Marijuana Law, Policy & Reform

Arizona Supreme Court clarifies that state medical marijuana law includes resins and hashish

Last year, an intermediate appellate court in Arizona ruled that a medical marijuana patient could still be criminal prosecuted for possession of hashish because, in the court's view, the Arizona Medical Marijuana Act retained a distinction between cannabis and marijuana and preserved the criminality of the former.  But yesterday, in Arizona v. Jones, No. CR-18-0370-PR (Ariz. May 28, 2019) (available here), the Arizona Supreme Court ruled unanimously that "AMMA’s definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish."  Here is an excerpt from the tail end of the opinion:

AMMA appeared on the 2010 ballot as Proposition 203.  The accompanying ballot materials stated Proposition 203’s purpose was to “protect patients with debilitating medical conditions . . . from arrest and prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010 Publicity Pamphlet 73 (2010).  Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including “cancer, glaucoma, . . . amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of Alzheimer’s disease,” including “relief [from] nausea, vomiting and other side effects of drugs” used to treat debilitating conditions.  Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form.  Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount....

We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA.  We reverse the trial court’s ruling denying Jones’s motion to dismiss, vacate the court of appeals’ opinion, and vacate Jones’s convictions and sentences.

Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization

Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs.  The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:

In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.

The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older.  The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.

The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress.  The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue.  Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.

This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."

Maine Supreme Court rules federal prohibition preempts effort to make employer subsidize an employee’s medical marijuana

As reported in this AP article, "Maine employers don’t have to pay for medical marijuana under the state workers’ compensation system because federal law supersedes state law, the state supreme court ruled Thursday."  Here is more on this state court ruling and some national context:

The court concluded in a 5-2 decision that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state medical marijuana law. Existing case law demonstrates that an individual’s right to use medical marijuana under state law “cannot be converted into a sword that would require another party” to engage in conduct that violates current federal law, Justice Jeffrey Hjelm wrote for the majority.

The legal case focused on whether a paper mill must pay for medical marijuana prescribed for a worker who was disabled after being hurt on the job in 1989. Madawaska resident Gaetan Bourgoin won an appeal to the Workers’ Compensation Board after arguing that marijuana is cheaper and safer than narcotics. But the Twin Rivers Paper Co. argued that it shouldn’t be required to cover the cost of medical marijuana and that doing so put it in violation of federal law.

The Supreme Judicial Court concluded that the Maine Legislature’s exemption of medical marijuana patients from prosecution under state law “does not have the power to change or restrict the application of federal law that positively conflicts with state law.”

Two dissenting justices wrote that the compelling story of how the injured worker was weaned from opioids by use of medical marijuana justified requiring the reimbursement. “The result of the court’s opinion today is to deprive (the worker) of reimbursement for medication that has finally given him relief from his chronic pain, and to perhaps force him to return to the use of opioids and other drugs...,” Justice Joseph Jabar wrote....

At least five states — Connecticut, Maine, Minnesota, New Jersey and New Mexico — have found medical marijuana treatment is reimbursable under their workers’ compensation laws, according to the National Council for Compensation Insurance. Florida and North Dakota, meanwhile, passed laws last year excluding medical marijuana treatment from workers’ compensation reimbursement.

The full 50-page Maine Supreme Judicial Court ruling is available at this link.  Here is how the majority opinion gets started:

After sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain.  He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the medical marijuana.  On this appeal from the decision of the Appellate Division affirming that award, we are called upon for the first time to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA).  We conclude that in the narrow circumstances of this case — where an employer is subject to an order that  would require it to subsidize an employee’s acquisition of medical marijuana — there is a positive conflict between federal and state law, and as a result, the CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate Division.

Delaware court examines whether, after marijuana possession decriminalized, felony charges are proper for possessing gun with marijuana

This local article from the First State, headlined "Marijuana decriminalized but still triggers gun felony," spotlights an interesting case and this lower court ruling concerning the intersection of marijuana reform and guns laws.  Here are the details:

Delaware judge is putting lawmakers on notice that they may want to take another look at a law that still makes it illegal for someone to have a handgun while carrying a decriminalized amount of marijuana.

In a recent ruling, Superior Court Judge Paul R. Wallace pointed out that the legislature may not have realized it left on the books a law that bars Delawareans from simultaneously possessing a handgun and any amount of marijuana, even though less than an ounce of marijuana was decriminalized in Delaware in 2015....

The legal conundrum arose in February 2016 when the Wilmington police's drug unit went to an apartment in the unit block of 31st Street to arrest 21-year-old Imeir Murray's mother who was wanted on a probation violation.... Police smelled burnt marijuana and saw a marijuana grinder, an ashtray and a blunt in plain sight in Murray's bedroom, the warrant said. Officers also found a loaded Walther PK380 handgun on an upper shelf of the closet....

Authorities initially believed the marijuana was slightly more than an ounce, but later learned through laboratory testing that it was only 0.798 ounces, or 22.63 grams, which is a civil violation punishable by a $100 fine that can be paid like a traffic ticket, according to Wallace's opinion. At the police station, Murray and the woman in the bedroom admitted to possessing marijuana, but said the handgun was not theirs. Murray told police he had found the gun in his closet a few days earlier and had asked everyone in the apartment if it belonged to them, but no one took ownership, the warrant said.

Murray was arrested and charged in a grand jury indictment with possession of marijuana, a misdemeanor, and possession of a firearm by a person prohibited, a felony. He was legally allowed to own a firearm, except for a state law enacted in 2011 that says one cannot have a semi-automatic firearm or handgun while possessing a controlled substance.

"It is undisputed that the amount of marijuana found in Murray's room exposes him to, at most, a civil marijuana possession violation," Wallace wrote in his April 13 opinion. "It is disputed what legal effect that fact has on the two charges for which Murray was indicted and faces trial in this Court."

Murray's attorney, Matthew Buckworth, argued that the firearm charge should be dismissed because the firearm statute wasn't intended to apply to someone possessing under an ounce of marijuana for personal use. "It is not fair for someone to have the potential to be felonized for an offense that would otherwise be OK," Buckworth said. "It was never the intent of the legislature to criminalize that behavior."

