Releaf Magazine

Driving Under the Influence of Marijuana

While marijuana laws have become lax in recent years, a "Marijuana DUI" can still get you in a lot of trouble. by Monica Steiner, Contributing Author


The often tragic consequences and harsh legal penalties for driving under the influence of alcohol are well publicized. What many people don’t realize is that it is also illegal and punishable in all 50 states to drive under the influence of marijuana (or a combination of alcohol, marijuana, or other drugs).

Laws defining what it means to be “under the influence” of marijuana vary by state, as do applicable punishments.

Any amount = under the influence. In some states, any amount of marijuana in the driver’s system will conclusively establish that the driver was under the influence.
Above the threshold = under the influence. In other states a driver who is above a certain blood or urine concentration level will be considered under the influence.
The defendant’s behavior or actions= under the influence. A minority of states require the prosecutor to prove that the driver was under the influence, by pointing to his behavior or driving, regardless of the amount of marijuana in the driver’s system.

States also differ in their definitions of "driving." For example, in many states, a DUI charge can result from merely sitting in a stationary car while under the influence. Whether this definition of “driving” applies to you depends on the law of the state where you live, and is discussed further below.
What it Means to be "Under the Influence"

In most states, being “under the influence” means that the driver is incapable of driving safely due to the effects of drug or alcohol use.

As you are probably aware, when it comes to alcohol, a blood alcohol level of 0.08 percent of the driver's blood, by volume, will conclusively establish that the driver is under the influence (if the level is less, the prosecutor can still point to the driver's actions to prove that he was under the influence). In some states, the blood alcohol level threshold is even lower if the driver is a minor.

When marijuana is involved, however, states have different approaches to establishing that the driver was under the influence, as shown below.
Per se laws

In states with so-called “per se” DUI laws, any amount of marijuana in the driver’s system at the time of the offense will conclusively establish impairment. In these states, a prosecutor will not need to present any further evidence (such as behavior consistent with being under the influence or unsafe driving) in order to establish that the driver was under the influence.

State per se laws often include marijuana metabolites—compounds left over when the body metabolizes (or processes) marijuana—which can remain in a person’s body for days, weeks, or longer after marijuana use. While metabolites indicate that the person ingested marijuana at some point in the past, they do not indicate how long ago, or necessarily point to current impairment. Even so, state per se laws that include metabolites accept their presence as conclusive evidence of impairment for the purposes of a DUI charge.
Blood or urine marijuana concentration levels

As they do with blood alcohol thresholds, some states consider a level of marijuana (or marijuana metabolites) in the driver’s blood or urine—usually in nanograms/ liter—as conclusive proof of impairment. As with per se laws, the prosecutor will not need to prove that the driver’s senses were impaired—no need for field sobriety test results, or testimony about the driver’s speech, balance, or poor driving.

In these states, having a concentration level that’s lower than the threshold does not necessarily mean that the driver was not under the influence, however. The prosecutor may still point to the driver’s actions and behavior (such as his driving) to show that the driver was under the influence.
The driver’s behavior or driving

In the minority of states, the prosecutor must always establish that the driver was behaving in a way that showed that he was under the influence of marijuana at the time of the arrest—regardless of (even relatively high) marijuana blood or urine concentration levels. Prosecutors can do this by showing that the driver had impaired balance or speech, or that he was driving erratically—even that he smelled of marijuana.

People are sometimes surprised to learn that the prosecution need not show actual unsafe driving to prove that the driver was under the influence. Merely being under the influence and driving will suffice. For example, suppose you are involved in an accident that you did not cause—your driving was just fine. But the police officer who comes to the accident scene smells marijuana in your car, observes your reddened eyes and tell-tale behavior, and sees half-smoked joints in the ash tray. This may be enough evidence to charge you with driving while under the influence, even though your driving was not unsafe.
Driving as a Medical Marijuana Patient

Eighteen states have made it legal to use marijuana for medicinal purposes, as long as the patient follows the law with respect to amounts, registration, and so on. But no state has gone so far as to say it’s okay to drive after using medical marijuana, even when the patient has scrupulously followed the rules. This can be especially problematic for medical marijuana patients in states that employ per se laws, because as explained, metabolites may remain in the body for some time after use, arguably with no effect on the person's driving.

Medical marijuana patients should know how their state approaches the issue of being “under the influence,” as explained above. For more information on this topic, see Medical Marijuana and Driving.
What Constitutes "Driving"?

