Posts Tagged ‘marijuana’
Marijuana laws in the U.S. are so complex, so contradictory, at at some times so baffling, that lawyers love to write about the subject. Since I started my blog 3 years ago, the subject of marijuana laws has been a frequent topic. We have discussed the “green tongue” phenomenon, the science of “marijuana dui“, the taxation, what not to say when you are stopped, why it sucks to go to court for marijuana possession, what to do if you are caught at the border with marijuana, and attempts to reform the laws, and I-502. Geesh, thats kind of a lot. But I am not the only one. Here is a list of 10 of the best marijuana law-bloggers in the 50 states. They have great stuff, so go check out their sites. (They are in no particular order – they are all good.)
1. New Jersey Marijuana Blog. Jef Henninger takes on New Jersey marijuana laws and explains the fight to more narrowly construe the state’s school zone enhancements, and the battle to prohibit “expert” witnesses from telling the jury that their “expert” opinion is that the defendant is guilty.
2. Rose Law Group Blog. The staff at Rose Law Group attempts to make sense of the byzantine legal structure of medical marijuana in Arizona while the state wrangles with threats from the federal government.
3. L.A.’s Dopest Attorney. Fresh out of Harvard, lawyer Allison Margolin shared her views on the drug war, pushy DA’s, and various celebrities. We are still waiting for her to update her blog though.
4. Rose Law Texas. Jeremy Rosenthal offers thoughtful, in depth, legal explanations on how marijuana laws work in Texas. When several people are in a car, and marijuana is on the floor, it is always a gray area as to who “possesses” it, and Jeremy has a good post on that subject.
5. Philadelphia Criminal Law Blog. Attorney Brian Zeiger has a nice collection of posts on marijuana in a question-and-answer format, including the question all lawyers get about the defendant who skipped town on a pot charge, and then needs advice on what to do.
6. Paul C. Youngs Blog. Paul has blogged on the efforts by the IRS to remove any business expenses as tax deductible. Additionally, he has commented on the fairly liberal marijuana policies of Ann Arbor Michigan compared to the rest of the state. Sound like Seattle anyone?
7. Sammis Law Blog. The Sammis law firm covers the efforts toward decriminalization of medical marijuana in Florida. A 3/5th margin of the legislature is required to get the the measure on the ballot. Polls show broad support for medical marijuana, and Florida might be joining the 17 other states in the US that recognize it.
8. The Marijuana Lawyer Blog. This blog is written by the Law Office of Glew and Kim of California. They have written lately of the efforts by state governors to have the DEA re-classify marijuana from being a Schedule I to a Schedule II drug, thus permitting the drug for medicinal purposes.
9. Criminal Attorney St Petersburg Blog. Attorney Melinda Morris takes a look at criminal issues in Florida including a trend among teens in the Tampa Bay area to adorn themselves with the hose of a water pipe in the form of a bracelet.
10. Ambrose Law Group Blog. Attorneys from this law firm tackle the subject of canine “sniff” searches, the disturbing trends on marijuana arrests, and the loss of housing subsidies by medical cannabis patients.
What are your favorite blogs? Let me know what I have missed, and maybe I will include them in 2013.
Back on June 3, 2010, I warned about the possible (mis)uses of inexpensive drone technology and how such gadgets might eventually be harnessed for civilian law enforcement purposes, possibly spying on a pot dealer’s back yard. Turns out I was right. Well, not about the pot, at least not yet.
A scary report in the Los Angeles Times told of how local police in North Dakota used a Predator B drone to apprehend three men; the first known arrests of U.S. citizens with help from a Predator. The incident occurred when the suspects refused to turn over several cows that had wandered on to their property. Police showed up, the suspects brandished some shotguns and a pretty tense standoff ensued. The police left and got themselves a warrant and then called in a Predator drone to fly over the suspect’s land, hovering for four hours, transmitting video and thermal imaging all the while. The next day, police called the drone back for more spying and finally made their move when the drone determined the men were unarmed.
The Predator drones used in this incident are based at the Grand Forks Air Force Base, located in Emerado, North Dakota, and are owned and operated by the U.S. Customs and Border Protection agency. Though the FBI, DEA and a plethora of other federal agencies have used Predator drones on U.S. soil for years for surveillance purposes, this is the first reported incident where local police forces have made use of a Predator drone to watch and then apprehend suspects.
The Los Angeles Times quotes a retired U.S. General who acknowledges that drones are being used “in many areas around the country, not only for federal operators, but also for state and local law enforcement.” The Customs and Border Protection agency responsible for the apprehension in the North Dakota incident claim they have a legal authorization to use the drones in such a way. Officials insist that they indicated in their budget requests to Congress that one purpose of purchasing the Predators was for “interior law enforcement support.”
Jane Harman – former Chair of the House Homeland Security Sub-Committee – insists that “no one ever discussed using Predators to help local police serve warrants or do other basic work.” The argument from Customs is that the drones can be used on U.S. soil for law enforcement purposes not because of a new law or regulation, nor because of any Congressional mandate or Executive Order, simply because they inserted the phrase “interior law enforcement support” into their purchase order.
