is engaged in the suspected or alleged medical use of
marijuana is lawfully in possession of a registry identification card.
ALTERNATIVE TREATMENT CENTERS
The law provides that DHSS shall establish a registration program authorizing alternative
treatment centers to produce and dispense marijuana for medical purposes. A person
who has been convicted of possession or sale of a controlled dangerous substance
shall not be issued a permit to operate, or be an employee of, an alternative treatment
center, unless such conviction was for a violation of federal law relating to possession
or sale of marijuana for conduct that is legal under the law. All usable marijuana,
seeds and seedlings associated with the production of marijuana for a registered
qualifying patient would be the property of the patient and must be provided to
the patient upon request. An alternative treatment center may be reimbursed by
a patient for reasonable costs associated with the production of marijuana for
that patient.
An alternative treatment center permit holder or his employee would not be subject
to arrest or prosecution, or penalized in any manner for the acquisition, distribution,
possession, cultivation, or transportation of marijuana or paraphernalia related
to marijuana on behalf of a registered identification cardholder, provided the
amount of marijuana possessed by the center, combined with the amount possessed
by the registered patient and his primary caregiver, does not exceed six marijuana
plants and one ounce of usable marijuana per patient
LEGAL PROTECTIONS
The law provides that a patient and his caregiver who possess a registry identification
card and collectively possess no more than six marijuana plants and one ounce of
usable marijuana would receive the following protections under this law:
- The person would not be subject to arrest, prosecution, or penalty, or denied
any right or privilege, including civil penalty or disciplinary action by a professional
licensing board, for the medical use of marijuana.
- The person would be entitled to a rebuttable presumption of medical use of marijuana
if the patient or his caregiver possesses a registry identification card and the
permissible amount of marijuana.
- The person could assert an affirmative defense of medical use of marijuana, unless
the person was operating a motor vehicle, aircraft or motorboat while under the
influence of marijuana, or smoking marijuana in a school bus or other form of public
transportation, on any school grounds, in any correctional facility, or at any public
park, public beach, public recreation center or youth center.
- Possession of, or application for, a registry identification card shall not alone
constitute probable cause to search a person or his property.
- If a patient has in his possession a registry identification card and the permissible
amount of marijuana, N.J.S.A.26:2-82 (authorizing the destruction of marijuana determined
to exist by the Department of Health and Senior Services) would not apply.
The law extends these protections to a qualified patient who is under 18 years of
age if the patient and his legal guardian are advised by the patient's physician
of the risks and benefits of using marijuana for medical purposes, and the legal
guardian consents in writing to allow the medical use of marijuana, serve as the
primary caregiver, and control the patient's acquisition, dosage and frequency
of use.
A physician who provides written certification for the medical use of marijuana
to a qualifying patient would not be subject to arrest, prosecution, or penalty
in any manner, or denied any right or privilege, including a penalty or disciplinary
action by the State Board of Medical Examiners.
In addition, the law would protect persons from arrest and prosecution for constructive
possession, conspiracy, or any other offense if they were in the presence or vicinity
of the medical use of marijuana as permitted by the law.
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2. New Law Gives Mandatory Jail for Certain Drunks who Drive While Suspended.
The statute creates criminal penalties for persons whose driver's licenses are suspended
for certain drunk driving offenses and who, while under suspension for those offenses,
unlawfully operate a motor vehicle.
It will be a crime of the fourth degree to operate a motor vehicle during a period
of driver's license suspension if the person's driver's license was suspended or
revoked for a first offense of driving while intoxicated or refusal to submit to
a breath test, and the person had previously been convicted of operating a motor
vehicle while under suspension for that first offense.
It is a crime of the fourth degree to operate a motor vehicle during a period of
license suspension if the person's license was suspended or revoked for a second
or subsequent offense of driving while intoxicated or refusal to submit to a breath
test.
A person convicted of violating the law's provisions is to be sentenced to a term
of imprisonment which would include a six-month period of parole ineligibility.
The effective date is 18 months to permit the Motor Vehicle Commission to make modifications
to its computer system.
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3. New Law Requires Palimony Agreements to be in Writing.
This law is intended to overturn recent "palimony" decisions by New Jersey courts
by requiring that any such contract must be in writing and signed by the person
making the promise. More specifically, the law provides that a promise by one party
to a non-marital personal relationship to provide support or other consideration
for the other party, either during the course of such relationship or after its
termination, is not binding unless it is in writing and signed. The law provides
that no such written promise is binding unless it was made with the independent
advice of counsel for both parties.
In two recent cases, Devaney v. L'Esperance, 195 N.J. 247 (2008) and In re Estate
of Roccamonte, 174 N.J. 381 (2002), the New Jersey Supreme Court upheld palimony
agreements between two unmarried cohabitants. In the Devaney case the court held
that "cohabitation is not an essential requirement for a cause of action for palimony,
but a marital-type relationship is required." In the Roccamonte case, the court
held that an implied promise of support for life is enforceable against the promisor's
(cohabitant's) estate. Those decisions are consistent with the court's prior decision
in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which had held that a promise of
lifetime support by one cohabitant to another in a marital-like relationship would
be enforced, if one of the partners was induced to cohabit by the promise. The
court held that the right to such support is found in contract principles and that
the contract may be either express or implied.
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4.New Law Permits Judge to Order Community Service if Defendant Unable to Pay Fine.
Under existing law, if a person is sentenced by a municipal court to pay a monetary
penalty and that person defaults on the payment, the court may order the person
to perform community service pursuant to the provisions of N.J.S.A.2B:12-23.
This new law as amended would supplement that provision of the law by allowing a
municipal court to permit a person to pay in installments; grant a credit for jail
time against the penalty; have the penalty suspended or revoked or order the performance
of community service in lieu of payment of the penalty; or impose any other alternative
authorized by law.
Under the provisions of the new law, if a person does not have the ability to pay
on the day of the hearing, the court may order payment by installments. If the
person defaults on an installment, the court may: (1) reduce or suspend the penalty
or modify the installment plan, (2) order that credit be given against the amount
owed for each day of confinement, if the court finds that the person has served
jail time for the default; (3) revoke or suspend any unpaid portion of the penalty,
if the court finds that the circumstances that warranted it have changed or that
it would be unjust to require payment; (4) order the person to perform community
service in lieu of payment of the penalty; or (5) impose any other alternative permitted
by law in lieu paying the penalty. Restitution, surcharges for unsafe driving pursuant
to subsection f. of section 1 of P.L.2000, c.75 (C.39:4-97.2), and assessments that
are not statutorily mandated are excluded from the definition of penalty.
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Congratulations new Superior Court Judges Joseph Paone assigned to the Superior
Court, Criminal Division, Middlesex County and Superior Court Judge Lisa M. Vignuolo
assigned to the Superior Court, Family Division, Middlesex County.