Most state DUI statutes consider someone to be a driver within the meaning of the DUI law when he is “in actual physical control” of the vehicle at the time of arrest. This definition is broader than our common idea of “driving” or “operating” a vehicle. The policy goal behind this broad-reaching definition is to keep people from doing a wide range of vehicle-related activities while under the influence, thus increasing safety for other motorists, pedestrians, and property along roadways.

Because of this expansive definition, most state statutes do not limit DUI charges to people who are operating moving vehicles. Being “in actual physical control” of the vehicle can include being in control of a parked car, if the judge believes that the defendant intended to begin driving, or even that the defendant had already driven the vehicle before being found by the arresting officer.

If a DUI can include more than simply driving, what constitutes “actual physical control” of a vehicle? Judges tend to consider a combination of factors, including whether:

the vehicle was on or off
the vehicle was moving or stationary
the vehicle was operable
the keys were in or out of the ignition (and whether the defendant even had access to the keys)
the driver was awake or asleep (was the defendant perhaps “sleeping it off” in a parked vehicle?)
there was any gas in the tank
the vehicle’s gears were engaged, and
the defendant was in the driver’s seat.

Whether you were in “actual physical control” comes down to the judge’s consideration of the specific facts surrounding your case.
Marijuana DUI Penalties

The most common punishments for DUI offenses are a fine, jail (or prison) time, or both. Many states will also impose some length of license suspension or require the use of an ignition interlock device, so that the defendant’s vehicle will not start without a clean breathalyzer sample. Specific penalties for DUI convictions vary by state, though all states impose some combination of the following to punish DUI convictions:

jail (or prison) time
community service
victim impact program participation
home confinement (also known as house arrest)
ignition interlock device use
license suspension
vehicle impoundment or forfeiture, and
drug and alcohol abuse programs.

Within each state, the severity of the applicable penalties in each case usually depends on whether the offense was a first or subsequent violation, and aggravating factors may increase applicable penalties (see below).
Aggravating factors

The following circumstances will increase the penalties that would normally apply to a DUI conviction. These include (but are not limited to):

second and subsequent offenses
a minor in the vehicle at time of offense (sometimes referred to as “child endangerment”)
a minor as the defendant
DUI while driving on a suspended license
DUI while driving a school bus
causing a traffic accident, property damage, bodily injury, or death, and
driving with particularly elevated alcohol or drug content levels

Sentence ranges and mandatory minimum sentences

Although many state statutes list maximum fines, jail time, and license suspension periods, unless the law requires minimum fines, jail time, and suspension, the judge usually has discretion to sentence for periods up to the various maximums. This means that a defendant can theoretically end up with no, or very low, jail time and penalties.

Defendants who have prior DUI convictions probably can’t count on a mild sentence due to the absence of a mandatory minimum sentence in the statute, however. In all states, penalties increase for second and subsequent offenses, and in most states, that means mandatory minimum penalties for these subsequent violations. However, often there’s a “wash out” provision—a rule that effectively makes a prior DUI of a certain age go away for purposes of enhancing subsequent sentences. For example, a mandatory minimum may apply to a current conviction only if the prior conviction was incurred less than five, seven, or ten years ago. When a prior has washed out, the subsequent offense is treated as a first offense for punishment purposes.

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use your nose for anything else…..

Should the Odor of Cannabis Constitute Probable Cause in Florida?
by The Law Office of John Guidry II


Oh the times, they are a changin’

Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”. Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone. It may be that too many “suits” turn out to be jerks, so they just don’t bother. I understand that, and agree. But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida. It has been for almost a year now.

Most people don’t realize this. Medical marijuana is legal in Florida. I’ll keep saying it until everyone takes down the signs asking that we make it legal. It’s legal. Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015. The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.

Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry. It is the effect this law has on probable cause that should concern we citizens. Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”. Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed? Yea, I smell weed too, let’s search this place”. Five times out of ten, this odor is detected after a citizen denies the officer permission to search. Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.

