AANL7

ASK A NORML LAWYER - INSTALLMENT 7

Q: I was placed on deferred adjudication probation for possession of marijuana in a small Texas county, and was ordered by the judge to take the 15 hour Drug Offender Education Program.  The only class available in town conflicts with my work schedule, and I don’t know what to do.

What would happen if I finish the probation but don’t complete the class?

A: Well, that’s a good question and it’s definitely better that you’re asking it now, rather than waiting to find out what might or would happen later.

But, let’s back up a step.  I don’t believe your question actually encompasses what would happen.  It makes a false assumption.  Frankly, if you do not complete the class during the required time period you will not “finish the probation”.

Several months before a probationer’s term expires, any Community Supervision Department is going to automatically review the file to see whether or not the probationer has complied with all the terms.  Obviously, this also happens on a monthly basis as well, if the person is on a reporting probation.

What would happen, possibly 3 months before the probation ended, and possibly sooner than that, is that a Motion to Revoke Probation would be filed by the Probation/Community Supervision department.  This might be done by the person’s actual probation officer.  In larger counties, it is usually prepared by someone else – someone who has never even met the defendant and has no idea what the particular circumstances of the case are.  I say that to emphasize that your specific situation, which sounds like it should be considered, almost definitely will not be considered in the determination of whether or not the Department asks the Judge to revoke your probation.

Also, you say you are on deferred adjudication probation.  What that means is that the judge postponed (deferred) finding you guilty (adjudicating you guilty) and won’t ever find you guilty based on your plea… if you successfully complete the terms of the probation.

If you had even a halfway decent lawyer represent you when your case first went to court then this would have been explained to you.  But perhaps you had a crummy lawyer, who didn’t explain the situation properly, or, unfortunately in some small counties they encourage people to represent themselves.  (I say “unfortunately” because a doctor who treats himself has a fool for a patient.)

Bottom line: completing the 15 Hour Drug Offender Education Program was part of the “agreement” you made with the court, in return for the deferred adjudication, i.e., not being convicted.  I’ll address whether or not that was actually a good bargain later, but let’s get back to answering the first question.

So, if you do not complete the class, eventually Probation will complain that you have violated the terms of your agreement and they will “notify” the judge.  I put the word “notify” in quotes, because what happens in most places (I suspect – it certainly happens around these parts) is that the Judge gets a huge stack of papers put on his desk, all of which are Motions to Revoke Probation or Motions to Revoke Bond, and other items that have nasty consequences for my soon-to-be clients.  Many judges rubber stamp these notices without doing much reading of the paperwork, and, even at the highest level of scrutiny, the Judge is not making a decision that you actually violated your probation, simply that the allegations, if proven, would constitute a violation. 

Then there’s one more step.  The judge chooses to either send a summons to the probationer, telling them they have to appear in court, or, much more likely, the judge issues a warrant for their arrest.  The most common outcome in that case is not that the police hit the pavement immediately looking to arrest you, but that they simply wait for you to walk into your regularly monthly meeting, and they arrest you there.

Now, I realize that in answering your question, I have yet to offer any solutions, and that I may seem unsympathetic to your plight.  I am not.  I feel for you.  There is no doubt that probation can be a something between a not-so-light inconvenience or even a huge pain in the you-know-what.  (Which is why I never advise my clients that probation is a good option; especially my clients that like to smoke marijuana.)

But now that you are on probation, you are much better off complying with the conditions than risking an almost certain revocation hearing.  Talk to your probation officer about other options.  There may be night and/or weekend classes available in a nearby larger county.  Or daytime classes somewhere else if you work nights and weekends.

Your probation officer wants you to keep your job.  (You do know this is largely about money, right?  Well, they want you employed so you can pay your $80-$100 per month to them!)  Perhaps you could get his or her permission to substitute an online course instead. 

However, at some point, whether probation loosens the noose a bit or not, you will almost definitely have to take that official 15 hour drug offender education program.  Your driver’s license can be suspended indefinitely  if you don’t. 

You’re in a tough spot no doubt.  But at this point, making the class somehow fit into your schedule is in your long term interest.  Good luck.  And get a lawyer that doesn’t put you in this position next time.  Or at the very least who explains what it is that you are getting yourself into.

Happy holidays everyone. ~

 


AANL6

ASK A NORML LAWYER - INSTALLMENT 6

Q:  I heard that the Federal Government will not be imposing mandatory minimums and is easing up on states that pass decriminalization legislation… is that true?

A:  Well, sort of. At least things are moving in the right direction. Let’s start with that. Let’s start with the good news portion of what you have heard.

Eric Holder, the Attorney General, and head of the United States Department of Justice, has made two recent announcements about new federal guidelines for marijuana (and other controlled substance) prosecutions.

