Archive for the ‘marijuana’ Category

Last month in Marijuana DUI (Part I), we discussed the extreme difficulty the scientific community has had in measuring the effects of marijuana on a person’s ability to drive. In part two of this blog post, we now turn to the practical difficulties criminal defense attorneys face in defending marijuana DUI charges.

Jury Selection on a Marijuana DUI Case

As a starting point, it is pretty much the experience of every defense lawyer that jurors tend to analogize marijuana to alcohol when it comes to DUI.  As we discussed last month, there is no .08 limit for marijuana for THC.  Consequently, jurors cannot convict a person based on a “number” alone.  The criminal cases then turn when the prosecuting attorney proves that the person was actually impaired by the marijuana use.  But how does marijuana impair a person’s ability to drive?  Jurors have a wide range of views and experiences on this subject. Many jurors have never used marijuana, and so they are inclined to think of it in terms of drugs they have tried such as alcohol or prescription pills. Additionally, some jurors may have used marijuana in their youth and experienced a strong, somewhat hallucinatory experience as a first-time user. As one would imagine, asking prospective jurors about their experience with illegal drugs can be a little awkward.  In urban environments such as Spokane or Seattle, jurors have a bit more anonymity during the jury selection process. However, in rural locales such as Okanogan County, Stevens County, Lincoln County, or Grant County, jurors are much more inclined to actually know one another.  A defense lawyer or a prosecutor is just not going to get a straight answer out of the jury panel on the subject of marijuana use.  Additionally, jurors in those rural counties such as Okanogan or Stevens County are going to have, on average, less accepting views toward marijuana use as a whole than say Seattle, for instance.

Marijuana Use and Observation of the Police

A prosecution for a marijuana DUI usually involves a police officer testifying about the ways he or she believed that a driver was effected by marijuana or THC. Jurors come to court knowing what a drunk person looks like, but often have no idea about the ways marijuana effects (or doesn’t effect) a person. Drug recognition experts (DRE’s) usually testify that a driver having consumed marijuana will have dilated pupils, red or bloodshot eyes, a lack of convergence of the eyes, an elevated pulse rate, elevated blood pressure, eyelid tremors, and disorientation. Compared to DUI involving alcohol, much less is taught about marijuana DUI investigation at the police academies. Officers seem to exchange tips on these investigations, and the techniques are frequently the subject of discussion in online police forums, see here, for example. Much of what the police study comes from the NHTSA manual Drugs and Human Performance. Unfortunately this volume is full of some pretty odd opinions and discredited techniques on such investigations. The manual mentions the “green tongue” phenomenon, or green coating on the tongue that a smoker of marijuana is “supposed” to have.  Additionally, the manual opines that marijuana cigarettes “are often laced with adulterants including PCP or crack cocaine,” which is something I certainly don’t hear about “often” in my practice as a defense lawyer. Officers often describe looking closely with their flashlight for flakes of marijuana that might be on drivers’ laps, or remain on the tongue or mouth of a user after smoking a marijuana cigarette.  Officers also seem to be of the opinion that hanging tree-shaped air-fresheners indicate that the driver has been using marijuana, according to above mentioned forum.

So as you can see, the current state of marijuana DUI enforcement leaves much to be desired.  The practical effect of all this is that drivers are often at the mercy of the subjective opinions of the officer as to how he or she looked.  These “evaluations” for marijuana intoxication are typically not video-recorded.

What do you think about how society should deal with this issue?  Please share you thoughts, opinions, or experiences on this subject in the comment section below.

(The author Steve Graham is a criminal defense attorney practicing in eastern Washington.  See his further information on the laws DUI or marijuana in the State of Washington.)

In the early days of medical marijuana dispensaries, the risk was all about possible arrest and prosecution.  Judging by recent news stories this week, the greatest threats now seem to be from: 1) the Internal Revenue Service, 2) new regulations and rival dispensaries, and 3) gangsters who rob dispensaries.

