In the 13-year history of Washington’s medical marijuana law, the Department of Health (DOH) has not taken disciplinary action against any health care provider related to medical marijuana authorizations.  However, DOH has opened an investigation recently into health care providers who are claimed to have issued the authorizations at Hemp Fest in Seattle.  It pretty much started when a reporter from the Seattle Times, Jonathan Martin, stopped by a booth set up by 4Evergreen, and claims to have walked off with a medical marijuana authorization 11 minutes later.  To get the authorization, Martin complained of “a four-year problem, treated by physical therapy, prescription, and over-the-counter pain remedies, with weekly flare-ups ranging from slight to severe.”  This article pretty much highlights a difference in philosophy between medical marijuana  advocates and others in the state.  Many think medical marijuana should be a drug of last resort, whereas others view medical cannabis as a safer alternative to other powerful drugs such as hydrocodone or OxyContin.  It would have been interesting for Martin to have conducted a similar experiment to see how easily he could obtain those prescription drugs.  I would bet that his similar complaints could have led to a prescription for OxyContin in a lot of doctor’s offices.

The story by Jonathan Martin reminds me a little bit of what Clel Baudler did when he was fighting medical marijuana in Iowa.  Baudler, who is a state representative, traveled to California and lied about a medical condition in order to demonstrate how easily he could obtain a prescription.  He admitted he lied, and later faced ethics charges over the incident.

What do you think?  Should state law be amended to make it harder to obtain authorizations?

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.

(The author Steve Graham is a criminal defense attorney practicing in eastern Washington.  See his further information on the laws DUI or marijuana in the State of Washington.)

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?

In Washington State, police officers have increased their arrests and prosecutions for Marijuana DUI’s.

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.

Above is the diagram of Professor Klonoff’s driving course where he experimented with the effects of marijuana consumption on driving in 1973.

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.

In a study in Maastricht, Netherlands, scientists concluded it was not possible to detect driving impairment from THC levels in the blood. The study was sponsored by the U.S. Department of Transportation.

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.

(The author Steve Graham is a criminal defense lawyer practicing in eastern Washington.  See his further information on the laws of Marijuana and DUI in the State of Washington.)

Ready for some fair press coverage about Amanda Knox?   After all, it is not just the Italian and British tabloids that suck. The Lifetime Network’s movie about the trial was pretty bad, and the coverage on the network news is hardly insightful. So check out the new Rolling Stone article about the Knox trial by Nathaniel Rich. The article is entitled: “The Never Ending Nightmare of Amanda Knox.”  If you want to pick it up at the news stand, look for the new issue with Katy Perry on the cover.

The article debunks a lot of the myths about Knox, her family, and her personal life. The article contains interviews with Knox’s friends who visit her regularly, and share what Knox is thinking and how she is holding up. The people who know Knox described her as a naive kid, with few self-preservation skills or street smarts, that she would talk to strangers, and always assume that people were good and fair.  So we see how that could be a problem in the Italian criminal justice system.  The reporter obviously spent a lot of time camped out in court, and bumped into Candace Dempsey there last month.  As an American lawyer, I found Rich’s observations about the Italian court interesting.  He writes: “…[T]here is never order in the court, the lawyers and defendants constantly interrupting the proceedings with groans and catcalls and wild gesticulations, while the press in the gallery yammers away like the kids in the back of the classroom.”  Rich doesn’t really set his sites on Giuliano Mignini so much as the evidence in the case as a whole.  The reporter does fault the Italian police officers who first arrived at Knox’s apartment.  The first officers on the scene did not have much experience, and he compares the investigation to something out of Scooby-Doo.  The article contains an interview with Giuliano Mignini, and that probably was not easy to arrange.  The article doesn’t mention any questions posed about Mignini’s own criminal conviction, or the frivolous slander charges Mignini has brought against Knox’s parents.

The funny thing about what Mignini says is that  many of his opinions about Knox seem to be based on her demeanor, which I find really superficial as I have complained about before.

I am interested in what you think about this article or the case in general.  Post your comments below.

