2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Monday, November 13, 2017


An inmate serving a sentence for marijuana trafficking, filed a petition with the Director of the Division of Consumer Affairs seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV. The Director denied the petition, interpreting N.J.S.A. 24:21-3(c) as requiring that New Jersey to adhere to the federal Controlled Substances Act, 21 U.S.C.A. § 812(c), which lists marijuana as a Schedule I substance. 
The court granted leave to appear as amicus curiae to L.B. on behalf of G.B., a minor child who takes medical marijuana to control epileptic seizures. When G.B.'s parents requested that the nurse at G.B.'s special education school administer her prescribed dosage of medical marijuana, the school refused citing marijuana's Schedule I classification which prohibits it on school grounds. G.B. was required to leave school at lunchtime to receive her medication and did not return to school, causing her to miss a half day of school each day. Amicus argued that the continued scheduling of marijuana as a Schedule I narcotic frustrates the purposes of the New Jersey Compassionate Use Medical Marijuana Act N.J.S.A. 24:6I-1 to 24:6I-16 and denies her the constitutionally protected right to a free and appropriate education. 
The court found the Director erred in concluding that he lacked the authority to reclassify marijuana without a change in existing federal law and remanded the matter for a determination of whether marijuana has a high potential for abuse and, if so, whether that factor justifies continued classification as a Schedule I substance in the face of compelling evidence of accepted medical use and impediments to its legal use which may be attributable to its classification. 

Judge Espinosa dissents, concluding that because the plain language of N.J.S.A. 24:21-3(c) requires the Director to adhere to federal schedules, his denial of the petition to remove marijuana from Schedule I was not arbitrary, capricious or unreasonable and should be affirmed. In addition, a review of extrinsic evidence, including New Jersey's legislative scheme and the federal Controlled Substances Act, 21 U.S.C.A. § 801 to § 904, support the conclusion that the Director lacks the discretion to change the classification of a controlled dangerous substance under the circumstances here.