For years now, we defense attorneys have tolerated fabricated odor of cannabis searches that never reveal cannabis. It sounds funny, but some officers have searched a vehicle based upon the odor of cannabis–only to find no marijuana. Shocking, I know. The only drugs found on these “odor of cannabis searches” were cocaine or heroin or oxycodone—none of which smell like weed. Not surprisingly, most prosecutors buy into this odor of cannabis excuse. Even judges buy into it, reasoning that, “well, I guess the defendant had recently smoked weed, that’s probably what the officer smelled, so I’m going to find probable cause for the search based upon the officer’s detection of the odor of cannabis”. Sure, there are several logical objections to such reasoning, if you can find a judge interested in logic (there are plenty). For example, the odor of burnt cannabis is only evidence of a completed crime (the weed is now consumed by fire, duh), so the odor is not evidence that someone is currently committing the crime of possession of cannabis. Furthermore, in cases where a search is conducted based upon the odor—but no weed is recovered–the officer’s nose obviously isn’t accurate enough to detect the presence of cannabis. So, what business does the court have relying on such an inaccurate nose to find probable cause? We have K9’s who, we all can agree, are far better at detecting the scent of drugs than humans—yet several courts have suppressed evidence when it can be shown that the particular K9 utilized is not accurate enough to form probable cause (yes, the police must keep records of their K9’s “accuracy”, a story for another day). Why should a human be treated any different than a K9?

Well, I’m a little bit off track, as usual. We’re talking about searches. We’re talking about the government’s right to obtain a search warrant of your underwear drawer because they smell cannabis outside your home. We’re talking about a speeding ticket that turns into a 4 hour ordeal in which the panels of your dashboard have been broken loose because some cop smelled weed when you rolled down your window (should have rolled down those windows the minute you saw the flashing lights, I’m just saying).

Prior to January 1, 2015, Florida courts have routinely held that the smell of cannabis indicates criminal activity. As we said before, any form of cannabis was illegal. But now, the possession of cannabis is no longer illegal. Now, cannabis possession is legal if possessed under Florida Statute 381.986. Now, the odor of this legal substance should no longer constitute probable cause to search anything.

How Florida’s cannabis statute will impact the determination of probable cause remains to be seen, but several states have had medical marijuana for a while now, so we can gain some wisdom from their decisions. For example, in Arizona, their appellate court addressed “the effect of the Arizona Medical Marijuana Act (AMMA) on determinations of probable cause. That Act renders possession, cultivation, and use of marijuana lawful under some circumstances. Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons state below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.” State v. Sisco, 359 P.3d 1 (2015).

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DEA and police raid Westford family home in marijuana oil bust, arrest six By Nik DeCosta-Klipa

Four Westford family members, along with two family friends, were arrested Wednesday on a litany of drug charges after federal and local law enforcement raided their 3,855-square-foot home in a marijuana oil lab bust.

According to the Middlesex District Attorney’s office, Westford police and a Drug Enforcement Administration drug lab team arrived at the Mountain View Lane home at 8 a.m. to execute a search warrant.

Upon arrival, officials said they found a large basement lab manufacturing butane honey oil, a yellow honey-like substance which contains a more potent level of THC, the active ingredient in marijuana.

The process, in which butane liquid is put through marijuana buds, to create the yellow honey-like drug, also known as hash oil or dabs, can potentially cause hazardous or fatal explosions, according to the New England DEA head Michael J. Ferguson.

Husband and wife Bradley Heath Sr., 63, and Diane Heath, 61, as well as their son Bradley Heath II, 22, and daughter Linley Heath, 28, were charged with possession with intent to distribute and the manufacturing of a Class C substance, as well as conspiracy to violate drug laws.

The Heath son, who allegedly sold the drug under the name “Gold Street Extracts,” was also charged with distribution of a Class C substance, possession with intent to distribute a Class D substance, possession of a Class B substance, and operating a motor vehicle with a suspended license, according to officials.

Ayer District Court Judge Michael Brooks set Bradley Heath II’s bail at $30,000 cash on this case and detained him without bail on a probation violation from a previous case. Bail for the other three Heath family members was set at $500.

Westford resident Lyndsey Holston, 20, who police said is Bradley Heath II’s girlfriend, was also arrested in the case for manufacturing, distrbuting, and possessing with intent to distribute a Class C substance, as well as a conspiracy charge. Her bail was set at $1,000.

Twenty-two-year-old Groton resident Prachi Joglekar, a friend of Linley Heath, was also arrested for possessing with intent to distribute and manufacturing a Class C substance, as well as conspiracy charge. Joglekar’s bail was set at $500.

The defendants pleaded not guilty Wednesday. All six due back in court June 27.

“Their alleged lab operations compromised the safety and security of their neighbors, as well as the law enforcement officials who arrested the suspects today,” Middlesex District Attorney Marian Ryan said in a statement.

