Category : Marijuana

Medical Marijuana Crackdown in California

Although California SB 420 was approved in 2004 setting forth the guidelines regarding the use, possession, distribution and growing of medical marijuana in California, four U.S. attorneys in California are conducting a statewide crack down on medical cannabis cultivators and sellers. They have sent warnings in San Diego, San Francisco and other California cities to state compliant facilities advising them that they may be in violation of federal laws regarding drug free school zones, forcing these businesses to either move or shut down. Federal attorneys in California have also sent hundreds of letters to landlords who rent their properties to cannabis dispensaries advising them that their property may be subject to civil forfeiture, and that they could face prison time. Federal attorneys have even gone so far as to threaten newspapers and magazines that advertise marijuana.

Federal regulators have also cracked down on banks in California, Colorado and Michigan that do business with dispensaries barring them from accepting cash deposits or processing credit and debit card transactions from these state cannabis dispensaries. The IRS has also recently handed down a $2.5 million dollar ruling against a major California medical cannabis dispensary citing a portion of the IRS tax code that was meant to target drug cartels, barring marijuana businesses and dispensaries from taking business tax deductions. As a result, the IRS is now seeking millions of dollars in back taxes against this California dispensary company. In Rhode Island, the governor has shut down the state’s dispensary program because the Justice Department was threatening to prosecute employees who worked in the production or distribution of marijuana. Michigan attorney general and the courts are working to get rid of the state’s marijuana law program even though the law passed with 63% public approval.

The possession, use, sale, distribution, growing and/or transportation of marijuana that does not fall under the California medical marijuana statute is illegal in California. California Health & Safety Code Section 11018 defines marijuana as “ all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.”  Persons who are caught violating the California marijuana laws may be charged with a misdemeanor or felony and subject to imprisonment, jail time, fines and or both (California Health & Safety Code Sections 11357-11362.9).

If you have been caught up in the Federal government’s recent medical cannabis crack down in California and are facing California marijuana possession, use, sale, distribution, transportation or other related marijuana charges, you should contact a California Criminal Lawyer to defend you. The attorney will build a strong defense to get your charges reduced, probation, enrollment in a drug or alcohol treatment program, community service or get your case closed.

The Battle Over Legalization of Marijuana Continues

The legalization of marijuana continues to be a controversial issue as it makes its way back into legislation in two states, Washington and Massachusetts. Legislators in both the Washington State House and Massachusetts State House reintroduced bills recently to legalize marijuana use for persons 21 years of age and over with regulation and taxation of the marijuana commerce. In Washington State, Democrat Mary Lou Dickerson, State Representative and Chairman of the Human Services Committee, introduced Bill 1550 on January 25, 2011, which proposes to regulate the sale of marijuana in Washington State through state liquor stores with the licensing of cannabis growers regulated by the Liquor Board. Farmers would have to obtain a license from the Liquor Board at the cost of $5,000 per year. It would be considered a gross misdemeanor to sell cannabis without a license or to sell or distribute it to a juvenile under 21 years of age. The intention of Washington State legislatures is to increase state revenues while breaking up crime-syndicate drug cartels so that revenues can be used towards health services throughout the state due to budget cuts and shortages. The Washington bill has 13 co-sponsors and has now been referred to the Committee on Public Safety and Emergency Preparedness, which is the same Committee where the bill failed to pass last year. The State approved the legalization of medical marijuana in 1998, and in 2009, the Seattle City Council voted unanimously to support decriminalization.

Massachusetts House Representative Ellen Story (Democrat from Amherst) filed House Docket Number 1091 (H1091), An Act to Regulate and Tax the Cannabis Industry on January 24, 2011. The bill is currently awaiting a bill number. The proposed bill would eliminate all criminal and civil penalties in the State of Massachusetts for persons over 21 years of age who possess marijuana for personal use or share it with other adults. The bill would also provide for the regulation, licensing and taxing of commercial cultivation, possession and distribution of marijuana. The Massachusetts bill also failed to pass last year.

