Articles Posted in Marijuana Lawyer

A troubling – and logic-defying – precedent has been set by an appellate court in Arizona, which essentially ruled that marijuana users need not actually be impaired in order to be charged with a DUI in that state.

Our Los Angeles marijuana DUI lawyers are concerned for the kind of precedent this sets, and although the ultimate outcome will only have an immediate effect in Arizona, there is no doubt that prosecutors and lawmakers in other states – particularly those in which marijuana is legal for either medicinal or recreational purposes – will be closely watching the outcome of Arizona v. Shilgevorkyan.

The fact is, even if your state allows marijuana to be consumed to treat a medical condition, one cannot get behind the wheel of a vehicle if impaired, as that person is then considered a danger.

But proving impairment of a marijuana user is a different matter, and it really cannot be conducted in the same way as alcohol impairment testing. As we have explained in previous blog posts, alcohol is rapidly processed through the system. So if you have above a certain amount detectable in your blood or breath, it’s a strong indicator of impairment. Marijuana, regardless of how it is consumed, is processed differently. Testing for traces of marijuana in the blood will prove only that marijuana has been consumed at some point possibly in the last month. People who use it on a regular basis may have built up higher levels of the active chemical in their blood stream, yet are by no means impaired.

That has been the crux of the argument against setting limits for “safe” medical marijuana levels for drivers, and it’s also what is at issue here in the Arizona case.

Here’s what happened:

In late 2010, a sheriff’s deputy stopped the defendant for reportedly speeding and making an unsafe lane change. The defendant submitted to a blood test, which returned a positive result for presence of carboxy-tetrahydrocannabinol. The deputy filed a traffic ticket charging the individual with two counts of driving under the influence, per a state law that makes it illegal for a person to drive “while there is any drug defined in section 13-3401 or in its metabolite in the person’s body.”

The defendant moved to have the complaint dismissed because the chemical found in his body was not hydroxy-tetrahydrocannabinol, which is the metabolite of marijuana. In other words, what was in his blood was not an indicator of current use, but rather a trace indicator of previous use.

The trial court agreed and dismissed the case. However, the state appealed and the appellate court in February overturned that verdict, saying that lawmakers had intended a flat ban on driving with any proscribed drug substances in one’s system. The court went so far as to say that the ban extends to ALL substances, whether capable of causing impairment or not.

That one could be charged with driving while impaired, regardless of whether he or she is actually impaired, makes no sense from either a legal or logical standpoint, even when taking into consideration the court’s position that as a matter of public safety, the law should be interpreted broadly.

However, the Superior Court commissioner who had ruled on behalf of the defendant warned in her earlier ruling that such interpretation would result in medical marijuana patients from out-of-state facing DUI charges when in fact they aren’t impaired.

Now, the last word is in the hands of the state supreme court.
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In many ways, it seemed as if the nine medical marijuana facilities peppered throughout Orange and Los Angeles counties weren’t much different than the hundreds of others that have cropped up in recent years.

Our Los Angeles marijuana lawyers understand they bore names such as “Alternative Herbal Care” and and “Safe Harbor Collective.”

On paper, it appeared each of the facilities was owned and operated by different people and nothing was particularly askew.

However, federal authorities say that all nine facilities were actually owned by a 56-year-old man with prior convictions for drug dealing. Additionally, investigators say he admitted to giving orders to managers at the facilities to shred records that would reveal taxable income from marijuana sales. The clinics reportedly raked in approximately $25 million over the course of six years, but the owner allegedly only reported a few hundred thousand dollars of income annually.

As an example, prosecutors say the owner made about $11.5 million back in 2009, but he only reported about $201,000 worth of income to the federal government.

What’s more, officers allegedly found hundreds of thousands of dollars hidden in his house when they conducted a search. They also found an assault rifle, three other firearms and cases of ammunition – something he was forbidden to have as a convicted felon.

The defendant, nicknamed “Pops,” recently pleaded guilty to felony charges of tax evasion and conspiracy to distribute more than 1,000 kilograms of marijuana. As part of the plea deal, he was forced to forfeit some $25 million in assets, businesses interests and cash, including eight homes, as well as pay more than $4 million in restitution for unpaid taxes.

He faced 10 years to life in prison. The judge sentenced him to 15 years.