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NJ Weedman fighting the fight

NJ Weedman takes to the radio, blames raid of his joint on retaliation

By Anna Merriman | For

TRENTON – It's been less than a week since Ed "NJ Weedman" Forchion was arrested at his combination eatery-temple in Trenton, but the outspoken marijuana advocate has taken already taken to the airwaves to tell his story.

Forchion spoke with New Jersey 101.5 Weedman's trip as a marijuana advocateradio hosts Deminski and Doyle Tuesday afternoon and called out state Senator Ray Lesniak and the Trenton Police Department for "retaliation."

That "retaliation" came in the form of a raid, Forchion said on the radio station. He was arrested along with 10 other people at his "joint" on East State Street last Wednesday and charged with possession of paraphernalia and drug possession for 5 ounces of marijuana that he'd received as a donation, he said.

Forchion said that he believes the police and prosecutor's office is acting out against him for setting up security cameras to film police activity outside his establishment and for filing a lawsuit against the city earlier this year.

Weedman's trip as a marijuana advocate

Ed Forchion, aka NJ Weedman, has been a protestor, candidate, restauranteur and defendant since the 1990s.

"I was told that this came down from high above," Forchion said Tuesday of the order to raid his joint. He went on to say that he thinks Lesniak may be behind the raid and that the senator is representing the police department.

"He's opposed to legalization," Forchion said.

At least part of the reason for his retaliation theory, Forchion said, is that he never had problems before February – and everyone knows he smokes marijuana.

"I have a bong sitting next to me right now," he said in the radio interview.

It wasn't until the February complaint, he said, that police and prosecutors started paying his establishment more attention.

Now, fresh out of jail, Forchion is inviting Mercer County Acting Prosecutor Angelo Onofri to personally handle the prosecution side of his case, while Forchion represents himself.

"I want you to do this... I want you to take this beating," he said in challenging Onofri.

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Eager To Imprison Medical Marijuana Users, Prosecutors Hide The Truth From Jurors

Imagine you are a juror in the federal trial of five people charged with growing and distributing marijuana in northeastern Washington. The prosecution cannot present any direct evidence that the defendants sold marijuana to anyone, and the defendants say they were growing all 74 plants for their own personal use. A bit of arithmetic reveals that the total number of plants comes to just under 15 per defendant, which happens to be the presumptive limit for patients under Washington’s medical marijuana law. Yet no one says anything about medical marijuana during the trial.

What you don’t realize is that the defense attorneys have been forbidden to discuss their clients’ reliance on Washington’s law, since federal law bans marijuana for all purposes. You also do not realize that each of the defendants faces at least 10 years in federal prison, because their lawyers are not allowed to talk about that either. And despite your suspicion that the defendants were growing marijuana for medical use, you are told that your job is to determine whether they violated federal law, which they undeniably did.

That is the situation jurors will confront when they sit down to hear the evidence against the Kettle Falls Five, whose trial is scheduled to begin on February 23 in Spokane. Larry Harvey and his co-defendants—his wife, Rhonda Firestack-Harvey; Rhonda’s son, Rolland Gregg; his wife, Michelle Gregg; and a family friend, Jason Zucker—are gambling that at least one juror will figure out what is really going on and vote for acquittal in the interest of justice, federal law be damned. That is their only hope of avoiding prison unless a federal judge agrees with defense attorneys that the prosecution is barred by a spending restriction Congress enacted last month or the feds suddenly decide to drop a case they have doggedly and inexplicably pursued since August 2012.

The Kettle Falls Five outside the federal courthouse in Spokane (Image: CNN)

On the face of it, the Kettle Falls Five case defies Justice Department policy. Since 2009 the DOJ has been saying that prosecuting patients who use marijuana in compliance with state law “is unlikely to be an efficient use of limited federal resources.” Deputy Attorney General James Cole confirmed that policy in an August 2013 memo that extended the department’s forbearance to state-licensed suppliers of recreational marijuana, provided their activities do not implicate “federal enforcement priorities.” As a result of this policy, businesses growing far more than 74 plants operate openly throughout Washington, including the very city where Harvey et al. are to be tried, without federal interference.

That situation makes the feds’ persistent pursuit of the Kettle Falls Five all the more puzzling. By federal standards, this would be a small-time case even if the defendants were supplying the black market, and there is no real evidence that they were—no customers, no deliveries, no undercover buys, no neighbors reporting suspicious visitors. All five have medical conditions that their doctors said could be treated with marijuana, including gout, osteoarthritis, wasting syndrome, and chronic pain from severe back injuries. They made no attempt to hide their plants, which they grew outside the Harveys’ house in a garden marked by flags bearing the green-cross symbol for medical marijuana. They clearly strove to stay within the state’s presumptive limit of 15 plants per patient, although Washington’s law would have allowed them to argue that more was medically necessary.

