Archive for November, 2012

When does Initiative 502 go into effect?

The short answer is December 6th, 2012.  However, different prosecutors across the state are taking different positions.  For example, prosecutors in King County and Pierce County announced last Thursday that they would be dismissing all pending marijuana charges.

But in Spokane County, a lead prosecuting attorney gave the opinion that he felt that Initiative 502 only permitted the possession of marijuana if it was bought in a state-license store.  The Spokane prosecutor explained: “The only thing that is legal is selling marijuana through those stores. That will be regulated by the state. You can’t under this initiative have an ounce of marijuana that doesn’t come from a state-issued provider. You still can’t have black-market marijuana.”  If that is the case, there would be a significant delay until Initiative 502 goes into effect because the state stores will not be set up until 2013. Additionally it is highly unlikely that the federal government would even tolerate the existence of state stores.

The position of Spokane prosecutor seemed to be more of an off-the-cuff remark rather than a declaration of an official office interpretation.  Under legal traditions in the country, if a law is ambiguous, it is to be construed to favor the individual over the government.  In law, this is often called “the rule of lenity” that “penal statutes are construed narrowly.”  Several criminal defense lawyers across the state are currently making the argument that I-502 should be applied retroactively.

Poet, songwriter and community activist Nicole “Nyki” Kish was convicted on March 1, 2011 of second degree murder for allegedly stabbing to death Ross Hammond in Toronto Canada, on August 8, 2007.

The physical altercation that resulted in Hammond’s death began when a women identified as Faith Watts allegedly asked for money from George Dranichak and Hammond. Dranichak testified at the preliminary hearing and at the trial that he and Hammond had responded to Watts with sexual derogatory remarks, such as telling her that she must perform sexual acts if she wanted the money.  Dranichak admitted that this was the initial cause of the altercation.

The request for money quickly escalated for a exchange of heated words a large brawl that involved both Dranick, Hammond, Watts, Watt’s boyfriend, Kish, and other unnamed individuals, both males and females.

The brawl took place at the Toronto intersection of Queen and Bathurst, a very well lit area with shops and restaurants on both sides.

At the conclusion of the brawl, Hammond lay bleeding having sustained 5 stab wounds to the chest, and several others on the back. The one that took Hammond’s life was a cut that completely penetrated the anterior right ventricle of his heart. Nyki was the only other one who has been injured by the knife, with a stab wound to her arm.

The entirety of the incidents that occurred on August 8, 2007 can be viewed here: case overview

The difficulty surrounding this case revolves around the variety of recollections of what occurred that night. Prosecuting Crown, Warren Thompson, called upon 20 witnesses to testify, however, because of the nature of the incident, many of the recollections and accounts of what transpired were inconclusive and contradicting.

Few things were known for certain. The first one was that the knife that was used to stab Hammond was not Nykis, but former co-accused Faith Watts. Faith testified that it was indeed her knife and she produced the knife after becoming terrified for her life and the life of her boyfriend Doug, who was being beaten unconscious by Hammond at the time. She also testified that either Dranichak or Hammond quickly disarmed her.

The second piece of information that we know for certain is that the there was DNA evidence of both Nyki and Hammond on the knife; the same knife was used to stab Hammond and Nyki.

And lastly, the mot important piece of information is that there was only one miniscule piece of Hammond’s DNA present on Nyki’s sole of her shoe. Whereas, Watts had several spots of DNA on her boots and two spots on her shorts.

You can listen to the Mother of Nicole Kish speak out here.

There are several pieces of this case that do not add up and truly show a disconnection between what really happened and what Nyki is being changed with.

Detective Sergeant Gary Giroux was the detective assigned to the case. Giroux stated on the stand that he based his murder charges against Nyki because of the eyewitness testimonies of molly Stopford and Jonathan, both of which admitted later on in the trial that it was possible that they could be interchanging two, maybe three girls that she had seen involved in the brawl.

With all the confusion surrounding what actually happened that night through the eyes of the witnesses, would it not be easier and more accurate to view the surveillance tapes that were located on both sides of the street? The defense thought so, however, when asked to present the video footage in court it was determined that both tapes were either lost or recorded over while in police custody or under police supervision. One VHS tape from a Jewelry store was placed into an evidence box, and by the time it came into Giroux’s possession, the video was no longer present anywhere in the Toronto Police Department.

The second video, which was taken from One of a Kind Pasta, the only camera that could possibly see who stabbed Hammond, was recorded over by surveillance specialist Detective Olver, which was deemed unacceptable negligence on behalf of the Toronto Police Department.

