New Jersey Section 2C:35-18 – Exemption, burden of proof.

New Jersey’s Medical Marijuana Defense: Section 2C:35-18

New Jersey has had medical marijuana laws on the books since 2010 allowing patients with certain debilitating conditions access to cannabis for therapeutic purposes. But what happens when registered patients still face criminal charges for possession? That’s where Section 2C:35-18 comes in — an affirmative defense that puts the burden of proof on the defendant to show they qualify for an exemption under the state’s medical marijuana program.

What the Law Actually Says

The key text from Section 2C:35-18 reads:

It is an affirmative defense to any criminal action arising under this chapter or chapter 36 that the defendant is the authorized holder of an appropriate registration, permit or order form or is otherwise exempted or authorized under P.L.1970, c.226 (C.24:21-1 et seq.). In such case the possession or distribution of the substance or substances described therein shall be lawful. The burden of proving this affirmative defense rests with the defendant.

In plain English – if you have a valid medical marijuana card, you can use that as a defense against criminal charges for possession, distribution etc. But it’s up to you as the defendant to prove you do in fact have a legitimate registration or authorization.

The law also references the state’s Compassionate Use Medical Marijuana Act (CUMMA) passed in 2010, which legalized medical cannabis in the first place. So any charges related to that program could also qualify for an exemption defense under 2C:35-18.

Real-World Implications

What does this mean in practice? Well, let’s say police arrest a registered medical marijuana patient for having cannabis flower. The patient can argue they’re allowed to possess marijuana as part of the state program.

But simply saying “I’m a patient!” isn’t enough – they would need to present their actual medical marijuana ID card or other proof of authorization. Without that documentation, charges could still apply even if the person legitimately qualifies.

The AG guidelines note “this defense must be raised by the defendant at trial” – you can’t just mention it after the fact. So patients do have to be proactive to take advantage of 2C:35-18.

What About Federal Law?

One complexity is that while New Jersey exempts medical cannabis use under state law, federal law still prohibits all marijuana possession. Technically federal agents could charge registered patients despite having protections at the state level.

However, the Rohrabacher-Farr amendment blocks the Justice Department from spending funds to interfere with state medical marijuana programs. So the risk of federal charges is fairly low.

Limits of the Affirmative Defense

Section 2C:35-18 isn’t a magic wand – there are cases where the medical exemption wouldn’t apply:

• Possessing amounts that exceed the monthly purchase limit
• Distributing to non-patients
• Smoking in prohibited public places
• Driving under the influence

So it primarily covers simple possession within allowed limits by registered patients. Anything outside those boundaries wouldn’t be protected.

What About Recreational Cannabis?

With New Jersey recently voting to legalize recreational marijuana, there’s been confusion over how this affects medical patients. But Section 2C:35-18 is still relevant even after adult-use sales start.

The recreational market will have its own regulations – including possession limits, sales taxes, etc. Many patients still see benefits from the medical program like:

• Not paying sales tax
• Higher monthly purchase amounts
• Access to more products like edibles

So having a valid medical card could still be advantageous in some cases. And 2C:35-18 would still allow patients to assert an affirmative defense if facing charges.

The Court’s Discretion

Ultimately, whether to drop charges based on a medical defense comes down to the judge’s discretion. According to FindLaw, “The court may deny the exemption sought by a person who claims to be a registered qualifying patient… if the court determines that the person does not genuinely use marijuana to treat or alleviate their debilitating medical condition.”

So while Section 2C:35-18 gives patients legal grounds to avoid conviction, it’s not an automatic get-out-of-jail-free card. Courts can still weigh whether someone legitimately requires cannabis for medical purposes.

The Key Takeaway

Section 2C:35-18 gives New Jersey medical marijuana patients a tool to fight criminal charges if they have proper documentation of their authorization. But the burden falls on defendants to prove their exempt status – it’s not assumed automatically. And ultimately judges decide whether the medical defense applies on a case by case basis.

So while this statute provides important protections on paper, it requires some proactivity from patients to leverage it effectively. Understanding the nuance of this affirmative defense can make all the difference if a medical cannabis patient ever faces adverse charges.