Under recent guidelines, the Federal Government is not going to interfere with States who have legalized marijuana, despite there still being an existing conflict with Federal laws. (Actually, possession of even a small amount of marijuana is a federal misdemeanor, although, I don’t know of any prosecutions under that statute. However, the conflict remains.)

Eric Holder announced in August that although the Department of Justice could file suit in Federal Court to attempt to nullify or void the State laws as in conflict with Federal laws, that he would forgo that option.  If…

Ah, I said…“If”. What’s the “if”?  Well, I said we would start with the good news; now let’s tackle the not-so-good news…

In the same memorandum to US Attorneys all over the country that announced this “hands off” policy, the Department spelled out eight areas of concern that would trump the general new rule of federal non-interference.  Eight enforcement priorities that “are particularly important to the federal government”.  These priorities are:

(1) Preventing the distribution of marijuana to minors; (2) preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; (3) preventing the diversion of marijuana from states where it is legal under state law in some form to other states; (4) preventing state authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; (5) preventing violence and the use of firearms in the cultivation and distribution of marijuana; (6) preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (7) preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and (8) preventing marijuana possession or use on federal property.

Wow. That’s a lot of priorities. And the reason that’s in the not-so-good category of the news is that a list that huge – and vague – leaves way too much room for “prosecutorial discretion”. That term is often a euphemism for a prosecutor deciding not to charge someone with a crime, for some non-purely legal reason.

But in this case, one legitimate fear of the new policy is that individual US Attorneys – and there are 93 different jurisdictions – will all come up with their own interpretations of those priorities.

For example, it is almost a 100% certainty that some marijuana from an it’s-legal state will inevitably make its way next door to an it’s-not-legal state. And does anyone think that no one under 21 (or does the memo mean under 18 when they say minors?  Who knows…) will be able to get their hands on some marijuana? Of course not.

A legalized and taxed and regulated market could easily reduce the amount of marijuana available to minors – but it won’t eliminate it. That’s impossible. So do those two facts alone – that some marijuana will be headed out of state, and that some of it will end up possessed by minors – give the Department of Justice the ammunition they need to go after States willy nilly? No state will be able to completely prevent everything on the list.

I hope the answer is that the Feds will indeed back off and allow states room to grow their new policies. And growth will include growing pains. But let’s not chuck the baby out with the bathwater.  At least there is an official acknowledgement that Federal enforcement of marijuana laws needs to be de-prioritized.

Q:  You didn’t answer the part of my question about mandatory minimums. Wasn’t there something new (and good) on that as well?

A:  Thanks for reminding me. Yes! There is (we hope) good news on that front as well…

The Department of Justice announced that in (many?/most?) cases they will be using a unique legal mechanism to get around laws that would otherwise force Federal judges to impose mandatory minimum sentences in (many?/most?) drug cases. The exceptions to the new rule, as discussed above, are vague enough that no one knows whether this will apply to many or most or only a few cases.

Mandatory minimums are triggered when a defendant is convicted of possessing a certain quantity of a certain drug. If you are below that quantity, then the mandatory minimums don’t apply.

So, going forward, Eric Holder has authorized his US Attorneys to not list the amount of drugs possessed in indictments. So where an indictment in the past might have accused the defendant of “conspiring to possess [X amount] of [marijuana/cocaine/whatever]” it would now simply read “John Smith conspired to possess [marijuana/cocaine/whatever]” with no mention of the amount. If a defendant entered a plea, the judge would not be forced to use mandatory minimum sentencing guidelines.

We shall have to wait and see whether the plethora of exceptions swallows the new rule. Then again, on both of these fronts, any move in the right direction is good news.  Isn’t it? ~

 


AANL5

ASK A NORML LAWYER - INSTALLMENT 5

Q: When is Texas likely to make marijuana legal?

A: Great question…but I don’t exactly have a crystal ball.  However, I am happy to report that there is some modicum of progress on this front.

The Texas Legislature meets every two years, and is in session now. There are two bills that have been introduced in the Texas House of Representatives that would be substantial progress in the fight to completely legalize – or, as I like to say, “re-legalize” – marijuana.

In no particular order, the first bill is House Bill 184. This proposed new law would amend Health & Safety Code Section 481.121 “Possession of Marihuana” and add a new lower classification of offense.  Currently any usable amount of marijuana less than 2 ounces is a Class B misdemeanor punishable by up to 180 days in jail and up to a $2000 fine.

HB 184 would add this language, “(b) an offense…is…a Class C misdemeanor if the amount of marihuana possessed is one ounce or less”. Class C misdemeanors are the level of traffic offenses in Texas; they are punishable by a fine only, in this case up to $500.