The DNA test, and testimony from Faith Watts is another facet to this case that is very unusual. Justice Nordhiemer came to the conclusion that even though Watts testified to be the owner of the knife and had several DNA spots on her clothes, she was not the murderer, but rather, it was Nyki who had only one small piece of DNA on the side of her shoe. It seems very hard to believe that a woman can overpower a man and stab him five times in the chest with no contact, and no trace of DNA except for a minuscule spot on the sole of her shoe, all while already suffering a stab wound to her arm.

Nordheimer attributed the DNA findings as being the “limitations of Physical evidence,” and while he acknowledged that the knife belonged to Watts, it most likely changed hands several times before it was fatally used. Nordheimer focused less on the physical DNA evidence and more on Nyki being stabbed, stating that there is an “irresistible inference” that she must of killed Hammond.

The final interesting and inconclusive piece of information about this case is the “Unidentified Male.” There is a substantial amount of evidence that has come forward to suggest that the fatal stabbing that claimed Hammond’s life involved three males, not a female. Cam Bordignon testified that he recalled a man shout out, “you die tonight.” Shaun Park also witnessed this man pull up his shirt and showed off a stab wound that he received in his chest. Park recalled that the man said that it didn’t matter, that he had been stabbed in the chest 19 times.

This raises the question about the unidentified male’s motives and the possibility of a second knife that was present in the brawl. Watts testified that the knife that she originally produced that night was serrated, which is consistent to the wounds inflicted to Hammond’s Back. However, the wounds on Hammond’s chest, including the one that claimed his life, had little to no resembling characteristics. In fact, Dr. Pollan, the doctor who preformed the autopsy could not rule out the possible of a second knife.

Nyki was convicted and sentenced to life in prison with no chance for parole for 12 years.

“…innocent people will continue to be damned to this until more Canadians are made aware of the workings of our judicial system and vital changes are made. I’m ashamed that our police forces tunnel vision to prosecute me against all obvious facts will leave many without true closure and equally ashamed that our media is not the public watchdog it ought to be.” -Nyki Kish

You can read more about this case at Injustice Anywhere or at Free Nyki. Both of these websites give a thorough account of the events on that occurred on August 8, 2011 and all actions following. These websites also offer collections of her music and writings. The best way to keep up on recent developments in Nyki’s life and trial is to look at the Free Nyki facebook page.

As Initiative 502 passes into law tonight, no one in our criminal justice systems will know for sure what it means.  Will the passage of I-502 be the first crack in the Berlin Wall that is nationwide prohibition?  Will the passage spread through to other States in 2013 and 2014?  To what extent will the federal government tolerate the open sale of marijuana?  Will the law be applied evenly throughout the state, or will eastern Washington continue to lag behind in the liberalization of marijuana laws?  Here are my predictions:

1.  The Feds adopt a wait and see approach.

Although the possession or sale of marijuana remains illegal under federal law, the federal government will likely take no immediate action against I-502.  As with our passage of medical marijuana 14 years ago, the federal government will be slow to completely invalidate a state policy decision on a controlled substance.  The federal authorities sat back until 2010 to begin action against the larger medical marijuana dispensaries in Washington, and we certainly won’t see any immediate action from the federal authorities now.

2. Increased marijuana DUI enforcement. 

Marijuana-related DUI charges have traditionally been rare in this country.  The effects of marijuana intoxication are more subtle than with alcohol, and the scientific studies indicate that marijuana does not have a predictable effect on a person’s ability to operate a motor vehicle.  However, I-502 has set a legal limit of 5 nanograms of THC per milliliters of blood.  I predict that the Department of Licensing and the law enforcement of the state will begin to enforce that new provision immediately.  Although I-502 will likely not lead to many new marijuana users, the perception of law enforcement will be that marijuana use will increase ten fold overnight.  Starting today, every law enforcement officer will feel he or she has a new job – standing as a bastion against “stoned” driving.

 3.  Zero tax revenue.

Initiative 502 was sold on the Washington voters as a good source of tax revenue.  While the voter initiative calls for such a regulatory structure, timid state officials will not license marijuana stores out of fear of being viewed as an “accomplice” to a violation of federal law.  If the state isn’t licensing the stores, they will find it difficult to collect any taxes.  My prediction is a net tax revenue for 2013 of zero dollars.  The more likely scenario is that sales of marijuana will continue on a gray market to people who believe they are buying marijuana legally because they voted for Initiative 502.