Harvey et al.’s lawyers, in a February 2014 letter to Attorney General Eric Holder, said Michael Ormsby, the U.S. attorney for the Eastern District of Washington, was unimpressed by the evidence of medical use. “In a meeting with the United States Attorney in late 2012,” they wrote, “a member of the defense team went to painstaking lengths to explain the exact nature of the defendants’ medical marijuana usage. A dual-board-certified doctor who is internationally recognized as being an expert witness on cannabis as medicine described in detail how the amount and various forms of marijuana seized [are] clearly indicative of patient consumption. Unfortunately, the USAO insists on proceeding with this unnecessary indictment at great expense to taxpayers and against the DOJ’s direct orders.”

In framing that indictment, prosecutors made sure the defendants would qualify for prison sentences of at least 10 years. Speculating about previous harvests, they charged Harvey et al. with growing a total of at least 100 plants, which triggers a five-year mandatory minimum. They also noted that the Harveys, like many people in eastern Washington, had guns in their house, which according to the government means the defendants possessed firearms “in furtherance of” a drug trafficking crime. That qualifies them for another five years, and the two sentences must be served consecutively. Three other charges in the indictment—conspiracy to grow marijuana, distribution of marijuana, and “maintaining a place…for the purpose of manufacturing, distributing, and using marijuana”—could make the defendants’ sentences even longer.

Although it seems mindlessly vindictive, such charge stacking is standard operating procedure for prosecutors after a defendant turns down a plea deal. Last year Harvey et al.rejected a deal that would have guaranteed them sentences of no more than three years. “The family is convinced that they haven’t done anything wrong,” says Phil Telfeyan, a lawyer who represents Rolland Gregg, “so pleading guilty to any federal felony is out of the question. They are good, law-abiding citizens. Why would they go to prison for a year, or even a month?”

The original indictment included an additional count of possessing marijuana with the intent to distribute it, but prosecutors dropped that charge, possibly because raising the issue of intent would have invited rebuttal testimony about medical use. “They removed that charge so they could hide from the jury the medical marijuana [recommendations] that all five of these individuals had,” Telfeyan says. “I think the DOJ was worried that when you have an intent-to-distribute charge, motive becomes relevant: Why were these people growing marijuana? They don’t want the jury to hear the truth.”

Despite repeated assurances from Holder and Cole that they are not interested in targeting medical marijuana users, prosecutors seem determined to see the case through, unswayed even by the news that Larry Harvey has been diagnosed with terminal pancreatic cancer. “You’ve got a family that’s dealing with something very, very difficult in their lives, and they also are facing minimum 10-year prison sentences for doing something that is not illegal under state law,” says Telfeyan. “DOJ enforcement priorities at the top level should set guidance, but on the ground individual prosecutors end up having a ton of discretion.”

Larry and Rhonda Harvey (Image: Americans for Safe Access)

Larry and Rhonda Harvey (Image: Americans for Safe Access)


Assuming there is no last-minute change of heart at Ormsby’s office, U.S. District Judge Thomas Rice still can prevent a trial if he decides a new congressional edict requires that result. The omnibus appropriations bill enacted by Congress last month includes a rider that tells the Justice Department it may not spend money to “prevent” states from “implementing” their medical marijuana laws. One could argue that the Kettle Falls Five case does not have that effect, since it does not stop Washington from making medical exceptions to its own marijuana laws. But in motions for dismissal filed last week, lawyers for the defendants argue that prosecutions like this one prevent Washington from fully implementing its law.

“Prosecuting persons who may be operating in compliance with state medical marijuana laws prevents states from implementing their own laws in at least three ways,” writes Robert Fischer, a federal public defender who represents Larry Harvey. Fischer argues that such prosecutions create uncertainty about whether patients will be able to obtain their medicine, “take away Washington’s authority to determine for itself whether someone is in compliance with its laws,” and deny the medical value that Congress acknowledged by approving the spending restriction. Fischer also notes that during the House debate over the rider both supporters and opponents said it would bar prosecution of patients who grow marijuana for their own medical use.