Wallace disagreed with Buckworth, saying he must apply the law as it currently reads. "Sure, it's conceivable that if it ever did, the legislature might choose to eliminate non-criminal marijuana possession as an element of that compound weapons crime," Wallace wrote. "But, the legislature has not done so. And, this court cannot do so in its stead."...

Murray's case went to trial in January, and he was found not guilty of the firearm charge, after his attorney argued the firearm in the closet did not belong to Murray. The judge found him liable for a $100 civil violation for the possession of less than an ounce of marijuana. Even though he was found not guilty of the firearm charge, Wallace decided to still write a court opinion after the fact in April. That signaled to lawmakers a need to take a second look....

Buckworth said he is hopeful the legislature will make changes to the firearm charge since they likely never imagined a scenario would arise like it did for Murray. "I think changing the law is so important because he's a very good kid," Buckworth said. "He has a full-time job, and this could have really messed him up. That doesn't seem like the intent of the legislation."

New Textbook on Marijuana Law, Policy, and Authority

I’m happy to announce that my first-of-its-kind textbook on Marijuana Law, Policy, and Authority will soon be published by Aspen. It will be out in April (in e form) and May (in print). The teacher’s manual and a companion website will be available soon thereafter. Many thanks to Doug and others who have provided helpful feedback on this book over the last 2.5 years!

The book covers a lot of ground, befitting a field that implicates so many different areas of law. The first chapter of the book is now available on SSRN. That chapter provides more details about the book’s coverage and approach, and it also explains why this is such an interesting and worthwhile area of law to study – and not just for those who are interested in practicing in this burgeoning field.

Not coincidentally, I will be posting more this month (both here and at Prawfsblawg) on topics drawn from the book. My first post at Prawfsblawg briefly laid out the case for teaching and writing about marijuana law. Even though most people who read this blog are already sold on the subject, I’ll copy the relevant passage here:

“For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.”

In the coming weeks, I will blog about some of the questions noted above. In the meantime, if you are interested in teaching a course or a unit on any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

Colorado Supreme Court affirms statutory interpretation permitting dismissal of medical marijuana user

As reported in this local article, a long awaited Colorado Supreme Court ruling concerning application of the state's employment laws for marijuana user finally was handed today.  Here are the basics:

The Colorado Supreme Court on Monday affirmed lower courts' rulings that businesses can fire employees for the use of medical marijuana — even if it's off-duty. The 6-0 decision comes nine months after the state's highest court heard oral arguments in Brandon Coats' case against Dish Network. Coats, who had a medical marijuana card and consumed pot off-duty to control muscle spasms, was fired in 2010 after failing a random drug test.

Coats challenged Dish's zero-tolerance drug policy, claiming that his use was legal under state law. The firing was upheld in both trial court and the Colorado Court of Appeals. When the case went to the state Supreme Court, legal observers said the case could have significant implications for employers across Colorado. They also noted that the ruling could be precedent-setting as Colorado and other states wrangle with adapting laws to a nascent industry that is illegal under federal law.

As such, the question at hand is whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — is "lawful" under the state's Lawful Off-Duty Activities Statute. That term, the justices said, refers to activities lawful under both state and federal law.

"Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute," Justice Allison H. Eid wrote in the opinion. The justices said the court will not make a new law. Current Colorado law allows employers to set their own policies on drug use.

Coats' attorney Michael Evans, of Centennial-based The Evans Group, called the decision "devastating."

"For people like Brandon Coats, there really isn't a 'choice,' as MMJ is the only substance both he and his (Colorado-licensed) physicians know of to control his seizures due to his quadriplegia," Evans said. "He has to have it. " A silver lining of the decision, Evans said, is that it provides clarity in a "scary, gray area" of state law.

"Today's decision means that until someone in the House or Senate champions the cause, most employees who work in a state with the world's most powerful MMJ laws will have to choose between using MMJ and work," Evans said in a statement....

Sam Kamin, a law professor at the University of Denver, said the justices' decision comes as no surprise. "It's easy to make too much of this decision," he said. "It really comes down to interpreting this one word in this one statute." As a matter of statutory interpretation, the court got it right, he said.

But for Coats and medical marijuana advocates, this is a blow, Kamin said. Coats was a "dream plaintiff" in that marijuana served as medicine, he said. Coats was rendered a quadriplegic by a car accident and used marijuana to control leg spasms.

The cause likely would land in the hands of the state legislature, Kamin said. "I think (Coats') case is very sympathetic, and I think his case would be quite compelling before the legislature," Kamin said.

The full ruling in this notable state Supreme Court can be accessed at this link, and the only thing I find surprising is why it took the Colorado justices a full nine months to resolve this matter.

In addition, though I fully understand the disappointment felt by Coats and his lawyer, I share Sam Kamin's view that this ruling is not that big a deal. This ruling does not mean state employers must dismiss marijuana users, only that they are not required by statute to keep such users who comply with state law employed. Ultimately, this case only would have been a very big deal if it had come out the other way. And, especially as more and more state legalize medical marijuana, I suspect more and more employers will become more eager to make accomodations for medical marijuana patients.

Connecticut Supreme Court clarifies erasure of past pot conviction comes with state decriminalization

This AP article, headlined "Ruling Clears Way for Marijuana Convictions to Be Erased," highlights a notable (state law) ruling from that echoes issues being confronted in a number of states as marijuana reforms become more common. Here are the basics:

Thousands of people busted in Connecticut for marijuana possession now have the right to get their convictions erased after the state Supreme Court ruled Monday that the violation had been downgraded to the same legal level as a parking ticket.

The 7-0 ruling came in the case of former Manchester and Bolton resident Nicholas Menditto, who had asked for his convictions to be overturned after the Legislature decriminalized possession of small amounts of pot in 2011. "It's a topic multiple states will have to be facing," said Aaron Romano, Menditto's attorney. "Because marijuana is being decriminalized across the United States, this issue needs to be addressed."