This “interior law enforcement support” hasn’t been limited to North Dakota. A recent article out of Houston discussed the local law enforcement excitement following their acquisition of several drones: “It’s an exciting piece of equipment for us,” Chief Deputy of Montgomery County Sherriff’s Office said. The Sherriff’s Office recently used $300,000 from a federal homeland security grant to purchase a ShadowHawk drone which they hope to take to the air in the coming months. “We envision a lot of its uses primarily in the realm of public safety – looking at recovery of lost individuals and being able to utilize it for fire issues.” However, the police aren’t willing to say the drones might not do more in the future. McDaniel said that one day they may decide to equip the drones to carry nonlethal weapons such as Tasers or a bean-bag gun.
Kirsten Bokenkamp, spokeswoman for the Houston-based American Civil Liberties Union of Texas, warned of the danger the drones pose. She sensibly pointed out that there are not enough safeguards currently in place to protect citizens from unreasonable search and seizure. The complaint has so far fallen on deaf ears.
The manufacturers of these unmanned aircraft aren’t stopping to worry about such issues; instead they’re pushing forward and aggressively courting local law enforcement. In their 2011 Annual Report, AeroVironment, Inc. (AV), the nation’s leading manufacturer of small drones, hammers home the message that future growth lies in non-military applications of their product:
As we explore opportunities to develop new markets for our small UAS, such as border surveillance, law enforcement, first response and infrastructure monitoring, we expect further growth through the introduction of UAS technology to non-military applications once rules are established for their safe and effective operation in each country’s national airspace.
The company manufactures drones so small they can be transported in the trunk of a car and launched within minutes. A single police officer could deploy and monitor such a drone. These small drones could help usher in an “Era of Surveillance,” cheap and easy access to drones capable of hovering without detection for far longer than police helicopters.
The drones are vastly different and more powerful than standard police helicopters, the current method of choice for police surveillance from above. A great example is one new type of drone already in use by the U.S. military in Afghanistan – the Gorgon Stare, named after the Greek creature of legend whose unblinking eyes turned those who looked at it to stone. According to the Washington Post, it’s “able to scan an area the size of a small town” and is able to “use artificial intelligence [to] seek out and record certain kinds of suspicious activity.” One proud U.S. General went on to declare that the “Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what we’re looking at, and we can see everything.” No police helicopter that I’ve ever run across has such capabilities and the prospect of the Gorgon Stare making its way to America should give everyone cause for concern.
Beyond such domestic law enforcement missions, the drones are being used everywhere, silent eyes in the sky. According to a recent report, a group dedicated to the abolition of whale hunting, the Sea Shepherd Conservation Society, used an unmanned aircraft to follow suspected Japanese whalers. Drones are everywhere and apparently have unlimited potential uses. Monitoring by law enforcement, border patrol, whale watching, what’s next? Given new technology whole cities can be kept under surveillance by one tiny drone. Where does this end? Likely with your civil liberties being violated. It’s only a matter of time before a civilian law enforcement agency realizes that the contraptions would be great for checking up on marijuana growing operations. Launch a Predator and have it spend hours noiselessly circling farms, searching for telltale signs of pot production. Police can watch the stream from the comfort of their desk and swoop in after the drone has done the leg work.
The increasing use of drones for an ever-growing list of activities on U.S. soil is troubling and potentially dangerous. This is the definition of a slippery slope and little exists to stop the creep of this surveillance into every facet of law enforcement. Small marijuana growers will have to fear a silent watchman in the sky. Jane Harman, a military hawk by any definition, told the Los Angeles Times that she’s worried, saying “There is no question that this could become something that people will regret.” The use of drones by civilian law enforcement is important and the issue warrants some real attention by legislators and the public alike.
What do you think about this issue? How long before these drones are out looking for local marijuana gardens? As the wars wind down in Iraq and Afghanistan, will the defense contractors focus more on marketing these drones to your local police department? Share your thoughts in the comment section below.
When Proposition 19 was rejected by the voters of California in 2010, I figured that would pretty much mean the end of any legalization initiatives in Washington. However, a group called New Approach Washington was created, and they are now gathering signatures for a legalization initiative for the November ballot in 2012. The group is challenging the assumption that California is the only testing ground for such proposals. How can this possibly pass in Washington? The groups campaign director, attorney Alison Holcomb pretty much explained her thinking recently at Hempfest in Seattle. (See video below) She explains that there is polling data that supports the idea that such an initiative could win. “We are in this amazing moment of opportunity and also precariousness – there is no state (other than Washington) in the country that has a 55% …percent majority support for legalizing marijuana.” The problem that happened in California, Holcomb explains, is that right before the election, voters started to get scared by concerns like “stoned drivers”, and that moderate voters like centrist democrats, independents, and college-educated women, got nervous and abandoned their support. Holcomb explains: “With I-502 we spent a lot of time figuring out the most conservative, safe, secure sounding, marijuana legalization initiative that we can draft, and that will get us closest to what our public opinion data tells us people will hang on to and pass.” Her vision is that once we get such an initiative passed, that voters nationwide will “see that the sky doesn’t fall” and it will snowball to broader legalization and reforms throughout the U.S. Alison Holcomb explained:
We have to be as disciplined as possible, and pulling together, for example, the sponsers that signed on to it. Seattle city attorney Pete Holmes, former US Attorney John McKay, Rick Steeves, two medical doctors, two former Washington state bar presidents, a Washington state legislator. We need all the main stream messengers possible, because I think a legalization initiative that looks like it is coming from the choir, that looks like it is coming from the usual suspects, has a much harder row to hoe then one that is coming from a former US attorney, for example.