Even if federal prosecutors doubt that Harvey et al. were complying with state law, Telfeyan argues in a separate motion, it is not their job to make that call. Congress has told the Justice Department it must let Washington implement its medical marijuana law, which necessarily includes determining who is complying with it. “DOJ’s attempt to decide which Washington businesses and citizens violate state law and which do not inserts the federal government into the business of interpreting state law, resulting in disastrous consequences for the authority of local communities,” he writes. “Such interpretation of state law by the DOJ is exactly what Congress has prevented in Section 538 of the Appropriations Act.”

In a response filed on Thursday, prosecutors argue that Harvey et al. exceeded Washington’s limits on “collective gardens,” which are allowed no more than 45 plants under a 2011 provision explicitly authorizing such operations “for the purpose of producing, processing, transporting, and delivering cannabis for medical use.” But the Harveys never claimed to be relying on that provision; instead they looked to the affirmative defense that patients have had for home cultivation since 1999, when Washington’s medical marijuana initiative took effect. The default limit for that is 15 plants per patient.

Even if we assume that five patients growing plants together in one place must comply with the rules for a collective garden (which is not what the law says), that does not mean federal prosecution is appropriate. After deputies from the Stevens County Sheriff’s Department found 74 plants on the Harveys’ property in August 2012, they consulted with the local prosecuting attorney, who advised them to treat the grow as a collective garden. The deputies therefore confiscated 29 plants, bringing the total down to 45, which they had been advised was the legal limit. They did not arrest the Harveys, who have never faced local charges. As far as local officials were concerned, they were now complying with state law, and that was that. The feds took a different view. According to Fischer and Telfeyan, this is precisely the sort of second-guessing that Congress sought to prevent by telling the Justice Department not to interfere with state medical marijuana laws.

Telfeyan is not very hopeful that Judge Rice—who worked in the office that is prosecuting the Kettle Falls Five from 1987, the year after he graduated from law school, until he was appointed to the federal bench in 2012—will be sympathetic to the argument that the medical marijuana rider compels the Justice Department to drop the case. Assuming the trial proceeds as planned next month, Telfeyan says, “I am hoping that jurors will notice something’s not right here”—that they will wonder, whenever Rice stops the defense from eliciting testimony about the defendants’ motivation for growing marijuana, “Why are defense attorneys being cut off?”

Even if jurors surmise what is going on, that does not necessarily mean they will vote to acquit. Polling shoppers at a local mall, Telfeyan found that many thought prosecuting marijuana growers was “ridiculous,” especially given the current reality of a state-licensed, federally tolerated cannabis industry. But most of the people he buttonholed said they would nevertheless feel obligated as federal jurors to vote “guilty” if the defendants had in fact grown marijuana. Then again, Telfeyan says, “we actually need just one juror to feel convinced they should vote ‘not guilty.’ If the jury is hung in this case, the DOJ is going to have a really hard time justifying a retrial.”

[This article has been updated with information about the prosecution's response to the motions for dismissal.]



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AMarijuana Arrest in the US – What’s the Big Deal?

stop and frisk marijuana new york

Many marijuana-related arrests in the US may not result in a prison sentence; but this does not mean there is no damage done.

In 2013, US public support swung in favor of reforming cannabis laws for the first time, with 58 percent of Americans supporting the legalization of marijuana, according to a Gallup poll. This attitudinal shift sits in stark contrast to the most recent statistics on marijuana-related arrests in the country; across the United States, nearly 750,000 people were arrested in 2012 -- equating to a marijuana-related arrest every 42 seconds -- with 658,231 (88 percent) of those individuals charged for possession only.

Based on figures cited in the 2012 book Marijuana Legalization: What Everyone Needs to Knowapproximately 40,000 inmates in the US penitentiary system have a conviction related to marijuana, with an estimated half of those incarcerated solely for a marijuana offence (and less than 1 percent for possession alone). Thus, while marijuana arrests surge, they seemingly rarely translate into serving time.

This is not to say, though, that there is little or no impact on the person’s life if no sentence is ultimately received. With or without a conviction or custodial sentence, a marijuana arrest increases the vulnerability to severe, life-changing consequences -- from diminishing education prospects and employment security, to housing opportunities and immigration status.

The devastation that exposure to the criminal justice system can cause is poignantly depicted in the below video, “A Marijuana Arrest”. Based in New York City (NYC), the short film shows the troubling case of an individual arrested for marijuana possession. Owing to the arrest -- and irrespective of the fact that they were not, in fact, in possession and weren’t charged due to the lack of evidence -- the individual ended up losing their job.

Although New York effectively decriminalized the possession of small amounts of marijuana in 1977, there is a significant loophole in the legislation regarding possession.