Colorado, Washington state, Washington, D.C., and Alaska have legalized the recreational use of pot. Oregon's law legalizing it takes effect in July. Connecticut and 22 other states allow marijuana for medicinal purposes, and 18 states have decriminalized possession of varying amounts.

Last year, Colorado's second-highest court ruled that some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the state law that legalized recreational marijuana. Officials in the other states are grappling with the issue.

In 2011, Connecticut Gov. Dannel P. Malloy and legislators changed possession of less than a half ounce of marijuana from a misdemeanor with potential jail time to a violation with a $150 fine for a first offense and fines of $200 to $500 for subsequent offenses. Menditto, 31, wanted the state to erase his two convictions for marijuana possession in 2009 and a pending possession case. The Supreme Court ruled he could apply to have the two convictions erased, but declined to address the pending case.... The appeal involved the 2011 decriminalization and another state law that allows erasure of convictions of offenses that have been decriminalized....

"The legislature has determined that such violations are to be handled in the same manner as civil infractions, such as parking violations," Justice Carmen Espinosa wrote in the ruling. "The state has failed to suggest any plausible reason why erasure should be denied in such cases."

New York Times highlights and assails employment law challenges in wake of marijuana reform

The Gray Lady continues to do important reporting and advocacy concerning marijuana reform as evidenced by this recent article headlined "Legal Use of Marijuana Clashes With Job Rules." Here are excerpts from this piece:

Brandon Coats knew he was going to fail his drug test. Paralyzed in a car crash when he was 16, he had been using medical marijuana since 2009 to relieve the painful spasms that jolted his body.  But he smoked mostly at night, and said marijuana had never hurt his performance answering customer calls for a Colorado satellite-television provider....  “There are a lot of people out there who need jobs, can do a good job, but in order for them to live their lives, they have to have this,” said Mr. Coats, who is 35. “A person can drink all night long, be totally hung over the next day and go to work and there’s no problem with it.”

But when it comes to marijuana, Mr. Coats and other users are discovering that marijuana’s recent strides toward the legal and cultural mainstream are running aground at the office.  Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies. The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it....

Employers and business groups say the screenings identify drug-abusing workers, create a safer workplace, lower their insurance costs and, in some cases, are required by law.  But marijuana advocates say the prohibitions amount to discrimination, either against people using marijuana to treat a medical condition or against people who smoke it because they simply have the legal right to do so, off the clock and away from the office.   “It wasn’t like I was getting high on the job,” Mr. Coats said. “I would smoke right before I go to bed, and that little bit would help me get through my days.”

On Sept. 30, he will take that argument before the Colorado Supreme Court in a lawsuit challenging his 2010 firing. For years, courts in Colorado and across the country have ruled against marijuana users, saying that companies have the right to create their own drug policies. But legal experts say that if Mr. Coats prevails — he lost 2-1 in an appellate ruling — his case could transform how businesses must treat marijuana users.

Relatedly, the NYTimes had this editorial headlined "Obsolete Zero Tolerance on Pot."

California appeals court reaffirms the legality of retail medical marijuana sales

Although California passed the first modern medical marijuana law in 1996 and saw the first wave of medical marijuana dispensaries, the legal status of dispensaries in the state is still somewhat unsettled.  While government officials in places like Oakland have backed large scale retail outlets, in other parts of the state a handful of District Attorney's offices have argued that retail marijuana stores are illegal under state law.  San Diego, where I live, has arguably been ground zero for this view--with one Deputy District Attorney going so far as to write a lengthy law review article (PDF) on why medical marijuana sales are actually illegal under California law.  

For the most part, appellate courts have held that retail medical marijuana outlets are permitted under California law (though the state Supreme Court has yet to weigh in.)  Last week saw another decision reaffirming the legality of retail medical marijuana sales in CA v. Baniana (PDF).

Here are a few relevant excerpts:

[California's Medical Marijuana Program Act (MMPA)] permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.) 

 

In 2010, the Legislature added section 11362.768 to the MMPA. (Stats. 2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).) “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).) 

 

The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana. He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana. According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.

 

The MMPA does not impose this limitation on qualified patients. First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana. We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.

 

Of course, the MMPA did not make lawful all sales of marijuana. The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit. The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section. Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances. Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies. 

It is getting harder and harder for recalcitrant prosecutors to argue that California law does not permit retail medical marijuana dispensaries.  But, as this opinion suggests, there are still other ways that California's horribly vague law can be a trap for the unwary in the hands of a drug war-style prosecutor.  The particulars of the non-profit operation requirement remain almost entirely unclear, for example.  A Los Angeles-area appellate decision from the spring highlights some of the problems.  (Frankly, I think the "collective and cooperative" statute would almost certainly be found unconstitutionally vague if it were not for the fact that a vagueness holding would presumably mean striking down the defense entirely, which would obviously be of no help to defendants.  I'm fairly certain this is why the issue is never raised in these cases.)

This recent holding is good news for medical marijuana advocates in California.  But unless and until the legislature gets their act together and passes comprehensive statewide regulations, a steady stream of appeals attempting to make sense of the mess in place now will almost surely continue.

 

"White House Says Marijuana Policy Is States' Rights Issue"

The title of this post is the headline of this new Huffington Post piece.  Here is how it starts:

The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.

The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."

Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.

Mixed results for defendant in WA medical marijuana appeal involving recommendations on "non tamper resistant" paper

Though recreational marijuana stores opened in Washington this week, its medical marijuana laws are likely to be kicking around the courts for at least a little while longer.  And a recent Washington appeals court decision (PDF) indicates that defendants who did not very carefully abide by the relevant legal requirements may be out of luck.

The case involves a college student providing medical marijuana to a series of patients by having each one temporarily designate him as their medical marijuana provider.  Consistent with an earlier ruling, the appeals court held that this practice was permitted by the law.  As a result, it overturned two of the defendant's convictions.  It upheld three other convictions, however, where the defendant sold marijuana to an informant with a fake recommendation that was not on tamper resistent paper.