Is it ironic that she explains the need to gather “mainstream messengers” when she is speaking at Hempfest? I guess a little. I did note that you can hear the psychedelic rock of the festival playing in the background as she speaks.
I-502 has some detractors. Some question the proposed law’s provision that drivers (even medical patients) cannot driver a motor vehicle with a THC level over 5 nanograms per milliliter in their blood. Others question why drivers under 21 would be defined as committing DUI if they have THC in their system in any amount over .000. One such critic is Edward Agazarm, who started a Facebook page entitled Patients Against I-502. He sent a press release out last week excoriating the sponsors of I-502.” See article. But Alison Holcomb fired back in the comment section of that article accusing Edward Agazarm of being disingenuous in his criticisms of I-502. Agazarm is a professional signature-gatherer, and president of Citizen Solutions, Inc. Holcomb explained that Agazarm called her and pitched his company (to collect signatures) after she held a press conference in June. Holcomb writes: “When I told him we had already contracted with PCI Consultants, Inc., he insulted them and hung up on me. Now, Eddie’s spamming people with emails equating I-502 to rape.“ Agazarm isn’t the only critic. Steve Elliot, a writer for Tokeofthetown.com also is very critical of the proposed law.
I guess the million-dollar question is whether the initiative will pass. Can New Approach Washington gather enough moderate voters to off-set the critics? We will have to see.
One of my disappointments in observing the marijuana reform movement over the last 10 years is how egos and dollar signs seem to damage any real chance of reform. If I had the energy to collect 100,000 signatures, I would first seek a simple initiative removing the mandatory 24-hour jail time for all marijuana. I blogged about this here last year. As a practicing criminal defense lawyer, I do have concerns about I-502. I do worry that a driver under 21 could be convicted for DUI even for trace amounts of marijuana in his or her system. I also don’t believe that all drivers would necessarily be impaired at .05 nanograms per milliliter, as I addressed here. I do believe that the law would likely contribute to patient harassment, and an increase in unwarranted marijuana DUI charges. The “probable cause” that an officer would have to establish an arrest for marijuana DUI is often based on subjective and spurious observations, such as the “green tongue” phenomenon. I am already seeing an increase in marijuana DUI charges in my practice. The problem with enforcement with these new laws isn’t going to be in King County; the problem will be greatest in the hick towns of eastern Washington (where I live and practice law). In these towns the judges are often hostile to even medical marijuana, and the jury pools are conservative. The prosecutors are less susceptible to public pressure and bad publicity, and the defense lawyers often lack the specialized training and resources to defend such charges.
What do you think? Will you be signing the petition for I-502? Is it worth the restrictions on driving to get a marijuana reform law passed? Does I-502 ask for too much of a sacrifice from medical cannabis patients? Leave your thoughts in the comment section below.
Last month in Marijuana DUI (Part I), we discussed the extreme difficulty the scientific community has had in measuring the effects of marijuana on a person’s ability to drive. In part two of this blog post, we now turn to the practical difficulties criminal defense attorneys face in defending marijuana DUI charges.
Jury Selection on a Marijuana DUI Case
As a starting point, it is pretty much the experience of every defense lawyer that jurors tend to analogize marijuana to alcohol when it comes to DUI. As we discussed last month, there is no .08 limit for marijuana for THC. Consequently, jurors cannot convict a person based on a “number” alone. The criminal cases then turn when the prosecuting attorney proves that the person was actually impaired by the marijuana use. But how does marijuana impair a person’s ability to drive? Jurors have a wide range of views and experiences on this subject. Many jurors have never used marijuana, and so they are inclined to think of it in terms of drugs they have tried such as alcohol or prescription pills. Additionally, some jurors may have used marijuana in their youth and experienced a strong, somewhat hallucinatory experience as a first-time user. As one would imagine, asking prospective jurors about their experience with illegal drugs can be a little awkward. In urban environments such as Spokane or Seattle, jurors have a bit more anonymity during the jury selection process. However, in rural locales such as Okanogan County, Stevens County, Lincoln County, or Grant County, jurors are much more inclined to actually know one another. A defense lawyer or a prosecutor is just not going to get a straight answer out of the jury panel on the subject of marijuana use. Additionally, jurors in those rural counties such as Okanogan or Stevens County are going to have, on average, less accepting views toward marijuana use as a whole than say Seattle, for instance.