This case illustrates why it is so critical to not only run your marijuana dispensary above-board, but to have a legal consultant reviewing your practices, not just when you open but as part of an ongoing process.

Marijuana regulation in California mirrors something of the Wild West, and it’s understandable that there might be confusion about the exact nature of your obligations.

Admittedly, this might not have been a situation where the owner was confused. However, there are many other scenarios where defendants believed they were doing everything right, and they ended up getting swept up in the federal crackdown on medical marijuana in this state.

In this case, the investigation was initiated by the Orange County Sheriff’s Office, which later tapped federal authorities for further assistance.

The case was eventually handed over to the U.S. attorneys office because the penalties in federal cases tend to be much more severe than what we might see in a state criminal case.

Another reason so many of these cases end up in federal court is because prosecutors know that at the state level, defendants can at least present a defense that involves protection of their actions under state medical marijuana laws. Federal law, meanwhile, does not recognize marijuana as legal for any purpose, so prosecutors know mounting a defense will be tougher.
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When Proposition 215 was first passed in 1996, it called for a statewide system that would regulate medical marijuana.

However, that never came to fruition, and our Los Angeles marijuana lawyers know that this is likely a big part of the reason why we have accrued many of the problems we now face.

Counties and municipalities had no clear guidance from the state on how the drug should be regulated, but then again, the state had no real guidance either. It seemed easier to simply leave it up to local officials. Some local entities ended up hammering out some great symbiotic solutions that really worked. Others struggled with it in the form of extremes in both directions – out-of-control proliferation or outright bans.

That has left us with this patchwork of regulation that is not only confusing, but has left the state and its dispensaries vulnerable to federal intervention in the form of criminal raids and mass forfeiture actions.

Enter state Representative Tom Ammiano and AB 473. As we previously reported in our Los Angeles Marijuana Lawyer Blog, the goal is to enact a clearer, more concise method of medical marijuana regulation that would be overseen by a singular state facility.

In doing this, many have pointed out that Ammiano is taking a page from the playbook of Colorado. Although Colorado was California’s successor in the movement to legalize medicinal marijuana, it had a good idea from seeing us of what did not work. So legislators there made sure that its own state-run oversight agency – the Colorado Medical Marijuana Enforcement Division – would represent strong centralized governance.

That is the kind of model that Ammiano has said he hopes to recreate by having the state’s Alcohol Beverage Control agency oversee medical marijuana cultivation, prescriptions, distribution and testing under a division yet to be formed.

Still, there are a few things that Ammiano and others might consider to help improve upon the Colorado model. According to the San Francisco Examiner, the Colorado oversight agency has been running in the red for the last two years and an audit revealed it had actually under-reported state tax revenue from marijuana sales by more than $750,000.

Marijuana regulators in Colorado say legislators failed to provide adequate resources to the agency, particularly for the enforcement arm in light of a recently-enacted moratorium on new dispensaries.

Even in the face of these problems, Ammiano said Colorado’s system remains a great model, but reminds us of why we have to be extremely careful in how we implement it.
A similar bill introduced last year that would have created a California medical marijuana enforcement agency died without making it into law.

However, many local leaders – even those who pushed for bans in their district – have expressed support for statewide standards that would provide uniformity and clarity.

AB 473 was first introduced in February and was amended March 19 in committee. It would offer guidance on the administrative structure of the agency and the licensing of everything from cultivation to transportation. It’s a measure we will continue to watch closely.
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A group of Los Angeles medical marijuana advocates are pushing hard to have hemp legalized for virtually all purposes by next year.

Our Los Angeles marijuana lawyers understand that California Cannabis Hemp Initiative 2014 is still in its infancy. However, the hope is that it will garner enough support to get on the ballot by November of next year. If successful, the measure would mirror the end of alcohol prohibition, except with marijuana.

The measure proposes making marijuana legal for a wide range of purposes, including medicinal, recreational (for those over the age of 21) and industrial with regards to the proliferation of the hemp industry.

While it would have the effect of making the drug legal for pretty much anything, organizers say the main goal is to open the doors for it to be used in medicine, food, fuels, paints, textiles and paper, building materials and plastics.

The author of the measure, Jack Herer, was a pro-marijuana activist who passed away in 2010. Other activists are following through with his dream.

