Bill Text: NJ A1261 | 2016-2017 | Regular Session | Introduced
Bill Title: Revises grades and sentencing determinations for certain controlled dangerous substances.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2016-01-27 - Introduced, Referred to Assembly Judiciary Committee [A1261 Detail]
Download: New_Jersey-2016-A1261-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Assemblywoman MARLENE CARIDE
District 36 (Bergen and Passaic)
Assemblyman BRIAN E. RUMPF
District 9 (Atlantic, Burlington and Ocean)
Assemblyman TIM EUSTACE
District 38 (Bergen and Passaic)
Assemblywoman DIANNE C. GOVE
District 9 (Atlantic, Burlington and Ocean)
Assemblyman JOSEPH A. LAGANA
District 38 (Bergen and Passaic)
Assemblywoman NANCY F. MUNOZ
District 21 (Morris, Somerset and Union)
Assemblyman BOB ANDRZEJCZAK
District 1 (Atlantic, Cape May and Cumberland)
Assemblyman RAJ MUKHERJI
District 33 (Hudson)
Co-Sponsored by:
Assemblymen C.A.Brown, Space, Gusciora and Assemblywoman Vainieri Huttle
SYNOPSIS
Revises grades and sentencing determinations for certain controlled dangerous substances.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning controlled dangerous substances and amending N.J.S.2C:35-2 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. As used in this chapter:
"Adulterants or dilutants" means substances which are mixed or combined with a controlled dangerous substance and any medium which is used to carry a controlled dangerous substance, if the controlled dangerous substance is not readily removable from the medium. The terms shall include, but not be limited to blotter paper, stamps or cigarettes.
"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, any substance the distribution of which is specifically prohibited in N.J.S.2C:35-3, in section 3 of P.L.1997, c.194 (C.2C:35-5.2), in section 5 of P.L.1997, c.194 (C.2C:35-5.3), in section 2 of P.L.2011, c.120 (C.2C:35-5.3a), or in section 2 of P.L.2013, c.35 (C.2C:35-5.3b), and any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance in the human body. When any statute refers to controlled dangerous substances, or to a specific controlled dangerous substance, it shall also be deemed to refer to any drug or substance which, when ingested, is metabolized or otherwise becomes a controlled dangerous substance or the specific controlled dangerous substance, and to any substance that is an immediate precursor of a controlled dangerous substance or the specific controlled dangerous substance. 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, Drug1,1 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 the 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 devices or their components, parts, or accessories.
"Drug or alcohol dependent person" means a person who as a result of using a controlled dangerous substance or controlled substance analog or alcohol has been in a state of psychic or physical dependence, or both, arising from the use of that controlled dangerous substance or controlled substance analog or alcohol on a continuous or repetitive basis. Drug or alcohol 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.
"Heroin mixture" means a mixture containing heroin, or its analog, and any other controlled dangerous substance classified as a narcotic drug or its analog.
"Immediate precursor" means a substance which the Division of Consumer Affairs in the Department of Law and Public Safety 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.
"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.
"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 the plant or its seeds, except those containing resin extracted from the plant; but shall not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
"Mixture" means a substance containing two or more controlled dangerous substances or controlled substance analogs that have been combined by any means so that the injection, inhalation or ingestion of the mixture would result in the consumption of two or more controlled dangerous substances or analogs.
"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.
(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 Department of Health.
"Prescription legend drug" means any drug which under federal or State law requires dispensing by prescription or order of a licensed physician, veterinarian, or dentist and is required to bear the statement "Rx only" or similar wording indicating that such drug may be sold or dispensed only upon the prescription of a licensed medical practitioner and is not a controlled dangerous substance or stramonium preparation.
"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 Division of Consumer Affairs in the Department of Law and Public Safety 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 licensed and approved by the Department of Human Services and which is approved by any county probation department for the inpatient treatment and rehabilitation of drug or alcohol 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 Director of the Division of Consumer Affairs in the Department of Law and Public Safety pursuant to the director's authority as provided in section 3 of P.L.1970, c.226 (C.24:21-3).
"State" means the State of New Jersey.
"Stramonium preparation" means a substance prepared from any part of the stramonium plant in the form of a powder, pipe mixture, cigarette, or any other form with or without other ingredients.
"Stramonium plant" means the plant Datura Stramonium Linne, including Datura Tatula Linne.
"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.
["Prescription legend drug" means any drug which under federal or State law requires dispensing by prescription or order of a licensed physician, veterinarian, or dentist and is required to bear the statement "Rx only" or similar wording indicating that such drug may be sold or dispensed only upon the prescription of a licensed medical practitioner and is not a controlled dangerous substance or stramonium preparation.
