Archives : marijuana

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.

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.

Massachusetts Drug Offeneses

According to the Department of Justice FBI Crime Report for 2009, there were 682 arrests in Massachusetts for drug offenses involving persons under the age of 18 years and a total of 12, 127 total drug arrests involving all ages. Drug offenses can be for possession, distribution or drug trafficking. When making arrests, police look at the quantity, whether drug paraphernalia was found, what items were at the scene such as scales, measuring tools, other ingredients, plastic bags and if there are large amounts of cash lying around when deciding whether to charge someone with intent to sell and distribute or just for possession.  Penalties for drug offenses in Massachusetts vary depending on the type of drug, the amount and the location of the drug activity. If convicted of possession or distribution of large amounts of heroin, cocaine, methamphetamine or prescription drug fraud, you face stiffer prison sentences and the loss of your driver’s license.

Penalties

To illustrate the difference in penalties for conviction for possession of drug vs. conviction with the intent to sell or distribute, here are some typical sentences that you could face:

·    Possession of less than one ounce of marijuana decriminalized in 2009 –civil infraction and a $100 fine. Juvenile offenders must pay the $100 fine and attend a drug treatment program or pay a $1,000 fine.
·    First offense for possession of a Class D substance such as marijuana – 6 months probation and then dismissal if there are no other charges.
·    Second or subsequent offense for possession of a Class D substance such as marijuana – drug treatment, fines or jail time.
·    Possession of 200 grams of cocaine (7 ounces) – mandatory prison sentence of 15 years.
·    Possession of 100 grams of heroin (3.5 ounces) -mandatory sentence of not less than 10 years.
·    Any amount of any type of drug sold in an unmarked free drug zone 1,000 feet from a school or 100 feet- an additional two year prison sentence and a fine of $1,000 to 10,000.
·    Cultivating marijuana with the intent to sell up to 50 lbs.-Jail sentence of up to two years and a $5,000 fine.
·    Cultivating marijuana with the intent to sell 50 lbs. or more- mandatory one year sentence and up to 2.5 to 15 years jail time and fines from $500 to 10,000.
·    Cultivating marijuana with the intent to sell 100 lbs or more- mandatory three year jail sentence and up to 15 years and a fine between $2,500 to $25,000.

Case Example

On April 27, 2010, according to Boston Federal prosecutors and the DEA, “Big Brother” contestant Matt McDonald from Charlestown, MA was indicted in Boston’s Federal District Court for conspiracy to distribute oxycodone in a purported drug operation run by another former contestant and winner of the Big Brother show, Adam Jasinski.  Jasinski was arrested last October in North Reading, Massachusetts after attempting to sell oxycodone to a cooperating government witness. If convicted, McDonald faces up to 20 years in prison and a $1 million dollar fine.

While many Massachusetts drug offenses involve much less serious charges such as possession or sale of small quantities of marijuana, ecstasy or other class D drugs, all crimes for drug offenses in Massachusetts should be taken serious. College students and people under the age of 18 if convicted for possession or sale of small amounts of class D drugs such as marijuana could lose their college Pell grants, other school scholarships and loans. Having a conviction on your record could affect future and current employment.

If you have been arrested on a drug charge in Massachusetts, you should hire a Massachusetts criminal defense attorney to defend you.  If you were charged with possession with intent to distribute, the attorney will attempt to get the charges reduced to just possession or negotiate a lesser sentence such as community service or attendance of a drug treatment program in lieu of jail time. The attorney can file a motion to suppress evidence in order to exclude evidence seized by the police at the time you were arrested. For possession charges of a small amount of Class D drugs such as marijuana or ecstasy, the attorney may be able to get the drug possession charges dropped to a civil infraction.

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.

Justice Department Declares War on Marijuana Traffickers, Not Patients

The Justice Department sent a three-page memo to selected U.S. attorneys outlining its policy for marijuana arrests. The newly clarified policy states that the department plans to refocus its target from medical marijuana users to heftier targets — drug traffickers who are clearly breaking the law.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana," said Attorney General Eric Holder. "But we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder added.

The memo intends to help clarify confusion surrounding medical marijuana laws in the following 14 states: Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Maryland, Oregon, Rhode Island, Vermont and Washington.

Marijuana Arrests in California

Clarification is particularly significant in the state of California where there has been a lot of confusion and uncertainty surrounding medical marijuana sales. Medical marijuana dispensaries in California have been getting a lot of grief from the government. In fact, Los Angeles County District Attorney Steve Colley announced earlier this month that he is going to crack down on marijuana dispensaries for over-the-counter sales.

According to Cooley, the roughly 800 marijuana dispensaries in Los Angeles are violating the 1996 Compassionate Use Act, a voter initiative legalizing marijuana for medical purposes and a 2003 state law that permits collective cultivation. He argues that by profiting from the sales, the dispensaries are breaking the law.

Cooley’s statement, which was released Oct. 8, sparked public debate from medical marijuana advocates who argue that if they do crack down on dispensaries they will be preventing thousands of seriously ill people from getting the medicine they need.

Clarifying Policies Surrounding Marijuana Arrests

Although some medical marijuana advocates declared victory, the Justice Department sees it differently. Whitehouse spokesman, Robert Gibbs, said the memo simply added guidelines to a decision that has been administration policy since January.

The department’s guidance said it plans to continue to pursue illegal trafficking of drugs, including marijuana, but does not want to waste federal resources on going after "individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law."

For more information about drug trafficking laws in your state, contact Imhoff & Associates.

Marijuana Laws Possession, Distribution, Transportation, and Cultivation

By Vince Imhoff, Esq., & Dan Rhoads

Jay gets into his car carrying a small bag of marijuana in his pocket. After driving for a few miles, his car breaks down; and Jay calls his friend Dee. Jay offers to exchange some of his marijuana for a ride back to his house, and Dee agrees. Back home, Jay prepares the marijuana by pulling the usable leaves off the stem.