Marijuana Use and Observation of the Police
A prosecution for a marijuana DUI usually involves a police officer testifying about the ways he or she believed that a driver was effected by marijuana or THC. Jurors come to court knowing what a drunk person looks like, but often have no idea about the ways marijuana effects (or doesn’t effect) a person. Drug recognition experts (DRE’s) usually testify that a driver having consumed marijuana will have dilated pupils, red or bloodshot eyes, a lack of convergence of the eyes, an elevated pulse rate, elevated blood pressure, eyelid tremors, and disorientation. Compared to DUI involving alcohol, much less is taught about marijuana DUI investigation at the police academies. Officers seem to exchange tips on these investigations, and the techniques are frequently the subject of discussion in online police forums, see here, for example. Much of what the police study comes from the NHTSA manual Drugs and Human Performance. Unfortunately this volume is full of some pretty odd opinions and discredited techniques on such investigations. The manual mentions the “green tongue” phenomenon, or green coating on the tongue that a smoker of marijuana is “supposed” to have. Additionally, the manual opines that marijuana cigarettes “are often laced with adulterants including PCP or crack cocaine,” which is something I certainly don’t hear about “often” in my practice as a defense lawyer. Officers often describe looking closely with their flashlight for flakes of marijuana that might be on drivers’ laps, or remain on the tongue or mouth of a user after smoking a marijuana cigarette. Officers also seem to be of the opinion that hanging tree-shaped air-fresheners indicate that the driver has been using marijuana, according to above mentioned forum.
So as you can see, the current state of marijuana DUI enforcement leaves much to be desired. The practical effect of all this is that drivers are often at the mercy of the subjective opinions of the officer as to how he or she looked. These “evaluations” for marijuana intoxication are typically not video-recorded.
What do you think about how society should deal with this issue? Please share you thoughts, opinions, or experiences on this subject in the comment section below.
What is a “marijuana DUI”? What does it mean to be “under the influence” of marijuana? What is the safe level, and how is it measured? How are marijuana DUI’s defended?
Law enforcement in the last few years has really been pushing investigations and arrests over so-called “marijuana DUI’s.” In this two-part blog post we will look at how marijuana affects a person’s ability to drive, and more importantly, how it does not. Today we will discuss the scientific studies, and then we will come back in a couple of weeks to discuss more law, and how marijuana DUI court cases work for a defendant and the criminal defense lawyer. It is illegal under Washington State law RCW 46.61.502(1) to drive “under the influence” of any drug. ”Under the influence” is typically defined as when the person’s ability to drive “is affected to an appreciable degree.” There is no .08 equivalent for marijuana. In each case, a police officer must prove “under the influence.” Let’s turn to the subject of the scientific studies.
Professor Harry Klonoff Experiments in 1973
In 1973, Professor Harry Klonoff of the University of British Columbia decided to run experiments on the effects of marijuana on a person’s ability to drive a motor vehicle. Professor Klonoff provided marijuana cigarettes that contained .7 grams to his subjects, and he instructed them to smoke the marijuana by inhaling for 3 seconds, and holding it in their lungs for 15 seconds, and then exhaling and then resting for 15 seconds until the cigarette was completed. Since the test was “double blind,” he had half the group use a placebo form of marijuana. He then sent the test subjects out on a driving course, and then later sent the drivers out into rush hour traffic in the city of Vancouver, B.C. (Yeah, I know, it is hard to imagine the city of Spokane allowing such a test today). The only apparent safety precaution was that the vehicles used were “dual control,” so the cars had driver’s-education style brakes on the right-hand side where a professional observer sat.
The study was extremely complex with a number of different variables, methods of scoring, and scientific controls. Professor Klonoff concluded that for some drivers the use of marijuana hurt the individual’s driving ability. However, the study also found that some drivers performed better after smoking marijuana. Dr. Klonoff wrote:
It is evident that the smoking of marijuana by human subjects does have a detrimental effect on their driving skills and performance in a restricted driving area, and that this effect is even greater under normal conditions of driving on city streets. The effect of marijuana on driving is not uniform for all subjects, however, but it is in fact bidirectional; whether or not a significant decline occurs in driving ability is dependent both on the subject’s capacity to compensate and on the dose of marijuana. For those subjects who improved their performance, the explanation may lie in overcompensation and possibly the sedative effect of the drug.
The biggest takeaway from Dr. Klonoff’s study is that marijuana does not have a predictable negative effect on a person’s ability to drive. Consequently, it is very difficult for any principled expert to testify in a court of law that a person was affected by the marijuana in any certain way. If you want to look up the article at your local medical school library, the citation is: Klonoff H. Marijuana and Driving in Real-Life Situations. Science 1974;186(4161);317-24. Klonoff’s test pretty much carried the day in the scientific community until a similar test was run in Maastricht, Holland two decades later.
The Maastricht Studies of 1993
In 1993, the U.S. Department of Transportation sponsored a study done by the Institute of Human Psycho-pharmacology at the University of Limburg in Maastricht, Netherlands.