"Stramonium preparation" means a substance prepared from any part of the stramonium plant in the form of a powder, pipe mixture, cigarette, or any other form with or without other ingredients.
"Stramonium plant" means the plant Datura Stramonium Linne, including Datura Tatula Linne.]
"Unit" means either the smallest discrete pill, tablet, capsule, vial, packet, fold or other unit of distribution or packaging of the controlled dangerous substance, or the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, whichever method of measurement results in the greater number of units.
(cf: P.L.2013, c.35, s.1)
2. 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) (a) [Heroin,] (i) A person is guilty of a crime of the first degree if he violates subsection a. of this section with respect to heroin, or its analog, in a quantity of 20 ounces or more including any adulterants or dilutants or 10,000 or more units; or
(ii) a heroin mixture in a quantity of 10 ounces or more including any adulterants, dilutants, or controlled dangerous substances other than heroin or the analogs of such substances or 5,000 or more units; or
(iii) a substance classified as a narcotic drug in Schedule I or II, or the analog of any such substance, in a quantity of 20 ounces or more including any adulterants or dilutants or 10,000 or more units.
A person convicted of a crime under subparagraph (a) of paragraph (1) of this subsection 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, fixed at, or between, one-third and one-half of the sentence imposed, or 10 years, whichever is greater, during which the defendant shall be ineligible for parole. If the defendant is subject to an extended term under subsection f. of N.J.S.2C:43-6, the minimum term during which the defendant shall be ineligible for parole shall be fixed at, or between, one-third and one-half of the sentence imposed, or 15 years, whichever is greater;
(b) (i) A person is guilty of a crime of the first degree if he violates subsection a. of this section with respect to heroin, or its analog, in a quantity of two ounces or more, but less than 20 ounces including any adulterants or dilutants or 1,000 or more, but less than 10,000 units; or
(ii) a heroin mixture in a quantity of one ounce or more, but less than 10 ounces including any adulterants, dilutants or controlled dangerous substances other than heroin or the analogs of such substances or 500 or more, but less than 5,000 units; or
(iii) a substance classified as a narcotic drug in Schedule I or II, or the analog of any such substance, in a quantity of two ounces or more, but less than 20 ounces including any adulterants or dilutants or 1,000 or more, but less than 10,000 units; or
(iv) if he violates subsection a. of this section with respect to 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, or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants [is guilty of a crime of the first degree. The defendant] .
A person convicted of a crime under subparagraph (b) of paragraph (1) of this subsection 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 [$500,000.00] $500,000 may be imposed upon a person convicted of a crime under paragraph (1) of this subsection;
(2) [A] (a) (i) A person is guilty of a crime of the second degree if he violates subsection a. of this section with respect to heroin, or its analog, in a quantity of one-half ounce or more, but less than two ounces including any adulterants or dilutants or 250 or more, but less than 1,000 units; or
(ii) a heroin mixture in a quantity of one-quarter ounce or more, but less than one ounce including any adulterants, dilutants or controlled dangerous substances other than heroin or the analogs of such substances or 125 or more, but less than 500 units; or
(b) any other substance referred to in subsubparagraph (iv) of subparagraph (b) of 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] (a (i) A person is guilty of a crime of the third degree if he violates subsection a. of this section with respect to heroin, or its analog, in a quantity of less than one-half ounce including any adulterants or dilutants or less than 250 units; or
(ii) a heroin mixture in a quantity of less than one-quarter ounce including any adulterants, dilutants, or controlled dangerous substances other than heroin or the analogs of such substances or less than 125 units; or
(b) any other substance referred to in subsubparagraph (iv) of subparagraph (b) of 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] .
Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$75,000.00] $75,000 may be imposed upon a person convicted of a crime under this paragraph;
(4) A person is guilty of a crime of the second degree if he violates subsection a. of this section with respect to 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] one-half ounce or more but less than two ounces including any adulterants or dilutants [is guilty of a crime of the second degree] , or 250 or more units but fewer than 1,000 units;
(5) A person is guilty of a crime of the third degree if he violates subsection a. of this section with respect to 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] one-half ounce including any adulterants or dilutants [is guilty of a crime of the third degree except that, notwithstanding] , or fewer than 250 units. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$75,000.00] $75,000 may be imposed upon a person convicted of a crime under this paragraph;
(6) [Lysergic] A person is guilty of a crime of the first degree if he violates subsection a. of this section with respect to 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 N.J.S.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 [$500,000.00] $500,000 may be imposed upon a person convicted of a crime under this paragraph;
(7) [Lysergic] A person is guilty of a crime of the second degree if he violates subsection a. of this section with respect to 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] A person is guilty of a crime of the first degree if he violates subsection a. of this section with respect to methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces 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] $300,000 may be imposed upon a person convicted of a crime under this paragraph;
(9) (a) [Methamphetamine] A person is guilty of a crime of the second degree if he violates subsection a. of this section with respect to methamphetamine, or its analog, or phenyl-2-propanone (P2P), 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];
(b) [Methamphetamine] A person is guilty of a crime of the third degree if he violates subsection a. of this section with respect to 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 that notwithstanding] . Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$75,000.00] $75,000 may be imposed upon a person convicted of a crime under this subparagraph;
(10) (a) [Marijuana] A person is guilty of a crime of the first degree if he violates subsection a. of this section with respect to marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more 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] $300,000 may be imposed upon a person convicted of a crime under this subparagraph;
(b) [Marijuana] A person is guilty of a crime of the second degree if he violates subsection a. of this section with respect to marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants 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] or dilutants [, is guilty of a crime of the second degree];
(11) [Marijuana] A person is guilty of a crime of the third degree if he violates subsection a. of this section with respect to marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants [, is guilty of a crime of the third degree except that, notwithstanding] . Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$25,000.00] $25,000 may be imposed upon a person convicted of a crime under this paragraph;
(12) [Marijuana] A person is guilty of a crime of the fourth degree if he violates subsection a. of this section with respect to marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants [, is guilty of a crime of the fourth degree];
(13) [Any] A person is guilty of a crime of the third degree if he violates subsection a. of this section with respect to 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]. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$25,000.00] $25,000 may be imposed upon a person convicted of a crime under this paragraph; or
(14) [Any] A person is guilty of a crime of the fourth degree if he violates subsection a. of this section with respect to any Schedule V substance, or its analog [, is guilty of a crime of the fourth degree except that, notwithstanding]. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to [$25,000.00] $25,000 may be imposed upon a person convicted of a crime under this paragraph.
c. [Where] (1) With respect to heroin or its analog, a heroin mixture, or a substance classified as a narcotic drug in Schedule I or II or the analog of any such substance, the quantity or the number of units of the substance or analog manufactured, distributed, dispensed, or possessed or controlled with intent to manufacture, distribute, or dispense, or both methods of measurement, may be used to determine whether an offense has been committed or the degree of the offense, and the indictment or accusation shall specify whether the degree of the offense is based on the quantity or the number of units of the substance or analog, or both methods of measurement. Whenever the indictment or accusation provides that the degree of the offense is based on the number of units of the substance or analog, the indictment or accusation shall further specify whether the number of units involved is based on the number of discrete pills, tablets, capsules, vials, packets, folds or other units of distribution or packaging of the controlled dangerous substance or analog, or based on the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, or based on both methods of measurement to determine the number of units involved.
(2) Whenever the degree of the offense for violation of this section depends on the quantity of the substance or the number of units or plants, the quantity or number of units or plants involved shall be determined by the trier of fact. [Where] Whenever the indictment or accusation so provides, the quantity or number of units or plants 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.
d. Except when the indictment or accusation provides that the degree of the offense for violation of this section is to be determined for a heroin mixture as defined in N.J.S.2C:35-2, if the offense involves a mixture of two or more controlled dangerous substances or analogs, when the indictment or accusation so provides, the degree of the offense shall be determined by applying the entire amount of the mixture including any adulterants or dilutants to the type of controlled dangerous substance or analog included in the mixture that would result in the highest degree of crime. For purposes of aggregating amounts involved in multiple acts of manufacturing, distribution, dispensing or possession with intent to distribute or dispense pursuant to subsection c. of this section, when the indictment or accusation so provides, the entire amount of a mixture including any adulterants or dilutants shall be treated as the type of controlled dangerous substance or analog included in the mixture that would result in the highest degree of crime.
e. Notwithstanding N.J.S.2C:43-5 or any other provision of law, whenever a defendant is convicted of a violation of this section involving heroin or its analog or a heroin mixture and is also convicted of one or more violations of this section involving any other controlled dangerous substance or analog classified as a narcotic drug, the sentence imposed on the heroin, heroin analog or heroin mixture conviction shall run consecutively to the sentence imposed on the highest-degree conviction involving the other narcotic drug, notwithstanding that the offenses occurred at the same time or as part of a single transaction, unless the court finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter other actors from manufacturing, distributing or dispensing multiple varieties of narcotic drugs.
(cf: P.L.2000, c.136, s.1)
3. This act shall take effect immediately.
STATEMENT
This bill decreases the existing statutory thresholds for certain offenses with regard to manufacturing, distributing or dispensing heroin, or having heroin under one's control with the intent to manufacture, distribute or dispense.