In possessing marijuana and transporting it, Jay has committed two misdemeanor offenses. Jay also faces two felony countscultivation and possession for saleeach of which is punishable by up to 3 years in prison. Dee faces prosecution for at least 1 misdemeanor and possibly a felony. The risk of severe punishment lies in Californias anti-marijuana statutes.

Possession of Marijuana

Possessing not more than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Cal. Health & Safety Code 11357(b). For a violation on school grounds, the fine can be as high as $500; and the defendant can serve up to 10 days in jail. 11357(d). Possession of more than 28.5 g, for personal use, carries a maximum fine of $500 and/or 6 months in the county jail. 11357(c).

The law recognizes joint possession; so, more than one person can be convicted for possession of the same bag. In People v. Villalobos, 245 Cal. App. 2d 561 (1966), an officer observed ten men huddled together in a location that was known to be a hangout for marijuana smokers. As the officer approached the group, a paper sack was thrown into the air; and the men scattered. The officer did not see who threw the sack and could not say that any specific member of the group had possessed the sack before it was thrown.

Because of joint possession, the officer could reasonably conclude that the sack was the common property–or at least in the common possession–of the entire group of ten men. Villalobos, 245 Cal. App. 2d at 564. However, the magistrate decided that Villalobos could not be convicted for possession of the sacks contents because the defendant was not shown to have been more than a spectator or hanger-on. Id. So, the state instead prosecuted him for marijuana debris that was found in his pocket.

Fortunately for Villalobos, the laws against drug possession do not refer to useless traces or residue. People v. Leal, 64 Cal. 2d 504, 512 (1966). So, the 50 mg of marijuana that were scraped from Villalobos pocket would not support a conviction for possession.

The usability requirement has been consistently upheld. Charred marijuana seeds cannot be used as a basis for conviction because they are useless for either a narcotic effect or for growing the plant. People v. Pohle, 20 Cal. App. 3d 78 (1971). Marijuana soaked in alcohol as a remedy for arthritis or rheumatism cannot support a conviction for possession because it cannot be used as a narcotic nor converted to a usable form. People v. Vargas, 36 Cal. App. 3d 499 (1973).

Marijuana Possession for Sale

Possession of marijuana with the intent to sell is a felony punishable by detention in state prison for either 16 months, 2 years, or 3 years. Cal. Health & Safety Code 11359. Sale of drugs includes transfers for things other than money. People v. Peck, 61 Cal. Rptr. 2d 1 (1996). Intent to sell includes an intent that another person will sell the marijuana that the first person possesses. U.S. v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. 2002).

Circumstantial evidence and reasonable inferences drawn from that evidence can be used as evidence of intent. Narcotics experts, usually law-enforcement officers, may give their opinion about the possessors intent as testimony. Circumstances tending to prove intent to sell include the quantity of narcotic, equipment found with it, and place it was found. People v. de la Torre, 73 Cal. Rptr. 704 (App. 2 Dist. 1968).

Marijuana Transportation or Distribution

Illegal distribution includes transporting, importing into the state, selling, furnishing, administering, or giving away marijuana, or attempting to do any of those things. The punishment for illegal distribution of more than 28.5 g is imprisonment in the state prison for 2, 3, or 4 years. Cal. Health & Safety Code 11360(a). If the amount is less than 28.5 grams, the punishment is a $100 fine. 11360(b).

One can be guilty of transporting marijuana without ever possessing it. For example, Sharon Botos drove her friend Kent Wenger to the airport after he had stayed at her house for several days. At the gate, a deputy U.S. marshal became suspicious of Wenger and eventually asked to search his luggage. One of his bags was locked, and Wenger at first denied having the key. But when the deputy marshal asked Wenger what he had in his pocket, Wenger pulled out a roach-clip with three keys attached to it. One of them opened the locked suitcase, which contained 6 kilos of marijuana.

Botos indictment for transporting marijuana was upheld. The court reasoned that the circumstances indicated that she knew what the suitcase held. Based upon those circumstances and on Wengers testimony, Botos was convicted. The court noted, her actual possession of the marijuana was irrelevant to the conviction for transporting it. People v. Botos, 27 Cal. App. 3d 774, 780 (1972).

Cultivation, Harvesting, or Processing of Marijuana

A person who unlawfully plants, cultivates, harvests, dries, or processes any marijuana is guilty of a felony. Cal. Health & Safety Code 11358. Although the cultivation statute seems to implicate conduct at the top of the distribution chaini.e., growing marijuana plantsit also applies to the casual user. This is so because of the word processes.

In People v. Tierce, the court held, one who removes the leaves from marijuana plants in order to render the leaves usable for smoking is engaged in processing the drug and thus violates the provisions of [the cultivation statute]. Tierce, 165 Cal. App. 3d 256 (1985). Although the defendant in the case argued that the statute could not have intended to subject casual smokers to felony charges, the court disagreed.

Back to Jay

In addition to maximum fines of $100 for each count of possession and transportation, Jay could be sentenced to prison time. Because he intended to trade marijuana for a ride from Dee, Jay would face a prison sentence of at least 16 months for violating 11359. Jay also committed a felony when he processed the marijuana. If a prosecutor could prove everything Jay did, he would face at least 2 years and 8 months in prison for his exploits during that one day.

Although simple possession is no longer punished severely, violating some marijuana laws leads to serious charges. Due to the scope that the courts have given to some of those laws, seemingly victimless actions can constitute felony offenses. When facing prison time, a person needs a defense attorney who will be a zealous advocate; or he is left to rely on the mercy of a prosecutor or a judge.