Like the Klonoff study, the Maastricht study was done by providing marijuana for the test subjects to smoke, and then monitoring their ability to drive. Doses were provided in the THC amounts of 0 (control group), 110, 200, and 300 ug/kg. The subjects then drove through a closed roadway and then a roadway with traffic present. As with the Klonoff study, vehicles with “redundant controls” were used as a safety precaution. In the executive summary of the published study, the scientists wrote:
This program of research has shown that marijuana, when taken alone, produces a moderate degree of driving impairment which is related to the consumed THC dose. The impairment manifests itself mainly in the ability to maintain a steady lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance, and will compensate where they can (for example) by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.
The scientists had hoped to determine whether it was possible to predict driving impairment by the levels of THC in the drivers’ blood. However, they concluded that the answer was “very clear” that this was not possible. They explained that some drivers were impaired with both high and low levels of THC, and conversely some drivers with high levels of THC in their blood performed quite well. For more details see: Robbe HW, O’Hanlon JF. Marijuana and actual driving performance. US Department of Transportation/National Highway Traffic Safety Administration November: 1-133 (1993). DOT HS 808 078. The study failed to provide clear guidance to the U.S. government on marijuana DUI policy.
The Grotenhermen Study of 2007
The last study to look at is the research report entitled “Developing Limits for Driving Under Cannabis” published in 2007 in the journal for the Society for the Study of Addiction. That study again tried to determine a limit for THC levels in a driver’s blood that would be similar to the .08 limit for alcohol DUI charges. The scientists compared a THC blood level of 4.2 ng/ml to driving with a blood alcohol level of .04. The study explains that the margin of error in testing is great with a confidence interval of 3.1 to 7.7. Due to such a large margin of error, the study suggests that a legal limit be set in the amount of 7 to 10mg/ml for blood. Rather than base the study on driving tests, this study based its conclusions on studies done on individuals who had had their blood tested after a crash.
The Challenge to Defense Lawyers
Many jurors have difficulty understanding the way marijuana affects the human driver. Jurors’ knowledge and experience with marijuana will vary significantly, and it can be awkward to ask about marijuana use during jury selection. Juror views on marijuana can vary sharply between metropolitan areas like Spokane, and more rural areas like Okanogan or Colville, Washington. Jurors usually try to analogize other drugs to alcohol, which jurors are more familiar with. However, the effects of marijuana are very different from alcohol. Criminal defense lawyers also have a steep learning curve in understanding the science of marijuana intoxication. A defense attorney should consider hiring or consulting with an independent toxicologist. Due to the complexity of the science of marijuana use, it is a challenge to all the participants of the criminal justice system. Because the science is so vague, the representatives from the Washington State Toxicology Lab usually testify about the ways THC is “likely” to affect an individual. The Washington state toxicologists typically base their testimony on the National Highway Traffic Safety Administration’s manual entitled “Drugs and Human Performance Fact Sheets.” That manual cautions “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.” In light of the difficulty in interpreting blood test results, marijuana DUI charges often come down to officer testimony and the field sobriety tests. We will discuss this aspect in part two of this blog post.
Here are 9 things you should know before you appear for your arraignment if you are charged with marijuana possession. As a lawyer, I sometimes see people come in on their own and plead guilty without thinking through the consequences. Here are some things to remember:
1. Employment Consequences.
Do you really want to be applying for a job with a criminal conviction on your record? All employment applications ask about criminal convictions, and employers can run instant background checks online.
2. Immigration Consequences.
Convictions for possession of marijuana can lead to deportation if you are not a U.S. citizen. There are ways to minimize the risk with a properly crafted plea deal, but a person definitely needs the assistance of a lawyer.
3. Chemical Dependency Evaluation.
A judge has the power to insist that you obtain a drug/alcohol evaluation, and that you comply with any recommended treatment as a condition of probation. Yes, recreational pot users can very easily end up in a court-ordered 12-step program that lasts for 6 months, complete with court-ordered U.A. tests.
4. The Loss of Student Loan Eligibility.
If a student is convicted of marijuana possession after receiving Federal student aid money, he or she must notify the Financial Aid department of his college immediately and will become ineligible for further aid. Many times, however, a student can enter a rehabilitation program that can make him or her eligible for federal financial aid again.
5. Mandatory Minimum Sentences.
Many states still have strict sentencing guidelines even for possession of small amounts of marijuana. For example, in Washington State there is a mandatory minimum sentence of 24 hours in jail, and a $250 fine for a conviction for possession of marijuana.
6. Entry into Canada.
Getting into Canada can be difficult for Americans with criminal records. Other countries, such as in Europe, are not as picky.
A drug conviction can make a person ineligible for federally subsidized housing, or can get a person kicked out of their housing. Questions about drug convictions are also often asked on private rental applications.
8. Child custody.
If you are, or will be, in a child custody dispute in court, be prepared for your ex to bring up any drug convictions you may have. In addition, drug convictions can make you ineligible to adopt.
9. Welfare and Food Stamps.
A drug conviction can make you ineligible to receive welfare or food stamps.