Heroin is inexpensive and readily available, with demand having grown sharply in recent years. The current statutory scheme enables drug dealers to meet the growth in demand while avoiding the most serious criminal penalties.
Under current law, the seriousness of drug crimes is measured by the amount or weight of the controlled dangerous substances involved in the crime. Current law provides for equivalent weights and quantities of heroin and cocaine to be treated identically, which does not take into consideration the differences between how the drugs are distributed and used.
According to a July 2013 report by the State Commission of Investigation concerning controlled dangerous substance abuse, the amounts of heroin consumed by an average user and carried by an average dealer are far lower than those involving cocaine. Thus, current law enables many individuals arrested for heroin distribution offenses to avoid the most serious drug charges.
Grading Scheme - Crimes of the First Degree: Under the amendments, it would be a crime of the first degree, pursuant to new subparagraph (a) of paragraph (1) of subsection b. of N.J.S.2C:35-5, to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense:
· heroin or its analog in a quantity of 20 ounces or more including any adulterants or dilutants, or 10,000 or more units;
· a heroin mixture in a quantity of 10 ounces or more including any adulterants, dilutants, or controlled dangerous substances (CDS) other than heroin or the analogs of such substances or 5,000 or more units; or
· a substance classified as a narcotic drug in Schedule I or II, or the analog of any such substance, in a quantity of 20 ounces or more including any adulterants or dilutants or 10,000 or more units.
A defendant convicted of this first degree crime would be sentenced to a mandatory term of imprisonment which would include a minimum term of between one-third and one-half of the sentence imposed or 10 years, whichever is greater, during which the defendant would be ineligible for parole. If the defendant is subject to an extended term pursuant to subsection f. of N.J.S.2C:43-6, the minimum term would be one-third to one-half of the sentence imposed or 15 years, whichever is greater. A fine of up to $500,000 could be imposed.
Under the new subparagraph (b) of paragraph (1) of subsection b. of N.J.S.2C:35-5, it would also a crime of the first degree to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense:
· heroin or its analog in a quantity of two ounces or more, but less than 20 ounces including any adulterants or dilutants, or 1,000 or more, but less than 10,000 units;
· a heroin mixture in a quantity of one ounce or more, but less than 10 ounces including any adulterants, dilutants, or CDS other than heroin or the analogs of such substances or 500 or more, but less than 5,000 units;
· a substance classified as a narcotic drug in Schedule I or II, or the analog of any such substance, in a quantity of two ounces or more, but less than 20 ounces including any adulterants or dilutants, or 1,000 or more, but less than 10,000 units; or
· any other substance referred to in subsubparagraph (iv) of subparagraph (b) of paragraph (1) of subsection b. (coca leaves and any salt, compound, derivative, or preparation of coca leaves and substances that are chemically equivalent), in a quantity of five ounces or more including any adulterants or dilutants.
A defendant convicted of this first degree crime would be sentenced to a mandatory term of imprisonment which would include the imposition of a minimum term fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant would be ineligible for parole. A fine of up to $500,000 could be imposed.
Grading Scheme - Crimes of the Second Degree: Under the new subsubparagraph (i) of subparagraph (a) of paragraph (2) of subsection b. of N.J.S.2C:35-5, it would be a crime of the second degree to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense:
· heroin or its analog in a quantity of one-half ounce or more, but less than two ounces including any adulterants or dilutants or 250 or more, but less than 1,000 units;
· a heroin mixture in a quantity of one-quarter ounce or more, but less than one ounce including any adulterants, dilutants, or CDS other than heroin or the analogs of such substances or 125 or more, but less than 500 units; or
· any other substance referred to in subsubparagraph (iv) of subparagraph (b) of paragraph (1) of subsection b. (coca leaves and any salt, compound, derivative, or preparation of coca leaves and substances that are chemically equivalent), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants.
Grading Scheme - Crimes of the Third Degree: Under the new subparagraph (a) of paragraph (3) of subsection b., it would be a crime of the third degree to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense:
· heroin or its analog in a quantity of less than one-half ounce including any adulterants or dilutants or less than 250 units;
· a heroin mixture in a quantity of less than one-quarter ounce including any adulterants, dilutants, or CDS other than heroin or the analogs of such substances or less than 125 units, or
· any other substance referred to in subsubparagraph (iv) of subparagraph (b) of paragraph (1) of subsection b. (coca leaves and any salt, compound, derivative, or preparation of coca leaves and substances that are chemically equivalent), in a quantity less than one-half ounce including any adulterants or dilutants.