Taxation of Marijuana Dispensaries

In 2009, after Obama took office, his attorney general Eric Holder announced that the federal government would not prosecute marijuana dispensaries that were operating legally under State and local laws.  Dispensary owners probably breathed a sigh of relief.  Little did they know that they would face perhaps larger problems from the IRS.  The IRS is currently auditing every dispensary across California, and is apparently disallowing a lot of deductions that many took for granted.  Here is the issue: Under section 280E of the federal tax code, people selling controlled substances in violation of federal law can’t claim any tax deductions for their “business”.  This statute was intended so that Al Capone types would have to pay taxes on their gross, and they can’t deduct all their “expenses” in figuring their “profit”.  The “expenses” of selling controlled substances means, the initial cost of the drugs from the suppliers, transportation costs, the costs of paying employee dealers, etc. This makes sense, I suppose, when going after black market criminal enterprises, but this makes less sense when going after gray-market medical marijuana dispensaries that are trying their best to serve patients.  Some of the dispensaries are faced with  millions of dollars of past due taxes.  I blogged last December about the Washington Department of Revenue gouging marijuana dispensaries in Spokane.

New Regulations & Rival Marijuana Dispensaries

In Colorado, the number of dispensaries operating state wide grew to over a thousand after the Obama administration indicated that they would not be prosecuting dispensaries.  These 1000 dispensaries are now facing increased regulation from the Colorado legislature.   In Colorado, the legislature banned convicted felons from operating dispensaries, and then began requiring dispensaries to start growing at least 70% of their own marijuana.  In Los Angeles today, the city announced that they would be shutting down 140 dispensaries for the failure to follow the city regulations.  Meanwhile, dispensary owners from Spokane to Seattle are bracing themselves for SB 5073, also known as the Kohl-Welles bill, which would outlaw just about every dispensary in Washington that exists today.  With all these threats, you would think that the dispensaries would be joining together.  In fact, the dispensaries seem to be fighting each other, or at least their customers.  Try googling “Spokane Medical Marijuana”.  What you see is a bunch of online “reviews” where people are just trashing dispensaries.  You really don’t see the same thing in the Seattle listings.

Robbery of Medical Marijuana Dispensaries

If a visit from the IRS isn’t scary enough, check out this video footage of a Washington medical marijuana dispensary getting robbed.

The police reports in the case indicated that the victim tried to spray the robbers with mace but had difficulty in using the canister. The robbers were known to the victim because they were patients in the past. About 10 pounds of marijuana was stolen.

What do you think of all this?  If you owned a dispensary, would you be looking for another line of work?

While marijuana is not legal in British Columbia, its possession in smaller quantities is certainly more tolerated then in Washington State. And for a B.C. resident, being caught at the U.S. border with even the smallest amount of marijuana can be a harrowing experience. A marijuana possession charge in B.C. is often handled by a single police officer who conducts a search and then may or may not write a ticket. But in recent years at the U.S. border, Canadians caught with marijuana have been detained up to 8 hours while numerous federal agents search every nook and cranny of their vehicle and personal belongings, while others agents watch with one hand on their holster. I have lived and practiced law in Washington State’s border counties since about 1994, and while policies of marijuana in other law enforcement agencies have loosened, it seems that the federal agents take marijuana more seriously then ever. Since the 9/11 bombing in 2001, the number of agents at the border has tripled, but I am not sure how much safer the area has become. Marijuana at the border is such a distraction for federal agents, that one can imagine that if terrorists did want to enter the country that all they would have to do is send an advance guard of otherwise law abiding British Columbians with a gram or two of cannabis in their possession. I sometimes wonder if high-level U.S. officials resent the Canadians because a lot of the marijuana in Washington does come from British Columbia. Whatever the reason, Canadians are often shocked at the treatment at the border, and here are a few tips from a criminal defense lawyer on how to survive:

1. Be alert of the border locations. It is common to hear of a traveling Canadian stumbling upon a U.S. Border station on accident. Many of the major routes travel along or near the U.S. border. It is a common misconception to believe that you can approach the border and then ask to just loop around. However, once you approach the border station, you have already entered the territorial U.S. Occasionally, Canadians will simply drive near the border to wait for a friend arrival. Be aware of any signs that warn travelers with the following language: ‘Beyond this point all traffic must proceed directly to the border.” In other words, if you travel near enough to the border, you will find American officials waiving you in.
2. Exercise your right to remain silent. I can’t say I know a lot about Canadian constitutional law, but in the U.S. you have the right to remain silent and not incriminate yourself. And you need not wait until an agent reminds you of that right. If marijuana is found in your vehicle, do not make any statement admitting that you knew it was there. If the marijuana is in your suitcase, this might seem like a no brainer, but no one knows that your partner couldn’t have just left it there, and you just dropped him or her off 15 minutes prior.
3. You can’t talk yourself out of being charged. The agents couldn’t care less if the marijuana was a small amount or was personal use, your will always be cited and receive papers prohibiting your re-entry. I have seen marijuana cases referred for court in Okanogan, Ferry and Stevens County in the amount of .1 gram. And .1 gram is about the size of a grain of rice. The agents might imply that they will be lenient if you are cooperative, but I have never seen that to be true. Although some local law enforcement agents might let someone go without charging them, this just never happens with marijuana at the border.
4. Know what to expect. While the federal border agents might seem gung ho about finding marijuana in your vehicle, keep in mind that their federal counter parts in the U.S. Attorney’s office in Spokane won’t take the case if the amount of marijuana is relatively small. And by “small” I mean less than a hockey bag full. Let me explain this a little better. Bringing any amount of marijuana across the border is a federal offense in the United States, but in practice you will be referred for charges in State court in Ferry County, Okanogan County, or Stevens County. Once in state court, you could face up to 90 days jail for a misdemeanor marijuana charge, but will likely receive 1 day in jail or less. For possession of marijuana in an amount over forty grams, you could potentially face felony charges. For more on punishments see here and here.

In conclusion, there are many cultural difference between how the local Canadian authorities and U.S. Border agents view marijuana. Maybe in a future blog posts we can discuss how the Canadian border agents freak out when Americans show up with a car load of firecrackers, or handguns, or tazers.

What do you think of the way U.S. Border agents treat these cases? If you have a story you would like to share, please post it as a comment below.

I read in the Spokesman-Review last week that the Washington State Department of Revenue sent notices to medical marijuana dispensaries demanding collection of retail sales tax on marijuana sold. This letter took the position that the sale of medical marijuana does not fall within the sales tax exception for prescription drugs. But is this interpretation of the law really correct? Many dispensaries have begun collecting and paying sales tax to the Department of Revenue as a way of seeking legitimacy. However, isn’t paying the tax conceding that “medical marijuana” is somehow of lesser medical value than other prescription drugs?

Medical marijuana cannot be “prescribed” under federal law, but it is important to remember that the definition of “prescription drug” for purposes of Department of Revenue (DOR) regulations is different. Let’s take a look at the DOR code on this subject. Section 1 of RCW 82.08.0281 clearly states retail sales tax “shall not apply to sales of drugs for human use dispensed or to be dispensed to patients, pursuant to a prescription.” Section 4 of RCW 82.08.0281 clearly states: “‘Prescription’ means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state to prescribe.” How exactly does a doctor’s medical authorization for marijuana not fall under this definition? (See sample of authorization form.) Courts have ruled that the DOR is not to use a hyper-technical definition of “prescribed.” In the case Deaconess Medical Center v. DOR, 58 Wn. App. 783 (1990) the Washington Court of Appeals used the common dictionary definition of “prescribed” from Webster’s Third New International Dictionary 1792 (1966). The Webster’s dictionary definition of “prescribed” means “to designate or order the use of as a remedy.” Webster’s uses the term broadly, and provides the term in the following example sentence: “The doctor prescribed three months of physical therapy for my leg injury.” Simply put these dispensaries are the victim of a Department of Revenue shake down.

Let’s remember that medical marijuana dispensaries operate in a gray area of the law. The Washington voters legalized medical marijuana possession, but never provided for a clear legal mechanism for sick patients to obtain the drug. Not every sick cancer patient is able to tend to their own marijuana garden. Consequently patient cooperatives have sprung up, often acting in concert with activists. Most police agencies have held off raiding these dispensaries, but we only have to read yesterday’s Inlander article to see that the police are merely biding their time before further raids continue in Spokane. The truth is that the dispensaries are scared, and no dispensary is likely willing to refuse pay these bogus sales taxes to the Department of Revenue. The attorneys general that work with DOR can simply make a call to the criminal division of the Attorney General’s office to push for prosecution of dispensaries unwilling to pay these “taxes.” No dispensary wants to be the one to stand out and risk criminal charges. To put it another way, the uncertainty in the law makes these dispensaries susceptible to a form of blackmail. Revenue projections calculated by the The Inlander amounted to millions of dollars Olympia is getting from these patient cooperatives. This “sales tax” in turn will be passed on sick patients who can scarcely afford to pay more for their medicine.