From the court's opinion:

The delivery charges relate to the sales to the confidential informant. Markwart does not dispute that the authorization the informant showed was not on tamper resistant paper. To establish the affirmative defense, a person must meet the criteria for status as a designated provider and present his "valid documentation" to any law enforcement official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5). Valid documentation required a statement signed by a health care professional "on tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).

 

Tyler Markwart argues the trial court should have permitted him the opportunity to argue to the jury that providers may reasonably rely on documentation presented by a patient. We find no case that implies the medical marijuana provider 'may rely on the patient to present the obligatory documentation. We find no case that waives the requirement that a medical marijuana provider insure that the authorization be on special paper. Further, Markwart's argument conflicts with the statute.  MUMA expresses an intent that the provider ascertain the qualifications of the patient. The citizens of Washington, when adopting MUMA, and the state legislature, when enacting amendments, necessarily considered tamper resistant paper critical in the delivery of medical marijuana. The citizens and legislators understood the ease by which authorizations could otherwise be forged. If Tyler Markwart did not know what constituted tamper resistant paper or was unable to detect the special form of paper, he should not have been in the business of selling medical marijuana. He should have educated himself, before making any sales. 

 

State AG backs corporation in notable Colorado case concerning fired quadriplegic medical-marijuana patient

As reported in this Denver Post piece, the Colorado "state attorney general's office says Coloradans do not have a right to use marijuana off the job, siding with a satellite television company in its firing of a medical-marijuana patient." This position is articulated in a brief filed in the Colorado Supreme Court in the notable case involving a quadriplegic medical-marijuana patient who was fired by Dish Network after testing positive for marijuana. Here is more of the context:

In a brief filed with the state Supreme Court last month, the Colorado attorney general's office argues that giving workers a right to use marijuana off duty "would have a profound and detrimental impact on employers in the state."

"Contrary to popular perception, Colorado has not simply legalized marijuana for medical and recreational purposes," state attorneys write in the brief. "Instead, its citizens have adopted narrowly drawn constitutional amendments that decriminalize small amounts of marijuana."

The Colorado Court of Appeals — the state's second-highest court — last year upheld Dish Network's firing of a quadriplegic medical-marijuana patient for a positive drug test. Although there is no allegation that Brandon Coats was stoned at work, the company said it has a zero-tolerance policy on marijuana.

Coats say his off-the-job marijuana use should be protected by Colorado's Lawful Off-Duty Activities Statute, which prevents companies from firing employees for doing things outside of work — like smoking cigarettes — that are legal. Dish Network argues that marijuana use can't be considered lawful while cannabis remains illegal federally.

In its brief supporting Dish Network, the state attorney general's office says zero-tolerance policies ensure that employees are able to perform their jobs competently. Requiring employers to prove that workers are stoned on the job before they can be fired would require companies to conduct "intrusive investigations into the personal life of an employee."

"Simply put, zero tolerance policies provide businesses with an efficient means of avoiding difficult employment decisions and even litigation," the attorney general's brief states.

Coats' case is the first time Colorado's highest court has taken up questions about the scope of marijuana legalization in the state, and it has drawn at least six outside groups filing briefs in support of Coats or Dish. The Colorado Mining Association, the Colorado Defense Lawyers Association and the Colorado Civil Justice League — which claims an allegiance with several businesses and groups including the Denver Metro Chamber of Commerce — have filed briefs on behalf of Dish. The Colorado Plaintiff Employment Lawyers Association and the Patient and Caregivers Rights Litigation Project have filed briefs supporting Coats.

The Supreme Court has not announced when it will hear the case.

New Mexico Appeals Court holds medical marijuana expenses covered under state Workers' Comp law

 On Monday, a New Mexico appeals court upheld an order requiring an employer (and its insurance company) to pay for an employee's medical marijuana.  The decision involves a worker who was seriously injured on the job.  The employer did not dispute the employee's eligiblity for worker's compensation generally, but objected to coverage of medical marijuana.  In what, to my knowledge, is a first, the court held that medical marijuana is covered under the New Mexico Workers' Compensation Act.  

Here's an overview of the case, from the opinion's introduction (PDF):

We consider in this appeal whether, under the Workers' Compensation Act (theAct), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). The workers' compensation judge (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.

The outcome is a bit of a surprise since it seems the employer is being ordered to commit a federal crime.  The court's discussion on that point is perhaps the most interesting part of the opinion (though the whole thing is worth a read for those who follow marijuana law.)  It seems that sloppy lawyering on the part of the employer/insurer may have played a role in the outcome.  Though the employer raised the preemption issue generally, it apparently failed to cite to a specific federal statute it would be violating by paying for its employee's marijuana.  

Employer does not attempt to challenge the legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana remains a controlled substance under federal law, the order to reimburse Worker for money spent purchasing a course of medical marijuana “essentially requires” Employer to commit a federal crime. However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).

Also of note, the court's discussion of whether requiring an employer to pay for medical marijuana is at-odds with federal public policy:

Employer also argues that the order should be reversed because it is contrary to federal public policy as reflected in the CSA and Gonzales. Worker contends that federal public policy supports medical marijuana because the Department of Justice has announced a somewhat deferential enforcement policy. Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes. On one hand, the Department of Justice affirmed that marijuana remains illegal under the CSA and that federal prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in the same documents, the Department of Justice identified eight areas of enforcement priority and indicated that outside of those priorities it would generally defer to state and local authorities. In addition, the Department of Justice stated that it informed the Governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws. We also observe that New Mexico public policy is clear. Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of federal law or public policy. 

I'm not sure how much precedential value the opinion has.  If the employer's attorneys were more thorough, I don't think they would have had much trouble pointing to a federal statute that they would be forced to violate by paying for marijuana (21 USC 844, as an accomplice, comes to mind.)  But, because the employer didn't highlight a specific statute, the Court of Appeal was able to side-step the issue.  I suspect attorneys for employers/insurers in future cases will be careful not to make this same mistake.    

