COUNSEL'S COLUMN

By Frank Gennaro
Deputy Attorney General
New Jersey Division of Criminal Justice

ATLANTIC CITY NEEDLE EXCHANGE PROGRAM STRUCK DOWN

In June of 2004, the City Council of Atlantic City enacted an ordinance which established a hypodermic needle exchange program. The program was intended to reduce the spread of HIV and other blood-borne diseases, and would have permitted municipal officials to distribute sterile hypodermic needles to drug addicts, to be used to inject controlled dangerous substances.

The Atlantic County Prosecutor brought a legal action to stop the ordinance from being implemented. The Prosecutor argued that the needle exchange ordinance violated narcotics provisions of the Code of Criminal Justice. The trial Court ruled in favor of the Prosecutor, and the City appealed.

The Appellate Division affirmed the trial Court’s ruling, striking down the Atlantic City ordinance. On appeal, the City argued that the drug paraphernalia statute (N,J,S,A, 2C:36-6) contains an exemption which would permit needle distributions by a “governmental agency.”

The Court rejected this argument, and ruled that the ordinance was preempted by the Code of Criminal Justice. The Court held that, because the injection of illegal controlled dangerous substances is a crime; therefore a person who aids another in the injection of a controlled dangerous substance would be liable as an accomplice. In this regard, the Court found that, even if the City is considered to be a “governmental agency,” entitled to the exemption set forth in N.J.S.A. 2C:36-6, the ordinance would still violated the law. The Court reasoned that if a person exempted by the statute, such as a doctor or pharmacist, distributed hypodermic needles with the knowledge that they were to be used by drug addicts, that person would be chargeable as an accomplice to the offense of illegal use of CDS. The Court ruled that only the Legislature can provide the type of exemption from the drug paraphernalia statute sought by the City.

This decision has forestalled needle exchange in New Jersey for a time. Still pending in the Appellate Division is an appeal involving Governor McGreevey’s Executive Order permitting needle exchange. Needle exchange program bills have been proposed in the Legislature, and, no doubt, the upcoming legislative session will bring further such proposals.