Citizens of New Jersey that have been prescribed medical marijuana (and have registered with the State) still have to abide by specific rules and regulations regarding where the drug can be utilized. If the patient consumes the drug orally, then there are no restrictions about where he/she can use the drug. However, if the patient is smoking marijuana, there are certain places where the drug may not be utilized. The prohibited locations mentioned in CUMMA are:
- In a school bus or other form of public transportation.
- On school grounds.
- In a correctional facility.
- In a public park.
- At a beach.
- At a recreation center.
- In any place where smoking is prohibited.
If a patient is found smoking marijuana at any of the above locations, the CUMMA affirmative defense cannot be applied. To see the full section of CUMMA regarding this topic, please see below.
2.4 Smoking Marijuana in Prohibited Locations
CUMMA expressly provides that it does NOT authorize a person to smoke marijuana “in a school bus or other form of public transportation, in a private vehicle unless the vehicle is not in operation, or on any school grounds, in any correctional facility, at any public park or beach, or at any recreation center, or any place where smoking is prohibited pursuant to N.J.S. 2C:33-13.”7 N.J.S.A. 24:61-8(b). As to smoking medical marijuana at such protected locations, CUMMA expressly provides that the patient “shall be subject to such penalties as are provided by law.” Id. In other words, when smoking occurs at a protected location, the CUMMA affirmative defense would be inapplicable, and the offender could be charged and convicted with a marijuana use/being under the influence offense, notwithstanding that the defendant is a qualifying patient and notwithstanding that the marijuana that was smoked had been lawfully dispensed to the patient.
Note that this provision of CUMMA applies only to smoking marijuana in certain specified places, and thus does not prohibit a person from orally consuming or being under the influence of medical marijuana while at any of the protected locations. (Of course, as explained in Section 2.3, it remains unauthorized and illegal for a patient to use or be under the influence of medical marijuana while operating a vehicle, vessel, or certain heavy equipment, regardless of the method of ingestion.)
It should be noted that CUMMA does not prohibit a qualifying patient from smoking in a private vehicle while the vehicle is not in operation. See N.J.S.A. 24:61-S(b). CJ , Section 2.3 (discussing the operation of vehicles, vessels, and heavy equipment, and requiring a thorough investigation to ensure public safety by determining whether a vehicle operator may be under the influence of marijuana). However, CUMMA makes clear that it does not allow a patient to smoke medical marijuana in a school bus or other form of public transportation regardless of whether such vehicle was in operation at the time that the medical marijuana was smoked.
It should also be noted that CUMMA only prohibits qualifying patients from smoking lawfully-dispensed medical marijuana at the specific protected locations listed above. It does not prohibit patients from smoking medical marijuana at other locations.
If a qualifying patient were to smoke medical marijuana while at any of the above-listed protected locations, the CUMMA affirmative defense would not apply to the charge of using a controlled dangerous substance in violation of subsection (b) of N.J.S.A. 2C:35-10. As noted in Section 2.3, N.J.S.A. 24:61-6 expressly provides that the affirmative defense set forth in N.J.S.A. 2C:35-18 applies to a qualifying patient who is “acting in accordance with the provisions of this act [CUMMA].” By smoking marijuana at a prohibited location in direct contravention of N.J.S.A. 24:61-8, the defendant would be acting outside of the legal protections afforded to him or her by CUMMA, and thus could be charged and prosecuted for unlawful marijuana use, notwithstanding that he or she is allowed to smoke lawfully-dispensed medical marijuana at other locations.
Although a qualifying patient who smokes at a prohibited location may properly be charged and prosecuted for using marijuana in violation of subsection (b) of N.J.S.A. 2C:35-10, he or she may still be able to successfully assert a CUMMA affirmative defense if he or she were also to be charged with the actual or constructive possession of marijuana in violation of subsection (a) of N.J.S.A. 2C:35-l 0. To the extent that the CUMMA affirmative defense may apply to the unconsumed medical marijuana present at the prohibited location, that marijuana or associated paraphernalia should not be treated as contraband per se, and, pursuant to the general policy set forth in these Guidelines, a police officer should ordinarily refrain from seizing such medical marijuana or paraphernalia.
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