In short, “private” possession of up to 25 grams of marijuana is tolerated, on the condition that it is kept out of sight. On the other hand, “public” possession states marijuana cannot be possessed in open view, regardless of the amount. If this law is not complied with, a criminal misdemeanor charge can be issued. As cited in the video, the ambiguous nature of this statute – combined with exploitation by the police -- has contributed, in part, to the rise in marijuana arrests across NYC, with an increase in arrests over a 20 year period from 812 (in 1992) to 39,320 (in 2012).

As the video notes, the motives behind police enforcement of the public possession law are highly questionable at times. Arguably driven by the requirement to meet a certain (illegal) arrest quota, a common police practice is to request “suspect” individuals to empty their pockets. If marijuana is found on the person, the possession moves from private to public. In such an instance, the police are effectively engineering marijuana misdemeanors.

Stemming from the police manipulation of such searches, many individuals are unfairly ensnared in the already overstretched criminal justice system. Attorney Scott Levy notes how these low-level marijuana arrests are “clogging [the] court system,” adding that while marijuana misdemeanors are “supposed to be brought to trial within 60 days [in New York] ... 60 days can become 600 days.”

The potential damages associated with cannabis arrests, are furthermore (and sadly unsurprisingly), concentrated among certain ethnic groups who are already in some cases suffering from societal marginalization. As demonstrated by a comprehensive report by American Civil Liberties Union (ACLU) in 2013, on average, black people are 3.7 times more likely to be arrested for marijuana offences than white people, despite their long history of comparable usage levels.

Racial discrimination is even more explicit in specific areas across the US, with black people more likely to be arrested in Iowa (8.3 times), Washington DC (8 times), Minnesota (7.8 times) and Illinois (7.6 times).

It is clear that avoiding incarceration for cannabis does not mean that one has successfully escaped an event that could prove extremely detrimental to their future. The magnitude of the level of harm caused by a marijuana arrest alone must be considered, particularly in states where these laws are being disproportionately applied and leading to the increased marginalization of certain communities. Reform initiatives that are currently being brought into play in the US will help address these issues, but given the scale of the problem, there is a long way to go to combat these issues.



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750,000 people arrested for Marijuana each year. Here Is the Reason “MONEY”


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Confusion Over Massachusetts Medical Marijuana Law Leads To Patient Arrests

MASSACHUSETTS: Nathan Marrin was stunned when West Springfield police seized his marijuana during a traffic stop last month and slapped him with a $100 citation. After all, he had shown them a doctor’s letter indicating that he needed the drug to treat his anxiety.

In Spencer, Andrzej Conner is still furious about his arrest last May for growing 37 marijuana plants in a locked basement utility room. The 27-year-old tractor salesman had a similar letter from his doctor certifying he was approved to cultivate and use cannabis to relieve “debilitating” anxiety.

Persistent confusion surrounding Massachusetts’ 18-month-old medical marijuana law has led to criminal charges or civil citations against people who thought they were playing by the rules. While no state agency is tracking the numbers, more than a dozen cases have been described to the Globe by people who have been charged or cited or by the lawyers who represented them.


Via MJ News Network

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Washington D.C. Takes Major Step Toward Ending Marijuana Possession Arrests

Wednesday: Councilmembers to Vote on Decriminalization Bill that Would Reduce Racial Disparities and Re-Prioritize Law Enforcement Resources

With Support of Mayor and Supermajority of Councilmembers, Marijuana Decriminalization Appears Imminent

D.C. lawmakers will vote Wednesday on legislation that would eliminate criminal penalties under District law for the possession of one ounce or less of marijuana for personal use during a meeting of the Committee on the Judiciary and Public Safety. The panel of five Councilmembers is expected to approve the measure. The bill would next go before all thirteen Councilmembers for final consideration.

The “Simple Possession of Small Quantities of Marijuana Decriminalization Amendment Act of 2013 (Council Bill 20-409)” would eliminate criminal penalties and instead subject a person in possession of one ounce or less of marijuana to a civil fine. The legislation was introduced in July 2013 by Councilmember Tommy Wells (D-Ward 6) with the support of ten out of thirteen Councilmembers.

