Drug Crimes

Last updated on October 13, 2023

Is Possession of Mushrooms a Felony in New Jersey?

Laws concerning low-level drugs have been changing around our country over the past few years. Some drug laws are in a state of flux in some areas of the country, with several states reconsidering outdated drug classifications. Much of this is in response to how ineffective these drug usage and drug trafficking laws have been, and how these drug offense charges have the ability to seriously upend an offender’s life.

While hallucinogenic mushrooms are still considered Schedule 1 drugs in New Jersey, possession of small amounts has been reclassified. Now, instead of being charged with possession of a controlled substance, if you have been found with one ounce or less of these mushrooms, the most stringent penalty will be six months in jail and a maximum fine of $1,000 under the new classification. Before you make any decisions, it is important to speak with a New Jersey drug crimes lawyer. At Lustberg Law Offices, our lawyers can provide you with the legal guidance regarding mushroom possession in New Jersey. Whether it’s a felony or not, understanding your rights and potential consequences is crucial. Contact us today at (201) 880-5311 to protect your rights and explore your legal options.

The Psychoactive Nature of Hallucinogenic Mushrooms

The federal government first banned “psychedelic” mushrooms back in 1970 as part of the nation’s efforts to stop recreational drug use. But since the Nixon-era “war on drugs,” much of the nation’s response has been ineffective and expensive, often targeting the lowest-level offenders.

Hallucinogenic mushrooms contain a compound called psilocybin. This compound has psychoactive effects and has been considered a Schedule I drug under the Controlled Substances Act. But like other cases of low-level psychoactive substances, New Jersey still groups them with other more harmful drugs such as heroin and cocaine which carry a much higher risk for abuse.

Are Mushrooms Legal?

In February 2021, New Jersey Governor Phil Murphy approved a legislation authored by state Sen. Nicholas Scutari, which lightened the penalties for psilocybin possession, the primary compound in magic mushrooms. This shift in policy changed the categorization of psilocybin possession from a third-degree crime to a disorderly-persons offense within New Jersey. Under this legislation, holding a small quantity can lead to a fine of up to $1,000 and a prison sentence of a maximum of six months.

This piece of legislation is pushing to legalize this psychedelic substance for adult use in treating conditions like depression and anxiety within the state. The bill aims to create a structured, legal, and therapeutic system for the use of psilocybin in addressing mental health.

Titled the Psilocybin Behavioral Health Access and Services Act or S2934, the legislation proposes that adults 21 and older in New Jersey would be allowed to “have, store, consume, breathe in, process, transport, give away, or share up to four grams or less of psilocybin.”

Moreover, the bill permits adults to cultivate, nurture, and prepare plants or fungi that produce psilocybin for individual consumption, provided it remains inaccessible to those under 21.

If you find yourself facing legal concerns related to mushroom possession, it is crucial to seek assistance with a New Jersey drug crimes lawyer. At Lustberg Law Offices, our lawyers have the knowledge and resources necessary to protect your rights and build a strong defense. Whether you’re dealing with psilocybin mushrooms or other substances, we’re committed to helping you understand the legal implications and advocating for your best interests. Contact us today to schedule a consultation and take the first step towards resolving your case.

NJ Mushroom Decriminalization

New Jersey has joined the movement of US states decriminalizing mushrooms, which contain the psychedelic compound psilocybin. New Jersey Governor Phil Murphy has approved a bill that reduces the penalty for possessing up to one ounce of the mushrooms, with a maximum $1,000 fine or a six-month jail sentence. Psilocybin was previously listed with drugs such as heroin and cocaine resulting in penalties of up to five years in prison and a $25,000 fine. Possession of psilocybin is now recategorized from a third-degree offense to a disorderly person’s offense.

New Jersey drug crimes attorney

This decision follows Oregon’s choice to become the first US state to decriminalize psilocybin mushrooms in November 2020, with the drug now completely legalized for medicinal use. Although psilocybin has been demonstrated to be effective in treating various mental health conditions such as anxiety, depression, and addiction, it remains illegal under federal law in the US.