With posited that with 10,000 varieties of the plant that could be used to produce some 50,000 products, the potential profit margin in California alone was well into the trillions over the course of just a handful of years.

The initiative is not only an effort to keep the federal government at bay and support individual choice and freedom – it’s an answer to our economic crisis, using a natural resource that can be safely grown, processed and manufactured.

Advocates hold that hemp is more efficient than corn as a bio-fuel and plastics component, it creates non-toxic, bio-degradable materials such as varnishes and paints and insulation, it’s a super-food with high amino acids and omega 6 and 3. A resilient plant, it can grow wild in all 50 states and actually can improve soil in areas where it does grow.

It made sense for numerous manufacturers back in the 1930s to jump on the anti-marijuana bandwagon, given all its wide variety of incredibly useful properties.

Still, even if this measure makes it to the 2014 ballot, the effort may stall out for a number of reasons.

For one thing, 2014 is a midterm election year. Historically, these elections have lower turn-out than presidential elections. What’s more, those who do show up tend to skew older. We certainly don’t wish to paint anyone with a broad brush, but older aging voters tend to vote more favorably toward marijuana prohibition, while younger voters tend to be more liberal on the issue.

That’s why even some of the advocates are proposing the measure be shelved until at least then, lest all this effort be in vain.

Also, the group is still trying to gain steam. A similar effort to get enough signatures to put the measure on the ballot last year came up short.

However, vigor among activists and supporters has been renewed amid the legalization of marijuana for recreational purposes in both Washington and Colorado.

And still, the question of how the federal government will respond to this action remains to be seen. The U.S. Justice Department’s approach will be valuable for us to gauge the risk moving forward.
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The Hippocratic Oath given by virtually every medical doctor in this country holds that, above all, one must do no harm.

Doctors hold this to be sacred, and that’s why our Los Angeles marijuana lawyers know the issue of medical marijuana can be a difficult one.

On the one hand, it is often more effective than many painkillers, anti-seizure medications and even certain cancer-fighting drugs – minus the awful side effects and addictive properties.

On the other hand, it’s against federal law.

The ethical question becomes, “Am I harming my patient by denying a potentially superior treatment option or by advising him to break federal law.”

The New England Journal of Medicine recently posed a version of this question on its website, with dozens of doctors posting responses.

The exact hypothetical question was this:

A nearly-70-year-old woman has cancer and reports that her nausea and pain are not relieved by the use of standard medication. You are in a state that allows medical marijuana and she said her family has the ability to cultivate it. You are her primary care doctor. What do you recommend?

Some doctors responded that medical marijuana should be prescribed – but only if other “conservative options” – i.e., mass-produced, potentially addictive medications.

Several maintained that federal policy has failed to keep pace with the advances of science, particularly in the realms of pain, nausea and other conditions that don’t respond well to so-called “conservative” approaches.

At this point, we have 18 states that have approved measures for medicinal marijuana. One doctor described marijuana as a horse that had “long ago burst from the federal jurisdictional barn.”

What was very troubling to many of the physicians was the lack of extensive and valid medicinal studies on not only the effects of the drug on certain types of conditions, but also on what types of strains might tend to work best for certain ailments. Any modern studies on marijuana are primarily conducted overseas, as the drug is so strictly controlled in the U.S.

In turn, that means the U.S. Food and Drug Administration hasn’t had a chance to conduct any trials that would show how it compares to other drugs.

What the patchwork of research reveals is that the most common uses for medical cannabis include:

• Treatment of vomiting and nausea. Trials conducted by the National Cancer Institute found two marijuana-based drugs helped to significantly reduce the nausea and vomiting induced by chemotherapy.
• Appetite stimulation. Research found that HIV/AIDS patients as well as cancer patients who had suffered dramatic weight loss consumed significantly more calories by using the drug.
• Relief from muscle spasm and tension, according to research by both the American Cancer Society and the National Multiple Sclerosis Society.
• Relief from pain, according to 2010 research by the Canadian Medical Association Journal.
• Treatment of insomnia, according to the National Cancer Institute, which found subjects slept better and also benefited from improved moods and less anxiety.

While some doctors noted potentially unwanted psychoactive effects, others noted that versions of the drug, such as Marinol, could significantly reduce those.