Grading Scheme - Other Crimes of the Second Degree: It would be a crime of the second degree, under paragraph (4) of subsection b., to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense, a substance classified as a narcotic drug in Schedule I or II other than those specifically covered in N.J.S.2C:35-5, or the analog of such substance, in a quantity of one-half ounce or more but less than two ounces including any adulterants or dilutants, or 250 or more units but fewer than 1,000 units.
Grading Scheme - Other Crimes of the Third Degree: It would be a crime of the third degree, under paragraph (5) of subsection b., to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense, a substance classified as a narcotic drug in Schedule I or II other than those specifically covered in N.J.S.2C:35-5, or the analog of such substance, in a quantity of less than one-half ounce including any adulterants or dilutants, or fewer than 250 units. The fine of $75,000 set out in current law for this crime would be unchanged.
Criminal Sentencing in General: A crime of the first degree is generally punishable by a term of imprisonment of ten to 20 years or a fine of up to $200,000, or both; a crime of the second degree, by a term of five to ten years or a fine up to $150,000, or both; and a crime of the third degree, by a term of three to five years or a fine up to $15,000, or both.
Requirements for Indictment or Accusation: The bill provides that with respect to heroin or its analog, a heroin mixture, or a substance classified as a narcotic drug in Schedule I or II or the analog of any such substance, the quantity or the number of units of the substance or analog manufactured, distributed, dispensed, or possessed or controlled with intent to manufacture, distribute, or dispense, or both methods of measurement, may be used to determine whether an offense has been committed or the degree of the offense, and the indictment or accusation shall specify whether the degree of the offense is based on the quantity or the number of units of the substance or analog, or both methods of measurement. Whenever the indictment or accusation provides that the degree of the offense is based on the number of units of the substance or analog, the indictment or accusation shall further specify whether the number of units involved is based on the number of discrete pills, tablets, capsules, vials, packets, folds or other units of distribution or packaging of the controlled dangerous substance or analog, or based on the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, or based on both methods of measurement to determine the number of units involved.
The bill also provides that whenever the degree of the offense depends on the quantity of the substance or the number of units or plants, the quantity or number of units or plants involved would be determined by the trier of fact. Whenever the indictment or accusation so provides, the quantity or number of units or plants involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense.
The bill further provides that except when the indictment or accusation provides that the degree of the offense is to be determined for a heroin mixture as defined in the bill, if the offense involves a mixture of two or more controlled dangerous substances or analogs, when the indictment or accusation so provides, the degree of the offense would be determined by applying the entire amount of the mixture including any adulterants and dilutants to the type of controlled dangerous substance or analog included in the mixture that would result in the highest degree of crime. For purposes of aggregating amounts involved in multiple acts of manufacturing, distribution, dispensing or possession with intent to distribute or dispense, when the indictment or accusation so provides, the entire amount of a mixture including any adulterants and dilutants would be treated as the type of controlled dangerous substance or analog included in the mixture that would result in the highest degree of crime.
Consecutive Sentences: Under the bill, whenever a defendant is convicted of a violation involving heroin or its analog or a heroin mixture and is also convicted of one or more violations involving any other controlled dangerous substance or analog classified as a narcotic drug, the sentence imposed on the heroin, heroin analog or heroin mixture conviction would run consecutively to the sentence imposed on the highest-degree conviction involving the other narcotic drug, notwithstanding that the offenses occurred at the same time or as part of a single transaction, unless the court finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter other actors from manufacturing, distributing or dispensing multiple varieties of narcotic drugs.
Definitions: In addition, the bill defines the phrase "adulterants or dilutants," "mixture," "heroine mixture," and "unit" for purposes of chapter 35 of Title 2C of the New Jersey Statutes. Under the bill, "adulterants or dilutants" means substances which are mixed or combined with a controlled dangerous substance and any medium which is used to carry a controlled dangerous substance, if the controlled dangerous substance is not readily removable from the medium. The term includes, but is not limited to, blotter paper, stamps or cigarettes. The bill defines "mixture" as a substance containing two or more controlled dangerous substances or controlled substance analogs that have been combined by any means so that the injection, inhalation or ingestion of the mixture would result in the consumption of two or more controlled dangerous substances or analogs. "Heroin mixture" is defined as a mixture containing heroin, or its analog, and any other controlled dangerous substance classified as a narcotic drug or its analog. "Unit" is defined as either the smallest discrete pill, tablet, capsule, vial, packet, fold or other unit of distribution or packaging of the controlled dangerous substance, or the amount which is commonly distributed for consumption at one time by an individual to achieve the desired effect, whichever method of measurement results in the greater number of units.
The bill takes effect immediately upon enactment.
