Can you smoke up in New Jersey? Cops say no, not yet.

New Jerseyans voted two-to-one in November to legalize recreational cannabis for people 21 and over. The constitutional amendment was supposed to take effect January 1. So, is it okay to light up?

“Right now – no,” said Captain Keith Kimkowski of the Vernon Township Police Department. “We have to wait for the legislation to come out. We’re waiting for guidance because it’s going against how we’ve been policing for years.”

The passage of a pair of bills – one to legalize and establish an adult-use marijuana industry, the other to decriminalize up to six ounces of possession – will make New Jersey the first state in the mid-Atlantic where recreational marijuana will be sold and taxed, similar to alcohol. But as of this writing, those bills are now three weeks overdue, as lawmakers duke it out with the governor over thorny questions like penalties for underage marijuana use.

In the meantime, you can still get arrested for low-level marijuana offenses that were supposed to be legal by now. And across the Garden State, from Newark to Sparta, people are.

“With Covid and everything else going on right now, we’ve seen a downward swing with our contacts in general, as you can imagine,” said Kimkowski. But make no mistake, even driving around with weed in your glove compartment can still get you busted. “It’s a case-by-case basis,” he said.

On January 5, for instance, a Sparta cop stopped a Manhattan man in a blue Chevy for doing 88 in a 55, heading north on Route 15. Catching a whiff of marijuana, he searched the car – a scenario familiar to anyone who scans local police blotters. The search turned up a menagerie of contraband in small amounts – “several marijuana cigarettes, traces of cocaine, a small amount of methamphetamine, ecstasy pills, a hallucinogenic mushroom, and drug paraphernalia” – that led to the 52-year-old being hauled in and charged with possession of narcotics, possession of marijuana, controlled dangerous substances in a motor vehicle, possession of drug paraphernalia, on top of speeding, careless driving, failure to exhibit documents, and windshield obstruction.

The Byram police made a similar arrest on Jan. 17 of a 24-year-old driver from Brooklyn. The marijuana smell in his car led to his arrest not only for speeding, the cause of the original stop, but for possession of under 50 grams of marijuana and drug paraphernalia, along with fictitious license plates, unregistered motor vehicle, suspended license, and failure to wear a seatbelt.

The pot-related charges will probably be thrown out once the new legislation finally goes through. “Fairness demands that we suspect prosecution of marijuana possession-related cases while we await direction from the Legislature,” said New Jersey Attorney General Gurbir Grewal in November, ordering simple possession charges adjourned until at least January 25. “It simply does not make sense or serve justice to proceed with prosecutions on charges that may be foreclosed soon.”

Still, that’s far from a get-out-of-jail free card for the lead-footed drivers, for whom the potent smell of marijuana justified a search that then opened a can of worms. The bill languishing in Trenton eliminates the odor of cannabis as a basis to initiate a search, but in the absence of the new law, police are still operating under the old one.

“We’ve been consistent. We’re still enforcing it,” said Sparta Police Lieutenant John Lamon. Until the new law comes down – which Lamon expects to happen by the end of January – his squad will be following the law on the books. “Right now we’re going to continue what we do, and see how it shakes out, and we’ll make the changes accordingly. You don’t want to become inconsistent – partial enforcement or for certain people.”

Under the old law, whose roots go back to the 1970 listing of marijuana as a Schedule I “most dangerous” substance, possession of 50 grams of marijuana or less is a “disorderly persons offense” punishable by up to six months in jail or a $1,000 fine. Possessing more than 50 grams is a crime that can get you locked up for up to a year and a half or fined up to $25,000, not to mention a criminal record. Getting caught with a single joint can have devastating life consequences, like getting fired, losing immigration status or financial aid, and having your driver’s license suspended.

A gray area no one wants to be in

In this strange period of legal limbo, Grewal reminded police they have “broad discretion” in how they deal with low-level marijuana offenders. But what was intended to be an olive branch can actually turn into a double-edged sword, Lamon explained.

“It puts everybody in a gray area, and it’s probably not a good area to be in,” said Lamon, a veteran of the Sparta force who has also served as an undercover narcotics officer. If an officer decides to be lenient occasionally, “Then it becomes, well why would you enforce it for this person but not that person? Now it becomes, you arrested my client, but you didn’t arrest the guy before him.”

Far from being a thing of the past, pot-related arrests in some parts of the Garden State may even be up in the new year. “We have seen some data emerge recently that does show that even in the first week of 2021, marijuana arrests were in fact increased in Newark,” said Sarah Fajardo, policy director of the American Civil Liberties Union of New Jersey. “We do suspect that arrests have continued across New Jersey since the vote in November, and of course this is extremely concerning,” she said, especially since minority communities bear the brunt of the policing.

“Cannabis arrests predominantly and disparately impact Black New Jerseyans, Black folks in New Jersey, at a rate of 3.45 to one,” said Fajardo – despite a similar rate of use across demographics.

In Sussex County, Black people get busted for possession at 6.4 times the rate of whites, according to statistics in the ACLU’s 2020 report, “A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform.”

Cops’ concern: driving while stoned

With the new legislation imminent, a major concern of suburban police is how to deal with people they pull over and suspect of driving stoned.

“Being a smaller department up here in Sussex, we deal more with motor vehicles,” said Lamon. “If a vehicle is stopped: is this person smoking in the car? Are they under the influence? That’s sort of the stuff we’re hoping they give us some guidance on, because right now there’s not a whole lot mentioned.”

Kimkowski, the Vernon police captain, said, “It’s going to be an issue. You’re going to see people driving around stoned, and things are going to happen.” He pointed to the increase in traffic fatalities in Colorado after marijuana was legalized there. Driving under the influence of marijuana is illegal in all 50 states, but determining whether someone is actively high behind the wheel is not straightforward like it is with alcohol. To see if you’re drunk, police have an effective field test and a Breathalyzer. To see if you’re high, Kimkowksi jokingly suggests the Dorito test, where you drop a bag of chips on the ground and see if the driver goes for it.

“I never thought this was going to happen in my lifetime,” said Kimkowski. “I’m a product of the ‘80s, we had the whole War on Drugs.”

Confused? So are the cops.

If you thought you could light up in New Jersey as of January 1, you’re in good company. Reading the headlines or seeing the news on TV, that would be a reasonable assumption to make, said Lamon.

Even after the new law comes down, the murky questions aren’t likely to clear up overnight.

“There’s still going to be that confusion,” he said. “Now it’s going to be: is what I have legal?”

Heck, he’s confused, too. After reading through a 50-page proposal of the legalization bill, “there’s more questions now than there are answers,” said Lamon.

If you’ve got weed in your shoe that you bought on the black market and not the dispensary, how will a cop know whether it’s the legal stuff? If you have seven ounces, do the first six ounces not count? Then there’s the question of who’s actually going to shell out $100 an ounce for legal cannabis with all its taxes, when they could get the same ounce from their dealer for $75.

“I just don’t get how it’s going to work out,” said Lamon. “We sort of have to let itself shake it out.”