Most doctors believe that, in the end, it should be a choice made between a doctor and an educated patient and/or guardian. The federal government, many said, should have little say in that conversation.
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Twenty years ago, it might have been something of a scandal: An L.A. councilman taking a reporter along to introduce her to his drug dealer, and even give her a tour of the place.

Our Los Angeles marijuana lawyers know that’s exactly what happened recently when Councilman Bill Rosendahl, a cancer patient who also suffers from diabetes and chronic pain, did when he opened up to a Los Angeles Times reporter recently.

The whole scenario, so unthinkable just two decades ago, illustrates how far we have come with regard to acceptance and accessibility of medical marijuana. It also shows that, despite the decentralized and therefore chaotic approach the state has taken with regard to regulation, medical marijuana probably isn’t going anywhere – no matter how “tough” the feds try to get on it. It’s become too deeply ingrained in who we are. What’s more, the benefits, particularly over traditional drugs, are undeniable, as also detailed in the Rosendahl story.

Rosendahl told the reporter that last July, just as the city council was moving full speed ahead with legislation to block medical marijuana dispensaries, the 67-year-old Rosendahl learned he had cancer. It was a rare form that manifested in the portions of his intestines between his bladder and kidney. At that time, he already had a medical marijuana card that he had been given 10 years earlier for pain relief from neuropathy, a side effect of his diabetes.

But he didn’t use that card regularly, Rosendahl said. The cancer, though, made him desperate. He said his doctor told him to nix the chemotherapy treatments and prepare himself for death. He refused. But the chemotherapy was accompanied by excruciating bouts of pain.

it was so bad, Rosendahl said, The pain that shot up and down his back would not let him sleep. He was also immobilized on his back for much of the day. He began to develop bedsores.

Traditional pain medications like Oxycodone only worked for short spurts of time, and he began feeling as if he needed it more and more – unsurprising given that many painkillers are powerfully addictive.

Medical marijuana, he says, gave him his life back. It was the only substance that provided him with any relief. He takes it by alternating between a vapor and a cooked down butter that he spreads onto organic toast.

He is getting a full nights’ rest. The pressure sores are gone. He has an appetite. He isn’t cancer-free, but his doctors say they are amazed with his progress.

When it came time for council to debate action with regard to its earlier ban, following the rapid collection of signatures supporting a measure to repeal, Rosendahl used his own story to voice favor for lifting the ban. He said it became personal, and he at one point asked his fellow council members to look at him and ask themselves whether they were Ok with taking away his pathway to life.

His words apparently struck a chord, as the ban was ultimately repealed.

Now, we await a vote in May with three separate options that will determine what the face of medical marijuana distribution will look like in L.A.
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California medical cannabis would be regulated in much the same way alcohol is if Assemblyman Tom Ammiano of San Francisco is successful in the passage of his bill, AB 473.

Our Los Angeles medical marijuana lawyers understand that Ammiano’s primary goal is to keep medical marijuana protected by introducing regulations that will hopefully reduce the amount of attention our state – and our growers, dispensaries and patients – have received from overzealous federal regulators.

The bill, as it’s written now, would regulate marijuana similar to the way that alcohol is overseen. Where the Alcohol Beverage Control has oversight of the state’s liquor stores and bars, medical marijuana would be overseen by the Division of Medical Cannabis Regulation, which would be headquartered in San Diego. This division would be under the control of the ABC.

Ammiano called it getting marijuana “into the right hands.”

There would be an adoption of statewide standards and across-the-board fees for things like how medical marijuana is cultivated, transported, taxed and sold.

The bill doesn’t currently specify what all those exact standards will be. The plan is to have legislators flesh it out further as it moves through the various committees and then on to a final vote.

Ideally, Ammiano said, the bill would move California closer to the regulatory direction of Colorado, which regulates every aspect of medical cannabis – from seed to sale.

Despite being the first state in 1996 to approve marijuana for medicinal purposes, California has always been at somewhat of a disadvantage for that reason. Being first meant there was no blue print for success. Our approach of a de-centralized regulation has left us vulnerable to federal interference – much more so than other states that had some idea of what not to do.

With a patchwork of varying laws and fees and bans and moratoriums, there are no clear rules from district to district – and sometimes not even within the same district.

Ammiano’s measure attempts to correct a lot of that.