WHAT: Committee on Judiciary and Public Safety to Mark-up Bill Decriminalizing Marijuana
WHEN: Wednesday, January 15, 2014 at 11:30AM
WHERE: John A. Wilson Building; Room 412; 1350 Pennsylvania Avenue, NW

Last year, the American Civil Liberties Union and the Washington Lawyers’ Committee on Civil Rights and Urban Affairs released groundbreaking reports documenting enormous racial disparities in arrests for marijuana possession in D.C. These reports found that the majority of all drug arrests in the District are for simple possession of marijuana and the vast majority of those arrested are African American. Every year, thousands of people are arrested in the District of Columbia for the possession of marijuana. African Americans in D.C. are eight times more likely to be arrested for marijuana possession than white people – even though government surveys show that both groups use marijuana at similar rates.

“Marijuana possession arrests have disproportionately criminalized African American residents and wasted millions of taxpayer dollars,” said Grant Smith, policy manager with the Drug Policy Alliance’s Office of National Affairs. “This legislation represents a critical first step toward bringing D.C. law into step with public opinion and common sense.”

A poll conducted in April 2013 by Public Policy Polling, and commissioned by the Drug Policy Alliance and Marijuana Policy Project, found three out of four D.C. voters support changing District law to replace criminal penalties for possession of limited amounts of marijuana with a civil fine similar to a traffic ticket. Furthermore, more than 60 percent of D.C. voters in the survey would support a ballot measure similar to those approved by voters in Colorado and Washington in November, which made marijuana legal for adults and directed state officials to regulate and tax marijuana similarly to alcohol. National surveys conducted last year by Gallup and the Pew Research Center found that, for the first time in 40 years of polling on the issue, a majority of Americans support making marijuana legal. The Gallup poll in October found 58 percent support and the Pew Research Center poll in April found 52 percent support. Last week, a CNN/ORC poll found 55 percent support nationwide for making marijuana legal.

During public hearings chaired last October by Councilmember Wells, witnesses criticized the disproportionate enforcement of marijuana laws on African Americans in the District and supported eliminating criminal penalties for possession. However, the Drug Policy Alliance and other witnesses urged Councilmembers to eliminate or significantly reduce the proposed $100 civil fine. The Drug Policy Alliance urged that a $100 fine would be too burdensome for poor residents and that African Americans would continue to be disproportionately punished for marijuana possession. Councilmember Wells is expected to lower the fine for possession to $25 when Councilmembers consider the legislation tomorrow.

In a letter delivered to Councilmember Wells in September, the Drug Policy Alliance and other community groups urged the elimination of the fines for possession and the decriminalization of home cultivation of a small quantity of marijuana. The letter also urged the Council to destroy all marijuana arrest and conviction records maintained by the D.C. government in order to prevent such a record from serving as a barrier to employment and other opportunities for thousands of D.C. residents who currently have a criminal history for marijuana law violations. In December, Councilmember Wells held a public hearing on legislation introduced by Councilmember David Grosso (I-At Large) that would remove from the public domain many marijuana arrest and conviction records maintained by the D.C. government.  Advocates have praised Councilmember Wells’ leadership on addressing the harms of failed D.C. marijuana laws.

“All it takes is a single arrest for a small amount of marijuana to set in motion years of denied jobs, housing applications and other basic components to leading a self-sufficient life,” said Smith.  “This legislation would help end harmful marijuana arrests and reverse decades of lives derailed by enforcement of marijuana prohibition.”

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Defendant not ready to give up marijuana


A judge’s offer to allow a drug defendant the chance to stay out of prison if he’d give up marijuana might have just gone up in smoke.

Hamilton County Common Pleas Judge Melba Marsh says she was astonished by the response to her offer from 19-year-old Damaine Mitchell. The Cincinnati Enquirer reported Thursday she told Mitchell that instead of facing prison time for selling marijuana, he could agree to a drug treatment program, requiring him to stop smoking pot.

“That’s going to be a challenge,” Mitchell replied in court. “I like smoking weed. I have been smoking weed since I was like 10 years old.”

The judge offered to give him some time: maybe until Christmas, or New Year’s, even Easter?

“I won’t want to,” he replied.

Finally, he said he could try to quit, but made a request: “I know this is probably not the right question to ask: Can I get a little time (to) at least get one more joint in?”

The judge ruled quickly on that one.

“No. You can’t have one more joint for old time’s sake,” she said, saying she wasn’t expecting to get a request for government-sanctioned drug use in jail.

Mitchell was being held in jail on an unrelated trespassing charge. The judge ordered him to return to her court next week, after the other charge is dealt with, before she decides what to do with his case.

A message left Thursday for Mitchell’s attorney wasn’t immediately returned.

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