Proving a marijuana possession charge can actually be pretty hard for a prosecutor. Despite what some police officers think, the law requires that the State prove “knowing” possession. So just because a drug was in your car, doesn’t mean that you are the one to be held responsible. Additionally, a prosecution requires that a scientist or leaf-identification expert appear personally at the trial to testify that the substance is marijuana. Prosecutors know that jurors are often resentful of their time being wasted on people caught with small amounts of marijuana.
What would come of our nation’s marijuana laws if everyone insisted on a jury trial?
What do you think about this subject?
With an estimated 14.5 million Americans regularly using marijuana, it is a common occurrence to be stopped by the police for a traffic infraction while in possession. In most cases, the vehicle stop is unrelated to drugs; the driver is simply stopped due to exceeding the speed limit, driving with a broken taillight, or maybe expired tabs. The police cannot and do not search every single car they stop for speeding. Nevertheless, police often end up making arrests for marijuana, even for possession of medical marijuana. The below advice is based on my 7 years of working as a prosecutor and my 8 years of working as a criminal defense lawyer. Additionally, through public record requests, I have been studying patterns of police behavior in traffic stops that lead to marijuana arrests or charges. Many of my public record requests were for arrest reports for marijuana cases stemming from police patrols near concert venues, barter fairs, and college campuses.
Tip one: Keep your registration and insurance instantly available.
When you drive on a public roadway, you are subject to being stopped for any minor traffic infraction: speeding, burnt out license plate light, failure to use turn signal, etc. So surprise! One minute you are driving along, and a minute later with little notice you are face to face with a police officer standing at your window. You want him to be on his way A.S.A.P. Always have your registration and insurance ready to go instantly. Above the visor is a good place. Buried in the glove compartment is not a good place. Defense lawyers always see references in police reports to how drivers can’t find their important paperwork. The police often try to argue that the inability of a driver to produce these papers is indicative of impairment due to alcohol or marijuana use. If you have to root around to find the papers, you are, in effect, searching the car for the police officer because he or she gets to watch while you open everything up and dig through your belongings.
Tip two: Don’t keep marijuana in your purse or glove box.
Don’t keep marijuana in your purse, glove box, wallet, or center console. This is pretty basic advice, and you may have already thought of that. But do you know where the safest place is to store marijuana? A locked suitcase, brief case, or locked bag is the safest place to store something you wish to keep private. You may note that most of these locks are totally flimsy, and could be easily broken by the police. However, locked bags have historically been given much greater privacy under constitutional law. See e.g. State v. Fladebo, 113 Wash.2d 388, 395, 779 P.2d 707 (1989); see State v. Stroud, 106 Wash.2d 144, 152, 720 P.2d 436 (1986). A locked bag is much less likely to be disturbed even if you are arrested for another matter such as an outstanding warrant or for driving with a suspended license. The trunk always works too.
Observation Three: Store the marijuana in “someone else’s” bag.
If you are a guy, it is pretty hard to say a marijuana cigarette belongs to you if it is in a pink purse. Likewise I suppose, it may be harder to attribute a bag of marijuana to a woman if the drug is found in a bag full of men’s clothes. So when I say “someone else’s” bag, I mean a bag that someone wouldn’t associate with you. Marijuana in a locked luggage bag filled with XXL clothing would be pretty hard to attribute to a person who is 5’5″ and 120 pounds. You will note that the heading above says “observation three” rather than “tip three”. I can’t really “suggest” this technique for a marijuana cigarette, and then have some drug mule using this technique to run pounds of meth up and down the I-5 corridor. Like I said above, I have studied a lot of marijuana cases, and when the drug is found in “someone else’s” bag, the charges just don’t seem to stick. Some people seem to think that if marijuana is found in your car, you are automatically guilty but that just isn’t the case.
Tip Four: Remain Silent.
After you are pulled over and have received your traffic ticket, the officer might ask you if there are any guns or drugs in the car. Although some people might just lie and say no, I would suggest the better practice is to simply say “I don’t have anything further to say, and if I am not free to go right now, I want to call a lawyer right now on my cell phone.” Lying to a police officer in most states is a crime. Responding in the manner that I suggest will most likely be taken as you knowing your rights. This will not necessarily alert the police to the presence of any contraband. After all, people who do not smoke marijuana would likely be offended by the questions, and they may just respond the same way rather than dignify the question with a direct response. And whatever you do, don’t try to convince the officer of the merits of the case for legalization. For some reason I see this a lot in reports, and I half wonder if it stems from a scene in the movie “Traffic” years ago.
Tip Five: Don’t allow the police to search your car.
This might seem pretty obvious, but you would be surprised at how often drivers “consent” to a search of their car. It usually goes something like this: The police officer claims to be able to smell the marijuana, and threatens that if you make him go to the trouble of getting a search warrant, he will really throw the book at you. The police might also imply that if you just hand it over he might not charge you, and this is almost always false.
Tip Six: Keep the phone number of a lawyer handy.