The case against Amanda Knox was further weakened yesterday when Italian jail inmate Luciano Aviello testified and contradicted Giuliano Mignini’s theory of the case.  Luciano Aviello is a mobster from Naples that is serving a 17-year sentence for racketeering.  Luciano Aviello tried to contact Italian authorities numerous times to give them the information that he had on the death of Meredith Kercher.  He was ignored, but was called to the stand yesterday by Amanda Knox’s lawyers to testify in her appeal.  Luciano Aviello testified that his brother Antonio Aviello returned home with a knife one day, covered with blood, and confessed to the crime.  These sort of  jail-house witnesses always pose a problem for any judicial system, whether in Italy or the U.S.   However, there are ways to test the credibility of such statements.  Usually, such witnesses are produced by the prosecutor, after he or she agrees to give a lenient sentence.  Since Luciano Aviello was called by the defense, we know that there has not been any such inducement.  The timing of the statement is also important.  Here Luciano Aviello consistently reported his concern to authorities but was apparently ignored.   The track record of a witness is also important.  In this case Luciano Aviello has been used repeatedly by prosecutors to testify against other mobsters, but only when he speaks in Knox’s defense is he deemed to lack credibility.  Luciano Aviello claims that he and his brother were living in Perugia at the time of the killing, and this should probably be pretty easy to confirm or refute.  Luciano claims that his brother described the killing as resulting from a botched burglary.  It would be interesting to hear if Antonio Aviello has a criminal record for other such burglaries.  Luciano Aviello has always claimed that he buried the knife used to murder Meredith Kercher near his home, covering it with earth and lime, along with the keys to the house.  As pointed out by an Italian writer, the strange thing is that the keys to the victim’s apartment were not ever found.  At Amanda Knox’s first trial, the defense team was not allowed to produce this testimony.  This is an issue that American criminal courts wrestle with too.  U.S. courts do not always allow defense attorneys to call witnesses to state that others have confessed to the crime.  Such testimony is sometimes considered hearsay, and is governed by evidence rule 804 which requires that the evidence be corroborated before it is presented to a jury.

Additionally, a fellow inmate of Rudy Guede, Mario Alessi testified yesterday that Rudy had confessed to him that Knox and Sollecito  had nothing to do with the crime.  Rudy Guede denied ever speaking to Alessi, but other detainees corroborated that they had spoken.  Usually what police look for when considering such statements is whether the witness knows of some crime-scene detail that a person would only know if they were at the scene of the crime.  However, in this case the police seem to have leaked out all the details of the offense to the press.

I blogged last month about the censoring of Frank Sfarzo’s blog.  Here is the perspective of anItalian lawyer on the same subject.

What do you think?  Could Antonio Aviello have committed the offense?  Could he have been with Rudy Guede on the night of the offense?  The press is treating the testimony of Luciano Aviello and Mario Alessi as contradictory, but is it really that inconsistent?  If Antonio Aviello has committed a sexual assault, would he really want to admit this to his brother?  Doesn’t it make more sense that if he wanted his brother’s help that he would have described the homicide as a botched burglary?

I guess I don’t give a lot of “shout outs” in this blog, and my last one was in February of 2010, but I want to mention a law firm in Colville, Washington that does good work, and is recently expanding.  That would be the firm of attorney Tom Webster.  About 3 years ago he left a job at a small firm and opened up his own place.  Then about a year later, he hired another lawyer to come work for him, and then more recently another.  I hadn’t been in his office for a while, but I stopped by last week, and noticed he has recently expanded his office.  His practice is growing for a simple reason – his firm does good legal work. If you have an issue of family law, or a tort case, or a business dispute, check him out.  His website contains the tag line that Stevens County residents need not go to Spokane to get good representation.  But it won’t be long before people from Spokane start driving north to see him.

Well, I sent out my first DMCA take-down notice last week when law.hukuni.net republished one of my blog posts without permission.  For those of you who don’t know, a DMCA take-down notice is a legal warning that you send to a website that infringes on copyrighted material, and the notice is usually sent to the webhoster, and sometimes the search engines too.  So here is how it went.

Last Sunday,  I posted a new blog post about going to court on a marijuana charges.  A reader informed me that my blog post had been republished on hukuki.net, and that the hukuki.net version was coming up first in Google.  I looked up where the hukuki.net domain was registered on whois.net, which led me to this page, which gave me the contact info for where to send this threatening letter.

I am the copyright owner of the article being infringed at:

//law.hukuki.net/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment.htm

The article is a direct infringement of //www.grahamlawyerblog.com/2011/06/05/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment/  which is owned by me.

This letter is official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) to effect removal of the above-reported infringements. I request that you immediately issue a cancellation message as specified in RFC 1036 for the specified postings and prevent the infringer, who is identified by its Web address, from posting the infringing article to your servers in the future. Please be advised that law requires you, as a service provider, to “expeditiously remove or disable access to” the infringing writing upon receiving this notice. Noncompliance may result in a loss of immunity for liability under the DMCA.

I have a good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law. The information provided here is accurate to the best of my knowledge. I swear under penalty of perjury that I am the copyright holder.

Please send me at the address noted below a prompt response indicating the actions you have taken to resolve this matter.

Sincerely,

/s/ Stephen Graham email: steve@grahamdefense.com

When I didn’t hear back right away, I sent a complaint to Google, and they responded:

Hello,

Thank you for your note.

In accordance with the Digital Millennium Copyright Act, we have completed
processing your infringement complaint. The following webpages will be
removed from Google in a few hours:

//law.hukuki.net/charged-with-marijuana-possession-here-are-9-things-you-should-know-before-your-arraignment.htm

Please let us know if we can assist you further.

Regards,
The Google Team

When I clicked on that link I confirmed that Google had, in fact, removed the page.  I was kind of hoping that Google might just nuke the whole hukuki.net site, but I guess that was too much to hope for.  The site law.hukuki.net is kind of like the Napster of law blogs.  All it does, apparently, is just pilfer law- related sites and republish the articles.   Then I went back online today, and wasn’t able to access any of law.hukuki.net so maybe the whole site has been taken down.