Louisiana appeals court overturns life sentence for marijuana possession (though the defendant still faces a minimum 20-year sentence on remand)

Louisiana may be one of the harshest states when it comes to marijuana sentencing, but a recent case indicates there may be some limits even there.  

Last week, a state appeals court overturned a life sentence for marijuana possession as excessive under state law.  (The defendant's excessiveness argument arose under Louisiana law; he did not make an Eighth Amendment argument.)  As a habitual felon, the defendant's marijuana possession conviction subjected him to a sentencing range of twenty years to life.  Though the court of appeals struck down the life sentence, the defendant still faces a minimum of twenty years for his marijuana conviction (and may very well receive a much longer sentence on remand.)  

Here is the heart of the court's decision (PDF):

While Defendant is a fifth-felony offender for sentencing purposes, and the trial court had discretion to impose a sentence between twenty years and life imprisonment, imposition of the maximum penalty within the sentencing range is excessive and disproportionate given the specific facts of this case. Defendant’s remaining conviction, possession of marijuana, second offense, is a relatively minor felony and only carries a penalty of a fine “not less than two hundred fifty dollars, nor more than two thousand dollars, [or imprisonment] with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Furthermore, most of Defendant’s past crimes involved non-violent, drug-related offenses. While he was convicted of aggravated second degree battery when incarcerated as well as attempted possession of a firearm by a convicted felon, these isolated incidents do not indicate an extensive predisposition to violence, and the violent or non-violent nature of these past crimes alone cannot be the deciding factor in an excessive-sentence determination. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.

 

The imposition of a life sentence for such a small underlying crime also poses a much greater harm than good for society, as such a sentence will only fuel Louisiana’s incarceration epidemic and lead to unnecessary economic and social burdens on inmates and taxpayers alike. See State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, writ denied, 12-1540 (La. 1/18/13), 107 So.3d 626 (Thibodeaux, J., dissenting). While sentence enhancement deters recidivist tendencies and encourages rehabilitation, these goals become tarnished when offenses deserving of a mere slap on the wrist are instead subjected to a “lock-em-up and throw away the key” philosophy. If the applicable enhancement statute provides a range of sentences for the trial court to consider, then the maximum sentence of life without parole should not be levied unless carefully articulated findings and reasons for sentencing clearly justify its imposition. 

North Dakota Supreme Court rejects the use of an out-of-state medical marijuana recommendation as a defense

North Dakota does not have a medical marijuana law (at least, not yet).  But can someone with a medical marijuana recommendation from another state rely on that recommendation as a defense in North Dakota?

The North Dakota Supreme Court addressed the issue last week, holding that out-of-state medical marijuana recommendations are no defense to prosecutions in North Dakota.  

Perhaps more interesting, the Court also considered whether evidence of an out-of-state recommendation can be introduced for the  limited purpose of determining whether a defendant intended to distribute the marijuana she possessed.  In other words, could a defendant charged with possession of marijuana with the intent to distribute argue that her out-of-state recommendation is evidence that she possessed marijuana for her own use rather than to sell it?    

The Court did answer this second question directly because of the procedural posture of the case (the defendants were appealing from a conditional guilty plea).  The Court's decision seems to suggest, however, that a defendant with an out-of-state medical marijuana recommendation might be able to introduce evidence of it for purposes of determining whether she is guilty of possession with an intent to distribute or only of simple possession. 

The most relevant portions of the Court's opinion follow:

Larson and Kuruc argue the district court abused its discretion by refusing to admit their respective medical marijuana prescriptions from the State of Washington as a lawful defense under North Dakota's Uniform Controlled Substances Act. The district court denied Larson and Kuruc's motions in limine to include the prescriptions as a defense.

 

Larson and Kuruc argue the possession of a controlled substance pursuant to a prescription or order is a valid defense. Under Washington law, their prescriptions allow each party to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants. The prescriptions were issued by a licensed neuropathic doctor in Washington. Larson and Kuruc seek to use the prescriptions to contend they were in lawful possession and as a defense against the charge of possession with intent to deliver.

 

North Dakota's Uniform Controlled Substances Act contains a prescription exception that allows a person to possess a controlled substance if "the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice . . . ." N.D.C.C. § 19-03.1-23(7). Under the exception, this Court has stated, "A defendant may not be charged with possession of a controlled substance if he has 'a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice.'"

 

A "valid prescription" is defined as "a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a: (1) Practitioner who has conducted at least one in-person medical evaluation of the patient; or (2) Covering practitioner." N.D.C.C. § 19-03.1-22.4(1)(e); see alsoN.D.C.C. § 19-02.1-15.1(1)(f). A "practitioner" is defined as a "person licensed, registered, or otherwise permitted by the jurisdiction in which the individual is practicing to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research." N.D.C.C. § 19-03.1-01(25)(a).

 

Construing the Uniform Controlled Substances Act as a whole, and harmonizing the prescription exception with the schedule I language, we conclude the plain language of the act does not provide for a medical marijuana prescription defense. Under the authority of N.D.C.C. § 19-03.1-02, the North Dakota Board of Pharmacy has determined that marijuana has a high potential for abuse, and no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision; this determination had been codified by the legislature. N.D.C.C. § 19-03.1-04. In this context, it does not logically follow that there could be a valid prescription for a substance that has no medical use or lacks accepted safety. We do not believe the legislature enacted the Uniform Controlled Substances Act to put North Dakota in the perplexing position where it must recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.

 

Larson and Kuruc also argue that their medical marijuana prescriptions can be used as a defense to negate the government's claim that the amount of marijuana possessed evidenced an "intent to deliver." According to the arrest synopsis, Larson and Kuruc were arrested with approximately 12.8 ounces of marijuana. Their respective prescriptions allowed them each to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants in Washington. The district court determined that the jury "will not be instructed a prescription from the State of Washington is a valid defense to either possession with intent to deliver or simple possession. Whether the same evidence may be admissible for some other purpose is a different question, which will be considered as future developments warrant."