4.  Prosecutions continue in eastern Washington.

The legalization provisions of I-502 did not go into effect as of 8 p.m. tonight.  Rather, the law takes effect on December 6th.  As pointless as it may seem, hundreds of people will be arrested and cited for marijuana possession between now and then, particularly in rural eastern Washington.  Additionally, even after December 6th, prosecutors in eastern Washington will find ways around Initiative 502.  For example, during a traffic stop, if a person admits to sharing a little marijuana with a friend, or admits to intending to share, they will be charged with felony charges of delivery of a controlled substance, or possession with intent to deliver.  Likewise, people could be charged with possession if they admit to having possessed the marijuana in Washington State prior to December 6th.  This might sound silly if you have never practiced over there, but this is the difference between the Seattle area and the rest of the State, and this uneven and inconsistent enforcement will continue post I-502.

Initiative 502 may decriminalize the possession of small amounts of marijuana, but let’s face it, people don’t buy marijuana just to “possess” it.  The point is to ingest the marijuana.  But if you do use it, don’t go anywhere near a car for the next 4 or 5 days.  Because under Initiative-502, you can’t have over 5 nanograms of THC in your blood if your operating a car.  For those of you unfamiliar with the concept of a nanogram, it is one billionth of a gram!  For regular users or medical cannabis patients, you can never legally drive!  Here are few tips from a criminal defense lawyer on how to survive post-Initiative 502.

1.  Take Opiates Instead.  If you are a medical marijuana patient, go back to using powerful opiate painkillers.  We understand you gave up methadone, morphine or Oxycontin for medical cannabis because it is safer, cheaper, and it doesn’t leave you feeling like a zombie all the time.  But there is no per se legal limit for driving under the influence of Oxycontin.  None! And the state toxicology lab will also have a hard time proving you are impaired because drugs effect everyone in different ways.  (Disclaimer: This law firm is not legally responsible for overdoses or deaths, or robberies of Walgreens caused by this advice.)

2.  Drive absolutely perfectly.  If you have used marijuana in the last 4 days, don’t give the police any reasonable suspicion to pull you over.  Make sure your tail lights aren’t cracked, make sure your have mud flaps on your car even in July, make sure you license plate illumination bulb is functional, and don’t drive 56 mph in a 55 zone.  Don’t drive 54 mph in a 55 zone either, that is suspicious too.   “Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you.”  U.S. v. Broomfield (2005).

3.  Don’t go to eastern Washington.  It is not the marijuana itself that eastern Washington police hate, its the smug view of the west-side electorate and their voter initiatives that will put them out of work.  For the last ten years in eastern Washington, you were often worse off being caught with marijuana and a green card then with just marijuana by itself.  The police hate I-502 in eastern Washington, and they will be determined to fill their jail cells with new 5 nanogram DUI cases.

4.  Avoid the odor of Marijuana.  The police of Washington State have bionic noses.  Even if you smoked marijuana 10 hours ago, the state patrol can still manage to sniff that on a windy day along side the highway. And don’t even think about hanging a tree air freshener on your mirror.  The police consider that probable cause for arrest.

5. Don’t Toke until you are 21.  At one time in our nation’s history, it was socially acceptable to try marijuana when you were young and in college.  But under I-502 it is considered a marijuana DUI to have any level of THC in your system over 0.00. The FDA allows 30 parts per billion of arsenic in drinking water, and 23 parts per billion of lead in eggs for school lunches.  But if you are under 21 it is a DUI to have any THC in your system at all!   If you are under 21, find another drug!  Heroin, cocaine, MDMA, and huffing gas and aerosol containers all have no per se legal limit!

6. Take the fifth.  When asked by a police officer if you have smoked marijuana in the last 24 hours, take the fifth. Invoking this right was once associated with mafia dons and McCarthyism but it will need to come back in style if drivers are to avoid giving the police probable cause to arrest them for Marijuana DUI.

7.  Get used to an Ignition Interlock.  Under Washington DUI laws, if you refuse a blood test you will need to obtain an ignition interlock device on your car, even if you were arrested for driving under the influence of marijuana.

For the straight scoop on whether marijuana effects driving see here and here.  For more tips on surviving in an absurd society see here and here.