It is helpful to have the 24-hour phone number of a criminal defense lawyer on your cell phone. And by a “lawyer”, I don’t mean me. I value my sleep too much, and I only give my cell number to current clients. But check the yellow pages for criminal defense law firms in the nearest city, and you will find phone numbers. The police won’t necessarily allow you to speak to an attorney immediately on the side of the road, but the request to do so sends a clear message to law enforcement that you mean business when it comes to standing up for your rights. If you can’t reach your lawyer, that is o.k. We already know what he or she will say to you: “Exercise your right to remain silent, and don’t consent to any search.”
Tip Seven: Be aware of profiling.
When I use the term “profiling” I don’t mean racial profiling. What I mean is that the police have preconceived notions of what a marijuana user looks like, and the police also seem to target people going to and from rock concerts, barter fairs, and some colleges etc. Unlike racial profiling, courts seem to put up with a lot of this targeting by the police. Keep in mind that marijuana enforcement varies from county to county and state to state. Read more about punishments for marijuana possession and marijuana delivery.
Tip Eight: Be courteous.
Be courteous to the police. I don’t mean calling the officer “sir” or saying “thank you” when you get a speeding ticket. I just mean don’t go out of your way to antagonize them. Additionally, remember that the officer’s first concern is his or her safety, so keep your hands where he can see them. Furtive gestures or a belligerent attitude can later be used in court to justify why an officer asked you to step out of the car for a pat-down search. Remember it is not discourteous to invoke your right to remain silent or to refuse consent to a search.
In conclusion, the above are tips for people traveling with small amounts of marijuana. I think the suggestions would be particularly helpful for people with medical cannabis authorization, who are still subject to harassment.
I read in the Spokesman-Review last week that the Washington State Department of Revenue sent notices to medical marijuana dispensaries demanding collection of retail sales tax on marijuana sold. This letter took the position that the sale of medical marijuana does not fall within the sales tax exception for prescription drugs. But is this interpretation of the law really correct? Many dispensaries have begun collecting and paying sales tax to the Department of Revenue as a way of seeking legitimacy. However, isn’t paying the tax conceding that “medical marijuana” is somehow of lesser medical value than other prescription drugs?
Medical marijuana cannot be “prescribed” under federal law, but it is important to remember that the definition of “prescription drug” for purposes of Department of Revenue (DOR) regulations is different. Let’s take a look at the DOR code on this subject. Section 1 of RCW 82.08.0281 clearly states retail sales tax “shall not apply to sales of drugs for human use dispensed or to be dispensed to patients, pursuant to a prescription.” Section 4 of RCW 82.08.0281 clearly states: “‘Prescription’ means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state to prescribe.” How exactly does a doctor’s medical authorization for marijuana not fall under this definition? (See sample of authorization form.) Courts have ruled that the DOR is not to use a hyper-technical definition of “prescribed.” In the case Deaconess Medical Center v. DOR, 58 Wn. App. 783 (1990) the Washington Court of Appeals used the common dictionary definition of “prescribed” from Webster’s Third New International Dictionary 1792 (1966). The Webster’s dictionary definition of “prescribed” means “to designate or order the use of as a remedy.” Webster’s uses the term broadly, and provides the term in the following example sentence: “The doctor prescribed three months of physical therapy for my leg injury.” Simply put these dispensaries are the victim of a Department of Revenue shake down.
Let’s remember that medical marijuana dispensaries operate in a gray area of the law. The Washington voters legalized medical marijuana possession, but never provided for a clear legal mechanism for sick patients to obtain the drug. Not every sick cancer patient is able to tend to their own marijuana garden. Consequently patient cooperatives have sprung up, often acting in concert with activists. Most police agencies have held off raiding these dispensaries, but we only have to read yesterday’s Inlander article to see that the police are merely biding their time before further raids continue in Spokane. The truth is that the dispensaries are scared, and no dispensary is likely willing to refuse pay these bogus sales taxes to the Department of Revenue. The attorneys general that work with DOR can simply make a call to the criminal division of the Attorney General’s office to push for prosecution of dispensaries unwilling to pay these “taxes.” No dispensary wants to be the one to stand out and risk criminal charges. To put it another way, the uncertainty in the law makes these dispensaries susceptible to a form of blackmail. Revenue projections calculated by the The Inlander amounted to millions of dollars Olympia is getting from these patient cooperatives. This “sales tax” in turn will be passed on sick patients who can scarcely afford to pay more for their medicine.
You have to wonder also about the legality of collecting sales tax for an activity that is still in violation of federal law. Generally speaking, just because an activity is illegal does not mean that it is tax exempt. However, in the case of Marchetti v. United States (1968), the U.S. Supreme Court held that certain regulations that required the reporting and tracking of the activity for revenue purposes amounted to a violation of the right against self-incrimination.
Why is Washington trying to impose a sales tax on medical marijuana dispensaries when the State of California does not? The dispensaries in California seems to be a little more confident that they will not be raided, and enjoy more protection under their State law. They would be more willing to fight such a state action in my opinion. In Washington, Mike Gowrylow, a spokesperson for the Department of Revenue, explained “right now, every buck counts”. Quite simply the State is hungry for revenue from all sources. In my experience as an attorney who has defended clients from the Department of Revenue, the State often seems to come up with “creative” ways to apply taxes during economic downturns. One time I represented a client who received an assessment for taxes under questionable circumstances. We indicated out intention to fight it and appealed. About 6 months through the process, the Department just dropped the issue, apparently moving on to easier targets.