 

Rule 11(a)(2), N.D.R.Crim.P., states "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion." Here, the court left open whether the prescription could be used for some other purpose. We surmise "some other purpose" for allowing the prescription into evidence could be a factual defense to show an amount of marijuana intended for personal use and not for distribution. Although the lower court did not make an affirmative ruling, there is no indication that the court would have prohibited Larson and Kuruc from arguing to the fact-finder that the amount was commensurate with a prescribed personal use and not indicative of an intent to deliver.

 

Important new appeals court decision on California's medical marijuana law is very bad news for dispensary operators

As I've mentioned before, when it comes to dispensaries, California has a horribly vague medical marijuana law.  The law says that patients and caregivers may associate in order to collectively or cooperatively cultivate marijuana but they may not do so for a profit.  Courts have pretty uniformly held that this provision of the law permits retail medical marijuana dispensaries.  But many of the particulars--like what it means to operate on a not-for-profit basis or whether an employee's criminal exposure should turn on the not-for-profit nature of the enterprise should impact the criminal (given that employees may have no idea how the enterprise is set-up)--remain laregely untested in court.

This week, a Los Angeles area appeals court issued an opinion addressing the collective cultivation law, and the result is not good news for medical marijuana operators and advocates.  Indeed, this is one of the most restrictive interpretations of the law that I've seen in a published case.  Though it pays lip service to precedent that says storefront dispensaries are allowed, its holding seems to leave most anyone involved in a dispensary open to criminal charges in California.  

The decision should also serve as a reminder to attorneys who advise dispensaries in California of the need to be clear about the legal risks with clients (in this case, it appears that an attorney had led the defendant to believe that the operation was in compliance with California's law.)

The defendant was an employee and patient of a medical marijuana dispensary (that was operated by a for-profit company), getting paid between $50,000 - $60,000 annually for growing marijuana.  The defendant and the collective had received advice from a private attorney, who seems to have advised that the arrangement was legal.  The trial court precluded his medical marijuana defense, a decision affirmed by the court of appeal.  

Here are some of the key parts of the opinion (PDF) (though anyone practicing in this area of law in California will want to read the whole thing):  

Defendant, Brian Edward Mitchell, appeals after he was convicted of marijuana cultivation. (Health & Saf. Code,1 § 11358.) . . . Defendant entered into two written agreements to grow marijuana every month and sell it to a for-profit corporation that operated a collective of which he was a member. Defendant anticipated being paid $50,000 to $60,000 annually for marijuana delivered to the for-profit corporation. Under these circumstances, defendant may not secure the immunity provided by section 11362.775 [the "collective cultivation" law that I mentioned above--AK.]

 

In 2002, defendant fractured his spine and was constantly in pain. On September 21, 2007, defendant visited Dr. Wesley Albert. Dr. Albert approved the use of marijuana for defendant’s symptoms. 

 

On November 7, 2007, defendant executed a K.I.M. Membership Agreement [for the medical marijuana collective -- AK]. 

 

Mr. Conway testified defendant would regularly spend time at the Barham Boulevard establishment. Mr. Conway testified defendant helped with the collective. Mr. Conway described defendant’s activities at the collective: “Just help us with the cultivation, or that, you know, introductory grow classes.["]

 

Defendant and Mr. Conway began discussing growing marijuana for the collective. After reviewing the Attorney General’s marijuana guidelines, Mr. Conway and defendant agreed that it “seemed that the collective was in a need” of more marijuana for its membership. Defendant testified there was very limited space at the Barham Boulevard collective for growing marijuana.

 

As result, defendant met twice with an attorney, Stewart Richlin. Defendant paid money to Mr. Richlin who provided the following advice: “He informed me that in order to grow legally for my collective, there were some documents that I could fill out. There were some certain parameters that I . . . had to stay within, but he advised me
essentially . . . that I was cleared as a patient and a member of the collective to engage in this activity.” Defendant then secured a number of documents which he believed would allow him to lawfully grow marijuana. 

 

On January 28, 2010, Officer Jorge Cervantes of the San Fernando Police Department arrived at the premises rented by defendant at 1933 First Street. Officer Cervantes went to the business in response to a citizen complaint indicating a possible break-in at the 1933 First Street address had occurred. The windows for the premises were covered with a “black plastic tarp-type” of material. Officer Cervantes saw a broken sectional door and glass. The sectional door had been forced open.

 

Inside the premises, the investigators found “man-made little make shift” rooms divided by tarps. Officer Cervantes saw numerous marijuana plants in various stages of growth in the different rooms. 

 

[D]efendant arrived at the marijuana growing facility on January 28, 2010, after the police had arrived. Defendant presented his medical marijuana identification card and led the investigators throughout the area where marijuana was being grown. Defendant presented documents indicating he was cultivating marijuana for the collective. Defendant discussed the issue of compensation for growing the marijuana with Officer Cervantes. Defendant testified, “I told the officer that I had been advised that I was allowed to keep $50,000 for myself for my contributions to the collective garden.” Officer Cervantes described defendant’s statement about being compensated for growing marijuana, “He said that he was only allowed to keep $50,000 a year for his contributions to the medical marijuana dispensaries.” (Defendant denied saying he intended to sell marijuana to a dispensary.) Defendant described his plan, “The plan was to cultivate for my collective and to be compensated for my time.” 

 

The other limited defense of consequence to our case created by the Medical Marijuana Program Act is section 11362.775 which states, “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under
Section . . . 11358 . . . .” (Italics added.) This defense is limited, as set forth in the highlighted language, to potential criminal liability based solely on the fact the accused engaged in the collective or cooperative marijuana cultivation. Defendant has not been convicted of any crime “solely because” of his collective or cooperative marijuana cultivation. Here, defendant operated, by himself, a sophisticated marijuana growing operation, for which he expected potentially to be paid $50,000 to $60,000 per year. Defendant expected to live off of the income from his marijuana growing venture and to be compensated for all of his expenses. The amount of marijuana he anticipated growing exceeded any quantity that would legally be for his personal medical use. There is no evidence he had any caregiver relationship with any other person in the collective. Defendant commenced his marijuana growing operations only after entering into two written notarized contracts prepared by an attorney with a for-profit corporation, Keeping It Medical. We are in accord with the argument of the Attorney General that defendant’s broad construction of section 11362.775 has no merit. 