Decriminalizing psilocybin is part of the wider movement to reform drug laws in the US. Several states have already legalized marijuana for both medical and recreational use, and others are expected to follow. Studies into the therapeutic potential of psychedelics, including psilocybin and LSD, are also ongoing, with a focus on treating mental health conditions.

If it Has Been Reclassified, Is Possession of Mushrooms Still a Criminal Offense?

In recent years, some states and cities around the country have decriminalized these mushrooms, making them a low priority for law enforcement. In New Jersey, although possessing and selling hallucinogenic mushrooms is still a criminal offense, as of February 2021, possession of less than an ounce of these mushrooms has been reclassified as a disorderly person’s offense. Now, someone caught with less than one ounce of these mushrooms will face up to six months in jail and/or a fine of up to $1,000 compared to previous much more serious penalties.

Possession of over an ounce of these mushrooms is still considered a serious drug offense. Possession of a Schedule I controlled dangerous substance, of which mushrooms are still considered, can be charged and prosecuted as a third-degree offense. If you are found with over an ounce of these mushrooms, you can still face up to 5 years in prison and fines of up to $35,000. Furthermore, you will have a criminal record that may follow you for the rest of your life.

What is Considered Hallucinogenic Mushroom Possession?

Simple possession in New Jersey under N.J.S.A. § 2C:35-10 is simply having the mushrooms on you. Under possession laws, it is unlawful to

  • Obtain or possess them
  • To use or be under the influence of them
  • Fail to turn those in your possession over to a law enforcement officer.

If you were in possession of these mushrooms with the intent to sell them to someone else or even just share them, you may face higher penalties for distribution.

There are two ways to prove the “possession” element. One is by proving “actual” or constructive possession. It is easy to prove actual possession if drugs are found on your body, in your pockets, or in your mouth. This type of charge can be very difficult to overcome since the case is so biased against you. However, in cases of “constructive”, possession, the possession element could be challenged. Constructive possession is when you claim to have something, but the item is not in your possession at the time of the arrest. To prove you were in constructive possession of a drug the police must show that you knew that it existed and were able to control it. If drugs were found in shared areas, were hidden, or locked away, the law enforcement people may be unable to prove that you had the drugs in your possession at all.

Due to the way that the statute was written, police can always prove possession if they show evidence of drug use. Drug use is also a violation of N.J.S.A. § 2C:35-10. You must be physically present to possess drugs.

Will the Amount of Mushrooms in Possession Matter?

There are no steps-up provisions for heroin possession, but a judge will likely impose more severe sanctions if the drug is heavier than the minimum. If the amount of mushrooms possessed is sufficient, the police may also charge the defendant with Possession with Intent To Distribute. This has more severe consequences.

How will My NJ Mushroom Possession Conviction Affect my Immigration Status?

This is not an easy question. There are many consequences depending on your status and the charges you face. A conviction under N.J.S.A. is generally deportation. 2C:35-5 is extremely dangerous for your immigration status and could result in deportation, or ineligibility to citizenship. Please click here for more information about the immigration implications of an NJ magic mushrooms possession charge.

If you have been arrested and charged with possession of hallucinogenic mushrooms in New Jersey, you should get legal representation as soon as possible. At Lustberg Law Offices, our experienced New Jersey criminal defense lawyers understand the new classification and how it can make a big difference in how you are charged, prosecuted, and penalized. Call us at (201) 880-5311 or contact us online to schedule a no-cost consultation.

Topic Details
Psychoactive Nature of Hallucinogenic Mushrooms Hallucinogenic mushrooms contain psilocybin, a psychoactive compound classified as Schedule I.
NJ Mushroom Decriminalization NJ decriminalized possession up to one ounce; penalties reduced to max $1,000 fine or 6-month jail, reclassified to disorderly person’s offense.
Status of Possession Possession/sale remains criminal; <1oz possession now disorderly person's offense.
Criteria for Possession Illegal under N.J.S.A. § 2C:35-10: obtain, possess, use, influence, or not surrender mushrooms to law enforcement.
Impact of Amount Larger amounts may lead to Possession with Intent to Distribute charges.
Immigration Status Conviction under N.J.S.A. § 2C:35-5 can impact immigration, potentially leading to deportation or citizenship ineligibility.

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