You have to wonder also about the legality of collecting sales tax for an activity that is still in violation of federal law. Generally speaking, just because an activity is illegal does not mean that it is tax exempt. However, in the case of Marchetti v. United States (1968), the U.S. Supreme Court held that certain regulations that required the reporting and tracking of the activity for revenue purposes amounted to a violation of the right against self-incrimination.

Why is Washington trying to impose a sales tax on medical marijuana dispensaries when the State of California does not? The dispensaries in California seems to be a little more confident that they will not be raided, and enjoy more protection under their State law. They would be more willing to fight such a state action in my opinion. In Washington, Mike Gowrylow, a spokesperson for the Department of Revenue, explained “right now, every buck counts”. Quite simply the State is hungry for revenue from all sources. In my experience as an attorney who has defended clients from the Department of Revenue, the State often seems to come up with “creative” ways to apply taxes during economic downturns. One time I represented a client who received an assessment for taxes under questionable circumstances. We indicated out intention to fight it and appealed. About 6 months through the process, the Department just dropped the issue, apparently moving on to easier targets.

What do you think about this subject? Should these dispensaries have to pay sales tax? Do you think that all the dispensaries in Spokane will comply? Will these tax payments help legitimize these co-ops? Will more dispensaries be raided as the Spokane police have threatened?

I guess it makes sense that I only recently heard of the “synthetic cannabis” they call “spice”. After all, criminal defense lawyers are called to defend charges of breaking the law, and until now “spice” was perfectly legal. The term “spice” refers to various mixtures of herbs and chemicals that attempt to mimic the pharmacological effects of marijuana. The drugs are sold over the counter at smoke shops, and are marketed sometimes as “herbal incense” or “herbal smoking blends”. The drugs are typically not tested for in usual drug screens, but the use of such drugs can be determined by specific tests. On November 24th, the DEA took emergency steps to prohibit five varieties of the drug but there are numerous other variations.

I first heard of the drug by reading a post about it in the blog of James O’Rourke, a Portland lawyer.  James O’Rourke described the process of the drug’s restriction in Oregon.  I also heard about the subject again Saturday when I saw a T.V. news story about a driver who injured three pedestrians in downtown Seattle after allegedly smoking spice. See story:
As the news story explains, even the prosecutor and the defense lawyer were uncertain if the drug in question was even a controlled substance. If the man in questions is charged with vehicular assault, the prosecutor, under Washington law, can alleged that the defendant either caused the accident by driving while under the influence of alcohol or other drugs, driving recklessly, or with disregard for the safety of others.

Remember last summer when scientists released a new study claiming to link marijuana use with schizophrenia? See e.g. Reuters article.  Let’s face it, it is the government that has the split personality disorder when it comes to marijuana laws.  Can someone explain to me why there is a mandatory one day in jail for misdemeanor possession of marijuana in an amount under 40 grams (RCW 69.50.425), but a judge is not obligated to impose any jail for a person convicted of the felony of possession over 40 grams?  See page III-279 of State Sentencing Guidelines Manual. How about the huge disparities in the way in which marijuana laws are enforced from county to county and city to city?  For example the Seattle city attorney announced this year that he was not going to prosecute any misdemeanor marijuana cases period.  See source.   But in most rural counties of eastern Washington, marijuana enforcement is still in full effect.  In metropolitan areas of Washington, large medical marijuana dispensaries are tolerated, but in rural eastern Washington things are different.  Small-time medical marijuana grows are routinely raided in Okanogan, Ferry, Stevens, and Pend Oreille counties.  A new medical marijuana clinic in Okanogan County will soon be held (see story) – I guess we will see how that goes over.

As a criminal defense lawyer it is becoming harder and harder to explain to clients that there is any sense to the system.  Under federal law, even a first-time charge of simple possession of marijuana is enough disqualify a young person from eligibility for student loans.  In Washington, proposed Initiative 1068 would legalize possession of small quantities of marijuana.  This initiative would be on the ballot next year.  But would such an initiative really pass in Washington State if a similar initiative just failed in California?  I think people are getting discouraged about any change in the marijuana laws here in Washington State.

What do you think about the disparities in enforcement?  Do you think the initiative 1068 will pass next year?