 

[D]efendant went beyond the limited immunized scope of collective or cooperative marijuana cultivation. He entered into two separate written notarized contracts to provide marijuana to the Keeping It Medical for-profit corporation. In return, he would be paid a sufficient amount of money so he would recoup his expenses and live off of the rest of the income. His two separate State Board of Equalization seller’s permits, one for a corporation, indicate he expected to earn $60,000 annually. And although not essential, defendant’s marijuana growing venture arose in the context of an absence of any caregiver relationship within the Keeping It Medical customer base and community.
And, of course, defendant’s corporation, Herbmetics, Inc., had no relationship with the K.I.M. Collective other than as a supplier of marijuana. 

 

This case is different from People v. Urziceanu, supra, 132 Cal.App.4th at pages 785-786. In Urziceanu, the defendant was convicted of conspiracy to sell marijuana. (Id. at p. 758.) There was evidence the defendant operated a collective, FloraCare, out of his home. (Id. at pp. 759-765.) The jury was not instructed on section 11362.775. The Court of Appeal held that the jury should have been so instructed. (Id. at p. 785-786.) 

 

In Urziceanu, supra, 132 Cal.App.4th, the only charge upon which a retrial was ordered was conspiracy to sell marijuana. Section 11362.775 prohibits conviction for cultivation based solely on the fact the accused collectively or cooperatively cultivated marijuana for medical purposes. Conspiracy involves matters such as common design, plan or agreement. (See People v. Robinson (1954) 43 Cal.2d 132, 136; see 1 Witkin & Epstein, Cal. Criminal Law 4th ed. 2012) Elements, § 80, p. 375.) The collective action and cooperation elements of section 11362.775 involved a similar type of agreement or conduct covered by the conspiracy to sell marijuana charge in Urziceanu. As noted, the present case does not involve a conspiracy charge; merely marijuana cultivation. Here, defendant was not convicted based on collective or cooperative action by itself. Section 11362.775 has nothing to do with our case. Hence, there is no merit to defendant’s argument his marijuana cultivation conviction must be reversed because his actions were protected from criminal liability by section 11362.775. 

North Carolina man sentenced to 16 to 22 years for arranging $20 marijuana sale

Earlier this week, a federal District Court in North Carolina rejected the habeas petition of a man who was sentenced to consecutive terms of 101-131 months (roughly 16 - 22 years) for his role in arranging the sale of $20 worth of marijuana.  The petitioner, Robin Eugene Land, argued the sentence was cruel and unusual and that he had received ineffective assistance of counsel.  Land's lengthy sentence was tied to North Carolina's habitual felon statute but the opinion doesn't appear to shed light on what his prior offenses were (neither, from a brief review, does the state appeals court's decision on direct review.)  

In any event, whatever his prior record, Land will be spending the next 16 to 22 years in prison for arranging (not selling but arranging) a marijuana sale.  Oh, and the whole thing began with an undercover cop driving around asking for people to help him find marijuana.

Here are the facts from this depressing case (PDF):  

The State’s evidence tended to show the following facts. On the evening of 14 August 2009, Charlotte-Mecklenburg Police Officer Andrew A. Demaioribus was working as part of a team targeting street-level narcotic sales by conducting undercover buy operations on Charlotte city streets. While working undercover, Officer Demaioribus wore plain clothes and drove alone in an unmarked car. Additional police units stayed within two blocks of Officer Demaioribus’ location to provide assistance in the event that Officer Demaioribus' safety was compromised. 

 

At about 11:25 p.m., Officer Demaioribus observed defendant in front of a residence. Officer Demaioribus pulled over and asked defendant if defendant could help him “get some green,” to which defendant replied, “Yeah. I can get you some.” Defendant then got into Officer Demaioribus’ vehicle. Defendant instructed Officer Demaioribus to drive to several residences in the area in search of marijuana.

 

Before defendant left the car at the first residence, Officer Demaioribus handed defendant a $20 bill. Defendant was unable to locate marijuana at the first few residences. When they arrived at the last location, defendant got out of the car, walked out of sight, and returned after one or two minutes. In defendant’s absence, Officer Demaioribus relayed his location to other officers using a cell phone. When defendant got back into the car, Officer Demaioribus asked, “Have you got my stuff?” Defendant replied, “Yeah. I got your shit. I got it.” Defendant then handed Officer Demaioribus two baggies containing a green substance that Officer Demaioribus thought was marijuana.

 

After the transaction was complete, Officer Demaioribus gave a “take down signal” to inform other officers that defendant should be arrested. Defendant instructed Officer Demaioribus to drive him to a nearby store. Officer Demaioribus dropped defendant off in the store's parking lot and immediately radioed to a supporting officer, Charlotte-Mecklenburg Police Officer Derek E. Rud, to provide a description of defendant. Officer Rud pulled into the store’s parking lot and arrested defendant. Although he searched defendant pursuant to the arrest, Officer Rud did not locate the $20 bill Officer Demaioribus had given defendant. Subsequently, chemical analysis indicated that the substance in the baggies was 2.03 grams of marijuana.

 

On 24 August 2009, defendant was indicted for possession with intent to sell or deliver marijuana and for delivering cocaine. Defendant was additionally indicted for selling marijuana. Subsequently, on 2 November 2009, the State obtained a superseding indictment charging defendant with delivering marijuana. In addition, defendant was indicted for being a habitual felon. 

Arizona Supreme Court holds driving with trace amounts of marijuana in the blood is not enough for a DUI conviction

The Arizona Supreme Court issued a decision today on marijuana and driving under the influence (hat tip to Elizabeth Joh for passing along the news).  

As most readers probably know, marijuana stays in a person's system long after they use it.  As a result, a positive blood test for marijuana doesn't mean they person is impaired at the time of the test.  Because there is currently no blood or breath (or spit or sweat, etc.) test to accurately measure marijuana impairment the way we do for alcohol, states have struggled over the legal standard for marijuana impairment.  