When hukuki.net republished my blog post, it did credit the post back to me with a nofollow link, but at the same time the site was cluttered up with a bunch of do follow links to mesothelioma lawyers. I probably wouldn’t have cared that law.hukuki.net had reprinted my post except for the fact that Google was applying a duplicate content penalty to my site.  And by that I mean that is Google had misidentified my original version as a copy and had ranked the hukuki.net version higher in their search engine.

So my advice to other bloggers would be to complain to Google.  I never did hear back from the hukuki site, which is based in Turkey.

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.

7. Housing.

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?

(See past blog posts about marijuana, and other tips for arraignments.)

What do you think about this subject?

Many school kids are wearing “I Love Boobies” bracelets in memory of a relative who has died of cancer, or in support of a cancer survivor in their family. Why isn’t more being done to support these students?

Schools are continuing to try to ban the controversial “I Love Boobies” bracelets, even after a federal court in Pennsylvania ruled that such bracelets were protected by the first amendment.  How can they do that?  Well, what we find in the Pennsylvania court’s 40-page opinion is that the judge ruled that the particular school district in question failed to prove a “well-founded expectation of material and substantial disruption from wearing these bracelets….”  So other school districts are apparently spending their limited financial resources on lawyers they hope will make a better case for them.  Case in point, the Watertown School District of Massachusetts, which banned the bracelets recently and will soon face a court challenge.  Since I first blogged about the “Boobies” bracelets last October, I have received a handful of emails every month from students looking to fight their schools.  My advice is as follows.

• Step one: Read your student handbook for appeal procedures on any disciplinary action you receive (e.g. detention or suspension).
• Step two: Write the appeal letter and deliver it.  (Most appeal procedures first require a hearing in front of the principal, and then the school board.)
• Step three: Contact the media.  Look up newspapers and local T.V. stations online, and email them.  Many schools will back down from the embarrassment of such a ban.
• Step four: If that doesn’t work, call your local chapter of the ACLU.

As a lawyer who has actually represented school districts before, my advice to schools is:  “Give it up!”   You school districts won’t win, even if you take the case to the Supreme Court! Here is why the schools won’t win on this: the bracelets will never be shown to be sufficiently “disruptive” to justify a ban, particularly now that the bracelets are so commonplace.  While at first the bracelets may have led to snickers, now they are so common as to be boring.  And school districts are forgetting the fundamental rule of American popular culture.   First something is trendy, then it goes mainstream, then it becomes universally hated.  By the time your lawyers finish proof-reading their legal briefs, the “I Love Boobies!” bracelets will be cast aside for another trend.

For prior blog posts on other First Amendment issues in school, check out here, here, and here.

Let’s face it.  When you are in high school and living with your parents, you really don’t have any right to privacy in your bedroom.  But you are in college now, and you do have a recognized constitutional right to privacy in your dorm room.  Here is how it works:

1. Police Searches. For purposes of a search by the police, college students have the same right to privacy as they would in a private apartment.  In addition, courts also question the authority of the police to be in the hallway outside a dorm room.  After all, dormitory hallways are not open to the public.

2. Search by College Staff. Usually college rules provide that university staff (such as resident assistants and the maintenance crew) can conduct a reasonable search of a dorm room.  Check your resident handbook on this.  This usually means a visual search of the premises, but this does not give the school the authority to search through your closets, drawers, or belongings.  These searches cannot be for the primary purpose of aiding in a criminal investigation, and university officials cannot delegate their search authority to local police.

3. When the police and school officials both show up at your door.  School officials will sometimes request that the police accompany them on an inspection for “safety purposes.”  Unless they have a search warrant, the police need to wait outside the opened door.  The police will usually ask the student if they can enter, but you are free to refuse, and the fact that you refused cannot be held against you in court.  Do NOT consent to a search, either verbally or in writing. When two armed police officers stand at your dorm room and ask “We are coming in, o.k.?”, the natural response is to say “alright”. However, that response completely gives up your Fourth Amendment right against unreasonable searches and seizures.

4. Do not volunteer evidence against yourself.   It may be the natural tendency of a college student to be cooperative, but it is best not to produce any evidence against yourself. If the resident director arrives for an “inspection” of your room and discovers a cloud of marijuana smoke, you may feel that there is not much harm that can be done by turning over the drug.  However, that “cooperation” may mean the difference between facing a university disciplinary action, and facing a criminal charge and mandatory court appearance. If you are accused of stealing music over the campus internet service, it may not be in your best interest to turn over your laptop.  If you are confronted by your R.A. for coming home highly intoxicated, it doesn’t help to voluntarily turn over any alcohol, because that gives the authorities actual physical evidence.  The police might imply that your cooperation will result in leniency, but such promises are usually forgotten when the case reaches the prosecuting attorney.

Steve Graham is a criminal defense lawyer who represents many college students accused of crimes.