Meanwhile, the Montana Majority Republican House voted recently to overturn their Medical Marijuana Ballot Initiative which was passed in 2004 legalizing the use of medical marijuana. The bill, HB 161, is currently awaiting a vote in the Montana State Senate. The Montana House Speaker Mike Milburn (Republican from Cascade), who sponsored the bill, argues that the Marijuana Ballot Initiative has attracted criminal elements. Democrats argued that the initiative has failed because of the lack of regulation of medical marijuana by the legislature. Others Representatives such as Diane Sans (a Democrat from Missoula) argued that the State has already tried making medical marijuana illegal and that failed to work and that there is a value to using marijuana for medicinal purposes. It may not be so easy to get the repeal approved in the Montana Senate where the consensus is there needs to be reform, but that re-criminalizing it would be turning back the clock. There are several bills regarding taxing or regulating medical marijuana that have been introduced as well.

Right now there are 15 states and the District of Columbia where medical marijuana use and possession is legal including:

Alaska
Arizona
California
Colorado
DC
Hawaii
Maine
Michigan
Montana
Nevada
New Jersey
New Mexico
Oregon
Rhode Island
Vermont
Washington

California SB 420 was approved in 2004 which sets forth guidelines on the use, possession and growing of medical marijuana. A ballot proposition was approved by voters in 1996 approving medical marijuana use for AIDS, anorexia, arthritis, cancer, chronic pain, glaucoma, migraines, multiple sclerosis, seizures, nausea and other chronic medical conditions. State penalties for possession, use and growing for persons with medical marijuana prescriptions were also decriminalized. California Proposition 19 was recently defeated which would have legalized marijuana use and allowed the State to regulate and tax the commercial growing of marijuana.

Common Drug Offenses in Florida

Common drug offenses in Florida involve marijuana. Florida has the harshest marijuana laws in the nation. If you are arrested and convicted of drug offenses for possession, sale, cultivation or distribution of marijuana, you could face jail time, fines and penalties depending on the amount of marijuana in your possession and whether you were intending to sell, distribute or cultivate it. The most serious offense is the sale, delivery or cultivation of more than 25 lbs, which is considered trafficking and carries a mandatory minimum sentence of 3 years to 25 years and fines of $25,000 to $200,000. A conviction for any marijuana offense means an automatic suspension of your driver’s license up to two years.

Florida Statute XLVI, Chapter 893

For possession only of marijuana (cannabis) in Florida, you face the following penalties and fines:

·    20 grams or less misdemeanor, 1 year jail, $1,000 fine
·    More than 20 grams is a felony, five years jail, $5000 fine
·    25 or more plants (formerly 300 plants) now a felony, 15 years jail 10,000 fine
·    Any conviction causes a driver license suspension of 6 months to two years.
For the sale, cultivation or distribution of marijuana in Florida, you face the following penalties and fines:
·    20 grams or less, misdemeanor 1 year, jail $1,000 fine
·    25 lbs or less, felony, 5 years, $5,000 fine
·    More than 25 lbs to 200 lbs or 2000 plants, felony and considered trafficking, mandatory minimum sentence 3 years, $25,000 fine. Under Florida law, sale delivery or cultivation of more than 25 lbs is considered trafficking.
·    2,000 to 10,000 lbs or 10,000 plants, felony, mandatory minimum prison sentence 7 years, $50,000 fine
·    10,000 lbs or 10,000 plants or more plants, felony, mandatory minimum 15 years, $200,000 fine.
·    Under Section 893.1351, if you are arrested for leasing a residence with the intent of using it as a  “grow house” you are facing a second degree felony, with 15 years jail time and a $10,000 fine. Anyone caught operating a “grow house” where a minor is present faces a first degree felony and a 30 year jail sentence.
Other Penalties

If you are arrested within 1,000 feet of school, college or park with possession of 25 or more plants it is considered evidence of intention to sell or distribute, and it is a second degree felony which carries a maximum 15 years in jail and a 10,000 fine. Possession of drug paraphernalia is considered a misdemeanor, with a sentence of up to one year in jail and a fine up to $1,000.

