New Jersey Section 2C:36-5 – Delivering drug paraphernalia to person under 18 years of age, crime of third degree
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New Jersey Law Makes Delivering Drug Paraphernalia to Minors a Third-Degree Crime
New Jersey has strict laws prohibiting the delivery of drug paraphernalia to minors. Specifically, Section 2C:36-5 of the New Jersey Code of Criminal Justice makes it a third-degree crime for anyone 18 or older to deliver drug paraphernalia to someone under 18. This law aims to protect minors from the harms of drug use by penalizing adults who enable it.
What is Drug Paraphernalia Under New Jersey Law?
New Jersey defines drug paraphernalia quite broadly in Section 2C:36-1. It includes any equipment, product, or material intended for manufacturing, compounding, testing, ingesting, inhaling, or otherwise introducing a controlled dangerous substance into the human body. This encompasses things like bongs, pipes, roach clips, cocaine spoons, crack vials, tobacco rolling papers, and even something as simple as a small plastic bag if intended for drugs.
The key is that the person must have intent for the item to be used with drugs. Simply possessing an item that could be considered paraphernalia is not enough for a conviction. Prosecutors have to prove intent through statements, prior drug convictions, proximity of the item to drugs, how the item is displayed for sale, and expert testimony about the item’s common use12.
Delivery to Minors is a Third-Degree Felony
Under 2C:36-5, any person 18 or older who delivers drug paraphernalia to someone under 18 commits a third-degree crime2. This is the same severity as crimes like theft, forgery, and simple assault. A third-degree conviction can result in 3-5 years in prison and fines up to $15,0003. With no prior criminal record, it is common for a third-degree charge to result in probation. But a conviction stays on record for life and can limit job opportunities and educational prospects.
The law prohibits delivery to any person under 18. The adult does not need to actually know the recipient’s age to be guilty. Simply delivering paraphernalia to a minor is sufficient. However, not knowing the recipient was a minor could be a mitigating factor resulting in a more lenient sentence.
What Constitutes “Delivering” Paraphernalia?
The law prohibits “delivering” drug paraphernalia to minors. But what constitutes delivery? The statute itself does not define delivery. However, in the context of drug crimes, delivery typically refers to an actual, constructive, or attempted transfer of an item4. This means a person could be guilty of delivery by:
- Directly handing paraphernalia to a minor.
- Mailing or shipping paraphernalia to a minor.
- Leaving paraphernalia somewhere for a minor to retrieve.
- Attempting to transfer paraphernalia to a minor, even if unsuccessful.
Notably, the law only prohibits the delivery of paraphernalia, not the manufacture or advertisement. So displaying paraphernalia in a store accessible to minors is not illegal. However, a store clerk handing paraphernalia directly to an underage customer would constitute delivery.
Are There Any Defenses?
Those accused of delivering drug paraphernalia to a minor may raise several possible defenses:
Lack of intent: As mentioned, prosecutors must prove intent for an item to be considered paraphernalia. Simply possessing an item with a legitimate purpose is not enough for a conviction. Defendants may argue there was no intent for the item to be used with drugs. This defense is weaker if the recipient actually used the item with drugs.
Lack of knowledge of recipient’s age: Not knowing the recipient’s age could potentially be a mitigating factor, but likely does not constitute a full defense. Per the statute, the recipient’s actual age is what matters, not the defendant’s knowledge. However, courts may show leniency if the minor appeared over 18 or presented false identification.
No actual transfer occurred: If paraphernalia was merely displayed or advertised to the minor, but not directly transferred, the defendant may argue no “delivery” took place. However, attempted delivery may still warrant a conviction.
Entrapment: If police coerced or induced the defendant into delivering paraphernalia when they otherwise would not have, entrapment may invalidate the charge. However, simply providing an opportunity to commit a crime is not entrapment.
Unlawful search: If police obtained evidence through an illegal search, any paraphernalia found may be inadmissible. A common defense is to challenge the legality of how the police obtained evidence.
Misidentification: Those accused may claim the alleged paraphernalia is not actually illegal, or the recipient was misidentified as being under 18. The prosecution has the burden of proving all elements of the charge beyond a reasonable doubt.