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New Jersey Police Can’t Be Tested For Marijuana In Most Cases, State Attorney General Says



New Jersey’s attorney general has released revised drug testing policies for law enforcement agencies, generally barring screenings for marijuana in most circumstances following the state’s enactment of legalization.

Under the new guidance issued last week, police officers can still be tested for THC if there’s reasonable suspicion that they used cannabis during work hours, or if there’s a federal requirement. But because New Jersey legalized adult-use marijuana, it became “necessary to revise this policy,” the new memo says.

“Agencies must undertake drug testing when there is reasonable suspicion to believe a law enforcement officer is engaged in the illegal use of a controlled dangerous substance, or is under the influence of a controlled dangerous substance, including unregulated marijuana, or cannabis during work hours.”

It’s unclear how the agencies would draw that distinction, however.

The top prosecutor’s guidance further explains that law enforcement officers must be tested if there’s “reasonable suspicion of the officer’s use of a cannabis item while engaged in the performance of the officer’s duties” and if there’s a “finding of observable signs of intoxication related to the use of a cannabis item while engaged in the performance of the officer’s duties.”

Drug screening can include the detection of cannabis metabolites if the officer is part of a federal task force, holds a federally regulated license that requires testing such as those for pilots or if they’re required to be screened “by the terms of a federal contract or federal grant.”

There was some pushback last year after Attorney General Matthew Platkin (D) released an earlier memo asserting that the legalization of marijuana in New Jersey meant agencies couldn’t penalize officers for off-duty cannabis use.

Some lawmakers like Assembly Speaker Craig Coughlin (D) signaled that they would seek to pass legislation to address the issue, while others like Senate President Nick Scutari (D) said that they wanted to preserve the off-duty carve-out.

Gov. Phil Murphy (D), for his part, said that he was “open-minded” about a potential policy change to revise the rules for police officers who use marijuana outside of work hours.

The New Jersey State Policemen’s Benevolent Association said in a Facebook post last week that “after months of back and forth, we finally have gotten clarity” on cannabis testing for officers.

“The new policy reflects significant changes to the cannabis/marijuana testing procedures.,” the group said in the post, which was previously noted by The Asbury Park Press. “These rule changes provide officers with clear guidelines and protection.”

Several GOP senators, who sent a letter to the state’s top prosecutor last year expressing concerns about the law enforcement marijuana exemption, cited federal policy as a reason the state should continue to prohibit cops from consuming cannabis.

But what seemed to be getting lost in the discussion is that the federal law that generally bans consumers of cannabis and other illegal drugs from accessing firearms also contains an exemption that would seem to apply to police.

Civilians are required to fill out a federal background check before they purchase a gun, and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has made clear that checking “yes” on a question about marijuana use renders a person ineligible for the sale. The penalty for lying is up to five years of incarceration.

But a different standard applies when firearms are distributed by government agencies.

Here’s the federal policy for people seeking to purchase or possess firearms with respect to marijuana: 

“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…is an unlawful user of or addicted to any controlled substance…”

“It shall be unlawful for any person…who is an unlawful user of or addicted to any controlled substance…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

And here’s the relevant exception that could apply to law enforcement: 

“The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”

In a related development, a federal judge recently declared that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, saying that the federal government’s justification for upholding the law is “concerning.”

This decision came as the ban continues to be challenged in a separate federal court in a lawsuit that was raised by former Florida Agriculture Commissioner Nikki Fried (D) and several medical cannabis patients.

Back in New Jersey, a Senate committee approved a pair of bills last month that would allow licensed marijuana businesses to deduct certain expenses on their state tax returns, a partial remedy as the industry continues to be blocked from making federal deductions under Internal Revenue Service (IRS) code known as 280E.

Also last month, regulators issued proposed rules for marijuana consumption facilities.

The governor of New Jersey touted the state’s growing marijuana industry during his State of the State address last month, emphasizing work that’s being done to ensure that the market is equitable and right the wrongs of the drug war.

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Kyle Jaeger is Marijuana Moment's Sacramento-based managing editor. His work has also appeared in High Times, VICE and attn.


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