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Will Initiative 502 pass?  Yes it will.  The latest polls show that the law is ahead in the polls 53% to 44%.  It is true that California ran a similar ballot measure in 2010 that failed.  However, that measure in California (Proposition 19) was behind in the polls at the time of the election (45% for, 53% against, at the end of October).  The reason why Proposition 19 was defeated in California was because the opposition raised the specter of “stoned drivers” and because the law lacked a regulatory framework to convince the voters that the sales of cannabis would be tightly regulated.  Mothers Against Drunk Drivers ran opposition ads in October, 2010 to proposition 19.  In Washington, the opposition to Initiative 502 has not been well-funded.

Questions remain about the fairness of the law in the treatment of people accused of “Marijuana DUI.”  Many such charges will be based on spurious evidence as the “green tongue” phenomenon. The law also envisions a marijuana sales network regulated like state liquor stores.  It is questionable whether the federal government would ever allow such a regulatory scheme.   In eastern Washington the federal prosecutors essentially closed all the medical marijuana dispensaries.  It is hard to imagine them tolerating state-run marijuana stores.  At this point it seems like a foregone conclusion that the law will pass.  The question that remains is how will Initiative 502 be implemented?  We will have more on this later….

 

With the latest polls showing that marijuana decriminalization Initiative-502 is highly likely to pass, many people are asking about the practical effect of  I-502 in the short term.  As a criminal defense lawyer who handles a lot of marijuana cases, here is my opinion on what to expect, and what not to expect in the short term.

1.  Pending Cases

I-502 does not mean that all pending marijuana possession charges will be dismissed.  By its terms, I-502 doesn’t apply retroactively.  However, prosecutors will be left wondering whether there is any point in continuing prosecutions of simple possessions of marijuana.  Jurors are already ambivilent about having to come to court for small, seemingly-harmess marijuana cases.  If Initiative-502 passes, jurors will really be confused about why the government is even bothering to prosecute.  However, you can expect many police officers to continue to cite people for marijuana possession right up to December 6th when the law goes into effect.

2.  Traffic Stops

The passage of I-502 will not mean the end of harassment for marijuana users.  Rather, the battleground for the war on drugs will merely shift.  If you are pulled over for traffic infractions (such as speeding or broken tail light), you can expect an increased interest by the police in determining whether or not you are “under the influence” of marijuana.  Initiative 502 places a legal limit of 5 nanograms per milliliter for THC in a person’s blood.  When I first started working as a lawyer in criminal courts in 1994, “marijuana DUI” were almost unheard of.  However, I have defended more and more such cases in the last few years, and the WSP has requested 2 million dollars in extra funding just to enforce I-502’s new 5 nanogram limit.  Many of the arrests for Marijuana DUI will be based on such spurious evidence as the “green tongue” phenomenon.

3.  Medical Marijuana Cards

The passage of I-502 will likely be of some help to medical marijuana patients involved in battles over the legitimacy of their medical card.   Many people charged with possession of marijuana have out-of-state medical cards that aren’t being recognized in Washington.  Likewise many medical marijuana patients find themselves in court because their medical card was expired.  I-502 is likely to help patients fight their legal battles.  This is particularly true in more conservative jurisdictions that have been construing medical marijuana laws very narrowly.

4.   Selling Marijuana / Buying Marijuana

Pete Holmes, the city attorney for Seattle has promised that the passage of Initiative 502 will mean that “adults will be able to buy an ounce of marijuana at a retail store confident that it was produced in Washington free of herbicides pesticides, mold or other contaminants.  502 will thus be a boon to Washington agriculture.”  This will not happen in the short term, and will never occur until the federal government liberalizes its policies toward marijuana.  Despite the limited decriminalization in Washington, the possession or selling marijuana is still illegal under federal law. Anyone attempting to open up a “state-licensed” store will face overwhelming legal obstacles, and will face federal prosecution.  If you have a current pending charge for the delivery of marijuana, I-502 will likely not be of much assistance to you.

5.   Marijuana Possession at the U.S. Border

When travelers are searched at the border entering from Canada, the possession of marijuana can lead to charges in state court, and this can be an absolute nightmare for travelers.  Although it it is a felony under federal law to import even small quantities of marijuana, these charges are almost always referred to State court for prosecution. With the passage of Initiative 502, the State courts will have difficulty prosecuting such cases. It is unlikely that the federal prosecutors will bother with such small amounts. People caught with small amounts of marijuana at the border will likely face a small civil penalty and will be served with papers barring the person from ever re-entering the U.S.

What do you think the immediate practical effect of Initiative – 502 will be?  If you are a marijuana user, does this 5 nanogram limit concern you?  How do you think prosecutors will react to this new law?