The Florida Bong Bill

Florida’s tough laws on marijuana are further demonstrated by the latest Florida Bong Bill sponsored by regarding Representative Darryl Rouson, which was recently signed into law by Governor Crist, and went into effect July 1, 2010. The Bill bans the sale of bongs, pipes and other devices associated with smoking marijuana by stores that receive 25% or more of their annual revenues from these sales. The Bill is aimed at Florida head shop businesses. A class action lawsuit has been filed challenging the constitutionality of the law. Violators face up to one year in jail.  Tobacco shops would not be affected because the sale of these items does not reflect 25% of their annual revenues. People who want to buy marijuana drug paraphernalia can still purchase it at Florida tobacco shops or drive across state lines to make their purchases. Rouson says he has been fighting against the pipe industry, which he believes is part of the drug trade that is helping to destroy families and neighborhoods. It is Rouson’s opinion that the new law supports Florida’s public awareness of health and safety and law and order of society.

Case Example

Gainesville Police were questioning suspect 24 year old Bryant Michael Forsythe of 3707 S.W. 28th Terrace on Sunday July 11, 2010, when they found 13 oxycodone tablets on him while he was searched. Forsythe told the police he could prove the drugs were his because he had prescription information in his bag that he directed the police to search. Instead, police found his marijuana. He also directed police to search his closet after they found the marijuana. Officers did not find the prescription information or any more marijuana. Forsythe was arrested on charges of possession of a controlled substance, possession of marijuana and possession of drug paraphernalia and is being held at the Alachua County Jail.

Marijuana offenses carry stiff jail sentences and penalties in Florida. If you are arrested for a marijuana offense in Florida, you should contact a Florida criminal defense attorney. The attorney can obtain plea bargain offers for reduced charges, or diversion to a drug treatment program, probation or get the case dismissed as a result of unlawful search and seizure or insufficient evidence. The attorney may also be able to argue a “necessity defense” under Florida common law if you are using marijuana to help alleviate symptoms of your medical condition.

Examples of Illinois Drug Crimes

Unlawful possession of a controlled substance with the intent to deliver (also referred to as “UPCS”) is a very serious felony offense in Illinois. Intent to deliver in Illinois means manufacturing, delivery, or possession with intent to deliver. Drugs that are commonly involved under UPCS are cocaine, crack, heroin, ecstasy, methamphetamine, mushrooms, or LSD. Penalties and fines are substantial.

720 ILCS 570 Illinois Controlled Substances Act

UPCS offenses carry the following sentences and penalties under 720 ILCS 570 Illinois Controlled Substance Act if you are charged with possession of cocaine, crack, heroin, ecstasy, methamphetamine, mushrooms or LSD:

·    Possession of less than 1 gram is a Class 2 felony offense with a 3-7 year prison sentence. Fine can be $200,000. Probation is possible.
·    Possession of 1-15 grams is a Class 1 felony offense with a 4-15 year prison sentence. Maximum fine allowed is $250,000. Probation is possible.
·    Possession of 15-100 grams is a Class X felony offense. No probation is available. Mandatory minimum sentence is 6 years in prison with a maximum 30 years. The fine can be $500,000.
·    Possession of 100-400 grams is considered an enhanced Class X felony offense or Super X offense which carries a prison sentence between 9-30 years. No probation is available. The fine can be $500,000.
·    400-900 grams is an enhanced Class X offense (Super X) with a 12-50 year prison sentence.  No probation is available. The fine can be $500,000.
·    900 or more grams is a Class X enhanced offense (Super X) with a 15-60 year prison sentence.  No probation is available. The maximum fine is $500,000.

Case Examples:

