New Jersey-2018-S323-Introduced

An Act concerning controlled dangerous substances and amending 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:35-5 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, or its analog, in a quantity of 2.5 ounces or more including any adulterants or dilutants; or

(b) 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] (c) Upon conviction for an offense described in subparagraph (a) or (b) of this paragraph, the defendant 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 may be imposed;

(2) [A] (a) Heroin or its analog, in a quantity of 0.17 ounces or more but less than 2.5 ounces including any adulterants or dilutants; or

(b) any other substance referred to in 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) Heroin or its analog, in a quantity of less than 0.17 ounces including any adulterants or dilutants; or

(b) any other substance referred to in 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, upon conviction for an offense described in subparagraph (a) or (b) of this paragraph, a fine of up to $75,000.00 may be imposed;

(4) 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 ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;

(5) 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 ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(6) 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 may be imposed;

(7) 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, 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 may be imposed;

(9) (a) 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, 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 the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(10) (a) 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 may be imposed;

(b) 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 dilutants, is guilty of a crime of the second degree;

(11) 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 the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;

(12) 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 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 the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

(14) Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.

c. Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity 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.

(cf: P.L.2000, c.136, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill would increase the penalties for offenses involving manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense heroin by lowering the threshold quantities for crimes of the first, second, and third degree. The bill would not affect the threshold quantities for manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense any other controlled dangerous substance.

Currently, the threshold quantity for a first degree offense involving manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense heroin is five ounces or more; the bill would reduce the threshold quantity to 2.5 ounces or more of heroin. Currently, the threshold quantity for a second degree offense is one-half ounce or more but less than five ounces of heroin; the bill would reduce this threshold quantity to 0.17 ounces or more but less than 2.5 ounces of heroin. Currently, the threshold quantity for a third degree offense is less than one-half ounce of heroin; the bill would reduce the threshold quantity to less than 0.17 ounces of heroin.

The first degree crime of manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense heroin is ordinarily punishable by imprisonment for 10 to 20 years, up to a $500,000 fine, or both. Additionally, the term of imprisonment may include imposition of a mandatory minimum term, fixed at, or between, one-third and one-half of the sentence imposed with no eligibility for parole. The second degree crime of manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense heroin is ordinarily punishable by imprisonment for five to 10 years, up to a $150,000 fine, or both. The third degree crime of manufacturing, distributing, or dispensing or possessing or having under one's control with intent to manufacture, distribute, or dispense heroin is ordinarily punishable by imprisonment for three to five years, up to a $75,000 fine, or both.

This bill implements Recommendation No. 7 from the July 2013 report from the State Commission of Investigation titled "Scenes from an Epidemic: A Report on the SCI's Investigation of Prescription Pill and Heroin Abuse."