This is a problem that goes far beyond marijuana (it exists for all legal prescription medications, for example) and, I think, is only tangentially related to marijuana legalization (after all, plenty of people use marijuana illegally so marijuana and driving is a concern regardless of its legal status.)  Nevertheless, medical marijuana and legalization laws have shined a bit of a spotlight on the issue.

One particularly controversial approach to the issue is to say that driving with any traces of marijuana in the blood is sufficient evidence for a DUI conviction.  Today's decision from Arizona's Supreme Court disapproves of this practice.  Unfortunately, the opinion page on the Court website is not loading so I haven't yet been able take a look at the decision and am unable to provide a link at the moment (update: the Supreme Court site is working again, opinion (PDF) is here).  

For now, this article has a good summary:

The case before the case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.

A trial judge threw out the charge, but the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”

In arguments to the court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. She did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver's license for a year.

Justice Robert Brutinel, writing the majority ruling, said that argument makes no sense.

“This interpretation would create criminal liability regardless of how long the metabolite remains in the driver's system or whether it has any impairing effect,” he wrote. Brutinel pointed out that Lunder admitted to the justices that, the way Arizona law is worded, “if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

Update: Now that the opinion is up, the precise question addressed by the Court may frame the issue it decided a bit better than the above.  This is the first paragraph from the opinion linked above:

Arizona Revised Statutes § 28-1381(A)(3) makes it unlawful for a driver to be in actual physical control of a vehicle if there is “any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s body.” We are asked to determine whether the phrase “its metabolite” includes Carboxy-Tetrahydrocannabinol (“Carboxy-THC”), a non-impairing metabolite of Cannabis,1 a proscribed drug listed in § 13-3401. We conclude that it does not. 

30 year sentence for a marijuana street dealer in Louisiana

Louisiana is home to some of the harshest drug sentencing laws in the country.  Another recent example is an appellate decision upholding a 30 year sentence for a street level marijuana dealer.  Granted, the defendant had five prior felonies.  But all of the priors except for one were drug offenses.  

The opinion (PDF) doesn't say exactly how much marijuana the defendant had, but it sounds like it was probably 9 nickle or dime bags:

On August 25, 2012, an off-duty police officer observed Price standing in front of a convenience store selling illegal drugs out of a trash can. Police arrived and detained Price. Thereafter, in the trash can, police found a brown paper bag containing nine plastic bags of marijuana and a small amount of cocaine. Price was arrested and charged with possession with intent to distribute marijuana and possession of cocaine. 

Price received 30 years on the marijuana conviction and a concurrent sentence of 5 years for cocaine possession.

On a related note, earlier this week I spoke on a drug policy panel in New Orleans hosted by the Tulane Law School chapter of the American Constitutional Society.  My co-panelists were all located in Louisiana--Stephen Singer (Loyola College of Law), Katherine Mattes (Tulane Law), and Anna VanCleave (Tulane Law).  It was eye opening to more about Louisiana's criminal justice system and the incentives that make reform there so much more difficult than in other states that might seem politically very similar (e.g., Texas).  I won't try to summarize their insights since I'm sure I wouldn't be able to do them justice.  Suffice it to say, I left the panel with the impression that we are likely to see lengthy drug sentences like the one Price received in Louisiana for some time to come.  On a brighter note, there are committed folks out there working hard for needed reform so all is not hopeless.

 

Can a state decline to conduct chemical analysis in low-level marijuana cases but prosecute anyway?

The question in the title of this post came to mind when reading this Indiana appellate opinion (PDF), released yesterday.  

From the opinion, it appears that Indiana's police lab has a policy prohibiting testing of marijuana below a certain quantity.  I can only assume that the policy reflects the agency's belief that low level marijuana cases aren't important enough to be worth the laboratory's time.  

One might think that if the state doesn't think it's worth a few bucks to test the marijuana, it would feel the same way about spending even more money prosecuting the case.  But apparently, that isn't the case.  

It seems Indiana is happy to continue prosecuting low-level marijuana cases.  It just wants to do it on the cheap, without worrying about making sure that the substance at issue is actually, you know, marijuana.  

 

The court's decision focuses on whether the identity of a substance can be proven by a police officer's testimony alone (without chemical analysis).  The court finds that it can, a result that is not an outlier.  This rule might make sense at first blush.  After all, marijuana might seem to be pretty easy to identify.  But misidentification happens a lot more often that one might think (PDF).  Just last year, for example, some cops in New York mistook tomato plants for marijuana!  

Putting the merits of that debate to one side, Indiana's lab policy seems to take visual identification to a whole new level.  It's one thing to permit identification without chemical analysis when evidence is genuinely unavailable (for example, if an adult gives marijuana to a teen and the teen can identify the substance based on its effects.)  It seems to me quite another to permit the state simply forego testing of a substance it has in a whole category of cases because it costs too much.

Judge Pyle offered these thoughts, expressing some concern, in a concurrence:

In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because  Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity.

 

While Indiana Supreme Court precedent allows the State to avoid this roadblock by having a law enforcement officer identify marijuana based upon his or her training and experience, the laboratory's present policy prevents prosecutors, and deprives jurors, from considering expert testimony based on scientific principles used to identify marijuana. This is particularly important because the State is required to prove, beyond a reasonable doubt, that an item alleged to be marijuana actually is marijuana.

 

Additionally, jurors are instructed that proof beyond a reasonable doubt means that they be firmly convincedthat the item is marijuana. When an expert testifies that an item has been examined macroscopically, microscopically, subjected to color tests, thin layer chromatography, and gas chromatography, his or her testimony goes a long way toward identifying an item as marijuana, beyond a reasonable doubt. Thus, increasing public confidence in Indiana's criminal justice system.

 

The selection of the type of evidence to bring before a jury should, as much as possible, be unconstrained by administrative decisions, and jurors should be able to assume that the State endeavored to bring its best case to trial. There is likely a rational reason behind the laboratory's policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory's policy decision be reconsidered by our colleagues in the executive branch.