Arthur N. D'Italia, J.s.c.
Defendants in this case are activists in a movement which seeks to promote the distribution of clean hypodermic needles to intravenous drug users in exchange for dirty needles. The stated goal of this exercise is to help stem the spread of the human immuno-deficiency virus (HIV) that causes AIDS (Acquired Immuno-Deficiency Syndrome). Defendants sought to distribute needles to intravenous drug users in downtown Jersey City on the morning of April 19, 1990. They positioned themselves at a table at a public intersection prepared to exchange clean needles in return for dirty ones which would be
placed in biohazardous waste containers. Defendants intended to distribute with each clean needle a packet containing bleach and written instructions on how to clean drug paraphernalia. Defendants publicized their intended activity so as to test whether the Jersey City police would interfere with the exchange program, which on its fact constitutes a disorderly persons offense under N.J.S.A. 2C:36-6, or would permit their activity to go unchallenged. Defendants were arrested and charged with the disorderly persons offense.
The matter is before the court on a motion to dismiss pursuant to N.J.S.A. 2C:2-11. That statute provides in pertinent part that:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant's circumstances, it finds that the defendant's conduct . . .
(b) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(c) presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. . . .
Defendants are charged with violating N.J.S.A. 2C:36-6. It provides:
Except as otherwise provided by law, it shall be unlawful for a person to have under his control or possess with intent to use a hypodermic syringe, hypodermic needle, or any other instrument adapted for the use of a controlled dangerous substance . . . or to sell, furnish or give to any person such syringe, needle or instrument. . . .
Defendants argue that their conduct did not actually cause or threaten the harm sought to be prevented by the statute barring possession or distribution of hypodermic needles. They argue further that their needle exchange activity constitutes an extenuating circumstance which could not reasonably have been envisaged by the Legislature in defining the offense.
At the heart of defendants' motion is their contention that exchanging clean needles for ones possibly infected with HIV is a significant method of combatting the spread of AIDS while
contributing minimally, if at all, to the social ills associated with illegal drug use. Defendants point out that drug users represent an extremely high-risk population for the transmission of HIV. Intravenous drug users employ hypodermic syringes and needles to inject themselves with the drug of choice. This equipment is not generally available because of the law banning possession for use in connection with controlled dangerous substances. As a consequence, users share needles. Sometimes these needles are provided by drug dealers. This sharing entails an extremely high risk of transmitting the AIDS virus from an HIV positive user to one not previously infected if ...