What do you think about this subject? Should these dispensaries have to pay sales tax? Do you think that all the dispensaries in Spokane will comply? Will these tax payments help legitimize these co-ops? Will more dispensaries be raided as the Spokane police have threatened?
Remember last summer when scientists released a new study claiming to link marijuana use with schizophrenia? See e.g. Reuters article. Let’s face it, it is the government that has the split personality disorder when it comes to marijuana laws. Can someone explain to me why there is a mandatory one day in jail for misdemeanor possession of marijuana in an amount under 40 grams (RCW 69.50.425), but a judge is not obligated to impose any jail for a person convicted of the felony of possession over 40 grams? See page III-279 of State Sentencing Guidelines Manual. How about the huge disparities in the way in which marijuana laws are enforced from county to county and city to city? For example the Seattle city attorney announced this year that he was not going to prosecute any misdemeanor marijuana cases period. See source. But in most rural counties of eastern Washington, marijuana enforcement is still in full effect. In metropolitan areas of Washington, large medical marijuana dispensaries are tolerated, but in rural eastern Washington things are different. Small-time medical marijuana grows are routinely raided in Okanogan, Ferry, Stevens, and Pend Oreille counties. A new medical marijuana clinic in Okanogan County will soon be held (see story) – I guess we will see how that goes over.
As a criminal defense lawyer it is becoming harder and harder to explain to clients that there is any sense to the system. Under federal law, even a first-time charge of simple possession of marijuana is enough disqualify a young person from eligibility for student loans. In Washington, proposed Initiative 1068 would legalize possession of small quantities of marijuana. This initiative would be on the ballot next year. But would such an initiative really pass in Washington State if a similar initiative just failed in California? I think people are getting discouraged about any change in the marijuana laws here in Washington State.
What do you think about the disparities in enforcement? Do you think the initiative 1068 will pass next year?
I was looking at the Spring/Summer issue of Mac|Life this week, and was a little blown away at the announcement that private drones would soon be available to “surveil you’re enemies from above.” If you ever tried an old remote-control helicopter, you know that they are shaky and unreliable, and often crash. This new flying machine is a quadricopter (four rotors), and comes equipped with two video cameras. You control the drone with your iphone, and it streams the video back to your screen. Check out this YouTube clip for an idea of how it works:
You have to wonder about the writers at Mac|Life who suggested that this invention is the “best app ever”. Mac|Life’s adoring “review” of this product has no thoughtful discussion of its potential for abuse. It is one thing to understand theoretically that the C.I.A. can read a license plate off of your car, or to know that Google Earth has a grainy photo of your backyard online. But it is another thing entirely for the geeky neighbor kid to be flying this around outside your second story window. It is one thing to be “watched” from above, and another thing to be watched from all sides.
I remember in law school learning about the legal principle that states that a property owner owns his or her parcel all the way from the center of the earth up to the heavens. I looked this principle up again today, and the notion dates back to William Blackstone, who in 1766 wrote it in Latin: “Cuius est solum, eius est usque ad caelum et ad inferos.” So is it trespassing to fly this over your neighbors house and spy on him? As with most laws in Washington, the RCW code takes a while to catch up on new technology. Example: In July 21st, 2000, a perv named Richard Sorrells ran around Seattle Center with a mini-video recorder in his hand that he pointed up girls skirts. He was arrested, but he beat the charges because he never actually touched the girls, and there was no law that prohibited such filming. Well, it took about three years, but the slow-pokes in our state legislature finally figured out video cameras were now smaller than a Super 8 mm. On May 12th, 2003 the legislature enacted RCW 9A.44.115 which made such filming a felony. How long will it take for the legislature to prohibit someone from buzzing a drone through your yard while you are having a barbecue?
Would it be permissible for the police to fly a drone over your garden to look for marijuana plants growing? It will be interesting to see how how this develops. Basically, under Washington law, the police are allowed to fly over your house and look for marijuana gardens. The State Supreme Court ruled in State v. Wilson (1999) that such a flight does not invade a persons privacy as long as the planes comply with the FAA rule that fixed-wing aircraft remain at an altitude of 500 feet. Currently, the only marijuana-spotting drones in use by law enforcement in the U.S. are in Northern California. There, the Forest Service uses drones to look for large marijuana gardens on public lands. Under law, an individual has a lesser expectation of privacy while on public land, than at his home. In Europe however, the police have begun to use drones to fly-over and observe activities on private property. The police in the U.K. used a drone to catch a car thief, before being told such use was not allowed without a permit by the UK’s Civil Aviation Authority. See story. In the Netherlands, the police have begun using drones to look for marijuana grows. See video:
Is it just me or is this drone technology pretty scary? Where are we going to be in 5 or 10 years on this issue? What do you think?