Still, medical marijuana advocates are feeling cautiously optimistic. A similar measure that Ammiano introduced in 2012 died in committee. That measure would also have resulted in the creation of state board that would have generated and enforced a uniform set of laws on all aspects of marijuana production and sale.

Opponents say the bill would do little more than encourage an industry that is already out-of-control.

This is about ensuring that each patient who needs and is prescribed marijuana has safe access to it.

Ammiano described California’s approach to medical marijuana as “chaos,” saying cities want guidance, dispensary owners live in constant fear and patients have serious concerns amid all the infighting about how they will get their medical needs met.

Meanwhile, the California Supreme Court is slated to decide sometime in the next two months whether local government has the right to initiate a ban on medical marijuana dispensaries. Doing so would be in line with federal law, but would directly contradict state law.
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As local and federal officials continue their raids on California’s medical marijuana facilities, the ACLU has filed a massive public records request of hundreds of agencies in dozens of states, seeking to learn more about the militarization of both technology and tactics employed by these law enforcement organizations.

Our Los Angeles marijuana lawyers applaud this effort, and will be eagerly awaiting the results of this research, though we expect there will be a fair amount of push back from authorities regarding whether those records should even be handed over in the first place.

The ACLU’s Center for Justice notes that local, state and federal authorities are increasingly being equipped with military vehicles, weapons, training and sometimes even actual military assistance in the course of traditional law enforcement activities. The first concern is that applying military tactics in a civil setting boosts aggressiveness and erodes civil liberties. Additionally troubling is the fact that such measures are reportedly being used disproportionately in poorer neighborhoods occupied predominantly by minorities.

In most cases, these techniques are being employed by SWAT teams.

What the ACLU wants to know is how frequently SWAT teams are deployed in the first place, what kinds of weapons these agencies are using, who is paying for those devices how many people are hurt in the course of operations involving SWAT.

Specifically, the ACLU wants information on the use of:

• GPS tracking devices;
• Unmanned aerial vehicles, also known as “drones”;
• Electric shock handcuffs;
• Military weapons or vehicles that have been either obtained or funded by federal authorities, such as Homeland Security and the Department of Defense.

Another similar request was filed with state National Guard agencies with regard to cooperative agreements these agencies have with local law enforcement departments and also how many incidents of contact National Guard soldiers have had with civilians.

As the basis for its request, the ACLU noted a series of 10 incidents it had uncovered in its report, “Towns Don’t Need Tanks, The Militarization of Policing America.” Among those incidents noted:

• A 9-year-old girl who was shot and killed by police in the midst of a drug raid in which a flashbang – used in wartime raids – was thrown threw the window and onto her bed by police. The bed caught fire and the police, apparently disoriented, reportedly burst into her bedroom moments later and shot her in the neck.
• An announcement by police in Arkansas that they plan to patrol civilian streets in full SWAT gear with AR-15 assault rifles;
• A SWAT team in Arizona fired 60 shots at an Iraq War veteran, killing him, in an apparent multi-house drug raid;
• A SWAT team in Colorado shut down an entire neighborhood for more than four hours to scour the area for a man who was suspected to have stolen a bicycle and a cart full of groceries from Wal-Mart.

While there is no specific mention of marijuana-related raids, many of the incident involved did mention drug raids in general. As we in California are well aware, these incidents are ongoing and increasingly aggressive.
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The story of medical marijuana patient Daisy Bram and her battle with local authorities is heartbreaking.

Our Los Angeles marijuana lawyers wish we could say it’s isolated. We wish we could at least say that it was an ordeal she only had to endure once.

Sadly, it’s been an ongoing nightmare for the young mother from Tehama County.

Back in September of 2011, the young woman was heard on tapes wailing as county child welfare officials removed her two young children – including a one-month old who was still breastfeeding – from the home she shared with her partner. She cried over and over again for her babies, pleading with authorities and asking how the youngest would eat.

They did not answer her. Instead, they placed the two young children in foster care – for six months.

The reason? Bram is a medical marijuana patient and her partner is a cultivator. The pair had 38 medical marijuana plants in a garden in the back yard. Both were charged with felony marijuana possession, possession of marijuana with intent to sell, child endangerment and child abuse. The latter two charges were based on the fact that marijuana was in a home where young children were present and that Bram was breastfeeding her child while also consuming medical marijuana.

Not only were the children taken from her and placed in foster care, they were reportedly medicated against her will. Eventually, the two parents moved to another county, regained custody of their two children and had another.

