Air Fresheners as Probable Cause? A New Jersey Lawyer Talks Garden State Cannabis Arrests

Published on June 16, 2017 · Last updated July 28, 2020

The East Coast’s cannabis progression has been steadily picking up steam; Maine and Massachusetts voted to legalize cannabis for adult use in November 2016, joining Washington DC as the only three locations in the east so far to fully legalize. Eight other states in that region have also legalized some form of medical marijuana.

However, the curious case of New Jersey is somewhat of an anomaly. On one hand, the state has a medical marijuana program and active dispensaries. On the other hand, its cannabis laws are so restrictive that there are still tens of thousands of annual arrests for the possession of even minuscule amounts of cannabis. In 2014 alone, the state saw nearly 25,000 cannabis possession arrests.

Leafly got a chance to chat with Carmine Villani, a Point Pleasant-based criminal defense attorney specializing in cannabis cases, to discuss cannabis in New Jersey, the threat of arrest for tourists, and what your options are when faced with a cannabis charge in the Garden State.

Leafly: What is the most common charge you see for cannabis?

Carmine Villani: Honestly, the most common charge is the possession of under 50 grams. Anything from zero to 50 grams, whether it’s half a joint or shake on my shirt. It’s ridiculous. Even the most minimal amount can lead to a disorderly possession offense, a misdemeanor penalty. You’re looking at six months in jail or a $1,000 fine, and you could lose your license if you’re caught with marijuana in a vehicle.

“I hear all the time, ‘But it was only a joint,’ or ‘It was only shake.’ It doesn’t matter.”

In the standard case. If anyone’s driving, it leads to a search and anything that’s found is your evidence. If your brake light is out, or if you’ve got an air freshener–police are often profiling vehicles that have air fresheners hanging from their rearview mirror. An air freshener is considered an obstruction of the rearview, plus officers will ask, “Why do you have an air freshener? What smells are you trying to hide?” Most cases I see involve a car.

Do you have any advice for those who are facing cannabis charges?

What do you do for a living? If you’re in a position where you work with children, you could be charged with a disqualifying event and you’ll never work with children again.

What happens most of the time is a diversion program known as a conditional discharge–you get out of jail free of charge–but you can apply for this only if you have never been in trouble before. You’ll pay a fine and be on probation for one year with random urine tests during that year.

How long does weed stay in your system?

If you use up your conditional discharge on cannabis and you’ve got a more serious problem–for example, if you have a heroin problem, which is a scourge in New Jersey–well, gee, it might not be the best use of your conditional discharge. If you use up your conditional discharge at 18, and then get a heroin charge at 23, you could be facing additional criminal charges–1 to 5 years in a pretrial intervention program related to a felony.

“Police are often profiling vehicles that have air fresheners hanging from their rearview mirror.”

A conviction is what really matters if you’re a schoolteacher, which is great if you’re a first time offender, perfect for a conditional discharge.

However, some would rather take the charge, pay the fine and not do one year of probation. They’d rather move on with their life and not pee in a cup for a year. The consequences are substantial. If you have a charge for under 50 grams of cannabis, you can’t visit certain countries in the Middle East. And we’re talking just for some residue in a pipe, scraped out and tested.

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How do you think Governor Chris Christie has affected cannabis in New Jersey?

I really don’t know if Chris Christie has done anything to make things better or worse. I don’t really see anyone with a medical marijuana card. They’re like unicorns out here! You basically have to have cancer, be at the end of your life, and wasting away to qualify.

I don’t know where Christie stands on that, but I do know he was instrumental in the way the medical marijuana law was drafted, and it’s very very limited.

Have there been any cannabis cases in particular that stood out to you?

They’re all so similar, and that’s the shame of it. They’re all very normal people, and they all almost always face two charges–possession of under 50 grams of marijuana and possession of paraphernalia.

In the mechanics of the case, they have to prove that it’s marijuana, which means the chain of custody is reviewed: Did they have the right to conduct a search? Did the police have the right to be there?

Now, you have to prove to me that it’s marijuana. There’s a minimal visual test or, more likely, they’ll do a Duquenois-Levine Test, where they drop the sample in a solution and if it turns purple, that means it’s a derivative of marijuana.

Here’s the crazy part, though. It can take four to six months to come back with that result.

One woman was supposed to start a job in September, but got arrested in August. Her case didn’t get resolved until March.

A lot of people just want to bite the bullet. So we say we need the results within 60 days; draw a line in the sand and hope that the results don’t come back in time, with the volume of tests submitted.

Do you think legalization will be coming to New Jersey any time soon?

Well, with the governor’s race coming into the mix, maybe we’ll see some decriminalization. On the flip side, I don’t know what will happen if they decriminalize. It’s no longer a possession charge; now it’s driving under the influence and whether THC is in your system. The standard field sobriety tests were designed in the early 70s and were related to alcohol.

“I don’t really see anyone with a medical marijuana card. They’re like unicorns out here! You basically have to have cancer, be at the end of your life, and wasting away to qualify.”

There are no studies that say the standard field sobriety tests apply to marijuana. If you’re high, you can still lift one leg and walk a straight line.

If they find marijuana and ask questions, people think that if they tell the truth, the police will somehow give them a break. This is not true. It says it right there in your Miranda Rights–they should drop the ‘can’–it will be used against you in a court of law.

Imagine telling this to a client from out of state.

The PNC Bank Arts Center on the Garden State Parkway is a popular venue and concert hall. My phone will be blowing up the day after a young person’s concert because the parking lot also houses the state police barracks. They smoke a joint and get arrested in the parking lot for the residue of a joint and they just can’t believe it.

Out-of-state clients aren’t as scared shitless–they’re from out of town and they don’t even realize they’re in a parking lot right next to a police barrack.

I hear all the time, “But it was only a joint,” or “It was only shake.” It doesn’t matter. The car is where you are most likely to be arrested, so be cautious and treat it seriously.

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Lisa Rough
Lisa Rough
Lisa is a former associate editor at Leafly, where she specialized in legislative cannabis policy and industry topics.
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