Understanding New Jersey’s Law on Toxic Chemicals

New Jersey has a specific law that criminalizes the possession and use of certain toxic chemicals. This law, known as Section 2C:35-10.4 of the New Jersey Code of Criminal Justice, was enacted to address the dangers associated with inhaling or otherwise ingesting toxic substances to get high. As a New Jersey criminal defense lawyer, it’s important to fully understand this statute in order to effectively represent clients charged under it.

What the Law Says

Section 2C:35-10.4 states that it is unlawful for any person to:

(1) Possess or distribute a toxic chemical knowing, believing, or under circumstances where one reasonably should know, that the toxic chemical will be used to manufacture, distribute, or dispense a controlled dangerous substance or controlled substance analog in violation of the provisions of chapter 35 of Title 2C of the New Jersey Statutes; or

(2) Possess a toxic chemical for the purpose of causing a condition of intoxication.

This subsection does not apply to the possession and use of nitrous oxide for medical or dental purposes.

A “toxic chemical” is defined as any chemical or substance having a potentiality for harmful effect on humans. The statute provides a non-exhaustive list of chemicals that qualify, including: freon; acetone; ethyl ether; nitrous oxide; amyl nitrate; butyl nitrate; chlorohydrocarbons; and aromatic hydrocarbons.

Defenses to Toxic Chemical Charges

There are several potential defenses that a skilled New Jersey criminal defense lawyer may be able to assert on behalf of a client facing charges under this statute:

• Lack of criminal purpose – The law specifically requires that possession of a toxic chemical be “for the purpose of causing a condition of intoxication.” This means that merely possessing a common household chemical like nail polish remover or paint thinner is not necessarily illegal. The prosecution must prove that the purpose of having the chemical was to get high.
• No intent to ingest – Similarly, if the toxic chemical was possessed for some legitimate purpose other than ingestion, a defense may exist. For example, someone who uses acetone for cleaning or who possesses nitrous oxide for baking would not be criminally liable.
• No knowledge – The statute requires knowing possession of a substance for the purpose of intoxication. If someone was unaware that a chemical in their possession could be potentially abused, it may provide a defense.
• Prescription medication – The law carves out an exception for possession and use of nitrous oxide for medical/dental purposes. This suggests that someone taking a toxic chemical pursuant to a valid prescription could not be charged.
• Unlawful search – If the toxic chemical was discovered through an unconstitutional search, any evidence obtained may be suppressed. This could result in dismissal of the charges.