Agents with the State Line Area Narcotics Team (SLANT), in conjunction with the Freeport Police Department Street Crimes Unit, arrested Terrance D. Young, a 37 year old Freeport, Illinois man, on June 10, 2010, with unlawful possession of a controlled substance with the intent to deliver, which is a Class X felony, and unlawful possession of cannabis, which is a Class C misdemeanor, after allegedly finding 77 grams of crack cocaine, 2 grams of cannabis, $430 cash and packaging materials at his residence. According to John Vogt of the Stephenson County State’s Attorney’s office, possession of 77 grams of cocaine was a significant amount. A Slant commander, who wishes to remain unnamed, said the arrest was the result of an ongoing investigation against Young regarding the sale of narcotics. SLANT is comprised of a joint effort of police officers from the Freeport, Loves Park, Rockford, and Monroe, Wisconsin police departments, as well as from the Stephenson County and Green County, Wisconsin sheriff’s departments and the Illinois State Police. If convicted of the possession of 77 grams of cocaine, a Class X felony in Illinois, which is the most serious of his charges, Young faces a 6-30 year prison sentence. Young was also charged with other felony charges for unlawful delivery of a controlled substance within 1,000 feet of school from a crime that occurred in March 2010. Bond for all charges was set at $200,000.

Another case involving the Freeport Police was the arrest of 21 year old Darren T. Miller on June 26, 2010, on felony charges of unlawful possession with intent to deliver a controlled substance within 1,000 feet of Embury United Methodist Church, located at 515 S. Galena Ave. in Freeport. The police allege that Miller possessed, with the intent to deliver to another person, more than 1 gram but less than 15 grams of cocaine. Miller was taken to Stephenson County
Jail, and bond was set for $75,000. If convicted of this Class 1 felony offense of possession of 1-15 grams of cocaine, Miller could face a 4-15 year prison sentence in Illinois and a maximum fine of $250,000. Probation is also possible.

If you get arrested in Illinois for unlawful possession with intent to deliver a controlled substance, you should hire an Illinois criminal defense attorney. The attorney can argue a defense such as illegal seizure to get your case dismissed, or you may be eligible for a diversion program for drug treatment if you have a drug problem. Your attorney may be able to negotiate a lesser offense with a plea bargain to get your charges reduced to a Class 2 felony so you can avoid jail time and receive probation instead.

Immigration Law Update – Padilla v. Kentucky

On March 31, 2010, the United States Supreme Court issued an opinion in Padilla v. Kentucky (2010) 129 S.Ct. 1317.  The issue presented to the Court was whether a criminal defense attorney rendered ineffective assistance of counsel to a client when she failed to advise the client of and affirmatively gave wrong advice regarding the potential immigration consequences of his guilty plea.

Petitioner Padilla was a lawful permanent resident of the United States for over 40 years and honorably served in the U.S. Armed Forces in Vietnam.  Padilla pled guilty to a felony charge of transporting a large amount of marijuana in Kentucky.  His immigration attorney told him that he would not be deported because he had been in the country for so long.  However, the non-citizen removal statutes clearly state that any conviction for a drug trafficking offense will (not may, WILL) result in deportation.  Padilla claimed that he would have proceeded to trial had his immigration lawyer properly advised him that he would face deportation if convicted.

The lower courts, including the Kentucky State Supreme Court, held that a failure to advise on immigration issues and even wrong advice on immigration issues were merely a “collateral consequence” to his conviction thus his attorney’s erroneous advice was not a violation of his Sixth Amendment right to effective assistance of counsel.  Generally the court was saying that since the immigration issues were not a result of punishment by the criminal courts in direct response to his guilty plea, the Sixth Amendment did not apply.  An example of a collateral consequence would be a person losing their job because they pled guilty to a felony.  Although that is foreseeable and unfortunate, it is not a punishment doled out by the court and thus is a “collateral consequence”.

The United States Supreme Court disagreed with the Kentucky State Supreme Court.  Instead, the U.S. Supreme Court decided that immigration consequences are an integral part of the penalties associated with criminal proceedings for non-citizens because those consequences are often as severe, if not more so, than the actual criminal punishment.

The Court recognized that immigration law is a complex area of practice, but due to the severity of the consequence of a criminal conviction, criminal defense attorneys still have some duties to the clients with regard to immigration.

The Court held that if the immigration consequences were clear, as they were with Padilla, then an attorney has a duty to advise the client of those consequences prior to letting them enter a guilty plea.  In Padilla’s case, if the attorney had read merely the removal statute, she would have seen that his plea would automatically result in deportation because all drug trafficking offenses result in deportation.  If the consequences are not clear, the attorney then has a duty to advise the client that there will be immigration consequences including potential deportation but the attorney does not have to be more specific.