Now, they are reliving this terrible experience. The two were again arrested in January on the same charges. This time, all three children – including a 3-month-old – have been placed in foster care. The raid in this case came the day before a court hearing was scheduled for the disposal of the earlier case. In addition to taking her children, authorities also reportedly seized her 12-year-old vehicle – the only car she owns – claiming it was purchased with illicit funds from the sale of marijuana. They took it from the court parking lot when she arrived to family court for a hearing on the children.

The National Organization for the Reform of Marijuana Laws is advocating for the dismissal of the case, as well as the return of her children back to her care. NORML sent a letter to the family law judge overseeing the case, underscoring that that there is no scientific evidence that marijuana usage by a breastfeeding mother exposes an infant to danger. Further, the group said that marijuana growth in or around a home is actually safer than a number of other household plants – and exponentially safer than tobacco use.

What’s more, the mother claims that while in foster care, the children are not being properly bathed and clothed. They have shown evidence of bruising and scratching. One has a chipped tooth, the other a black eye. She told local media she is desperate to get her children back. And yet, the state is actually mulling plans to place them up for permanent adoption.

Again, this is a woman who is a medical marijuana patient and has a legal right under state law to consume marijuana for medicinal purposes.

She has stopped using the drug, although she remains in chronic pain, and she has separated from the children’s father – all in a desperate effort to get her children back.

Cases like this should never happen. Yet despite promises from federal authorities as high up as Obama not to pursue criminal charges against medical marijuana patients in states where consumption is legal with a prescription, it continues to happen.

We’re here to help.
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As our Los Angeles marijuana lawyers recently reported in our Marijuana Lawyer Blog, former top officials with the U.S. Drug Enforcement Administration have been vocal in their calls for nullification of marijuana legalization in Colorado and Washington.

In the aforementioned entry, we specifically stated it was clear that these individuals weren’t uninterested parties, as the failed drug war policies had been their livelihood.

Now, a new report from U.S. News & World Report seems to indicate that at least two of those eight individuals who signed the open letter to the Senate Judiciary Committee actually are continuing to profit by keeping marijuana classified as a Schedule 1, illegal narcotic – despite volumes of evidence regarding its valid medicinal properties. This clear conflict of interest should be taken into account by legislators and federal authorities as they consider the appropriate next step.

One of those individuals is Robert DuPont. Under former Presidents Nixon and Ford, DuPont was the White House drug czar. The other is Peter Bensinger. Back in the 1970s, Bensinger was the DEA administrator. Together, these two operate a company called Bensinger, DuPont & Associates. Their business model would be largely defunct if marijuana were deemed legal for recreational purposes. Presumably, employers would not be able to fire someone – or refuse to hire them in the first place – for having smoke marijuana in recent weeks, anymore than they could for a person who drank a glass of wine for dinner.

It’s understandable that these men went into the business that they did. They had a certain expertise in the field. They knew that the policies upon which this business model was founded would be in place for the long-term. However, to assert that their opinions stem solely from an altruistic attitude toward the greater public health and human welfare is just flat-out false. These individuals are penning letters that promote public policies that in fact make them wealthy.

But perhaps even more than that is the feeling for these individuals that their life’s work may have been wasted. That is, public opinion is changing. A 2011 Gallup poll found that for the first time, more than half of all Americans support the legalization of marijuana for recreational purposes. A policy shift is inevitably going to follow. It’s a question of when.

When these men look back at the bureau that oversaw the prohibition of alcohol in the 1920s and 1930s, it ended up that all that time, energy money had been wasted. The freedom to imbibe prevailed. So what legacy had been left by those who worked so hard against it? What legacy will be left by those who for decades had overseen the failed War on Drugs?

Ethan Nadelmann, executive director of the Drug Policy Alliance, said such a realization must inevitably be “demoralizing.”

But it’s not just these men. As we recently mentioned in another entry of our Marijuana Lawyer Blog, those who have been most vocal against legalization have almost without exception had an economic interest in keeping it illegal. Many include alcoholic beverage distributors, who legitimately fear a significant dip in sales, police unions, which receive federal grant money to continue to combat illegal drugs, and private prisons groups, which profit enormously with the lock-up of individuals jailed for marijuana-related crimes.
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