There are some other provisions of HB 184 as well. It would make possession of one ounce of marijuana enhanceable to a Class B misdemeanor, if the accused had 3 prior convictions of the Class C variety.  However, deferred disposition would be available (for all practical purposes) on most if not all Class C possession charges. If a person successfully completed a deferred (think: it’s like taking defensive driving to avoid a speeding conviction) then my reading is that those “priors” would not be usable to enhance.

Possession of one to two ounces would still remain a Class B under HB 184. Obviously, it’s not a perfect solution, but it’s a step in the right direction.

House Bill 594 is the second proposed new law.  It would do two things. It would allow doctors in Texas to be able to speak to their patients about the medicinal use of marijuana without fear of any “administrative, civil, or criminal investigation” being instigated. Plain language? It would alleviate their current justifiable fears that they could be stripped of their license to practice, just by exercising their first amendment rights to speak to patients – or anyone else – about their opinions.

Secondly, it provides an affirmative defense to prosecution for possession if “the person possessed the marijuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition”.

Note that the language does not even specify an amount of marijuana - which leads me to believe that a doctor’s “recommendation” that a patient could use marijuana would be potentially a defense to any amount. (The flip side of that is that when someone was caught with a huge amount of marijuana, more for example than could be consumed by any one person within any reasonable amount of time, the State would probably be able to successfully argue that the person was not “possessing it” within the meaning of the statute.)

Q: What can I do to help get these bills passed?

A: You can contact your state representative, and ask them to co-sponsor the bill. If you don’t know who that is, google the phrase “find my house rep texas”. The first website that comes up allows you to quickly search for your rep.

Then you could email him or her and ask that they support the bills. Or better still, you could write them a letter, if you have time. Or better again you can go visit them in person.

Texas NORML recently had a very successful “Lobby Day” where members of our organization met at the Capitol, and split up into groups of 7 to 8 people. Everyone who came eventually went to see their personal representative. Because we didn’t have prior appointments, we mostly met with staff because often the elected representative was not even in the office (they were having floor votes at the time).

But we did meet with some actual Reps, and even convinced one to go and co-sponsor both bills the next day. You would be surprised but many reps and even their aides are not always aware of what bills are still in committee, waiting for a possible hearing. There are expected to be over 6000 bills filed this session, and if you want your Rep to know (a) that the bill exists and (b) that you want him to support it, then you are absolutely the right person to march down to the Capitol and ask politely to meet with the Rep or one of their aides.

Yes, it’s an uphill battle. But we are starting to actually gain some real traction. The question is not whether marijuana will be legalized in Texas, but when?

The more the elected representatives hear from the people the sooner positive change will occur. ~

 

 


AANL4

ASK A NORML LAWYER - INSTALLMENT 4

Q: Why/how did Tommy Chong go to prison for paraphernalia? Isn’t that a very minor offense? Doesn’t every head-shop employee “commit” the same act or acts that he did by selling bongs?

A: Under Texas state law the offense of “Possession of Drug Paraphernalia” is as minor as they come, literally. It’s a Class C offense, a fine only non-jailable offense. But Chong wasn’t prosecuted under any state law. Instead, the Feds went after him.

There’s a reason for the phrase, “Don’t make a Federal case out of it”. Once something starts being handled as a Federal case, it’s automatically a big deal. But that doesn’t tell the real story of U.S. vs. Tommy Chong. Unfortunately, he became the victim of unfettered prosecutorial discretion and naked political ambition.

In 2003 the US Attorney - which means head Federal prosecutor - for Western Pennsylvania decided she could make a name for herself by going after someone that had already made a name for themselves. Tommy Chong was her unlucky target. 

When it was all said and done, more than $12,000,000.00 of our tax dollars had been spent on Operation Pipedreams and related prosecutions. Tommy was indicted for his involvement in Chong Glass/Nice Dreams, a company started by his son that was using the Chong name for selling bongs over the internet. 

More specifically, he was indicted under United States Code Title 21 Section 863, which reads, in part, that it unlawful for any person to sell or offer to sell drug paraphernalia. Now Federal criminal laws are supposedly limited to offenses that are multi-state, or are referenced specifically in the Constitution, so the law includes “using the mails or any other facility of interstate commerce” as one of the manner and means. 

Since the company was using the internet for a sales point, and mailing customers the products, there was never a question that the Feds couldn’t get involved if they so chose to. But wait… it wasn’t even Tommy’s company, and besides, I hear you asking, he went to jail for that? Was probation an option?

Yes, probation was an option, and in fact, Tommy was the only one of the fifty plus defendants who (a) had no criminal history and (b) was sentenced to jail. (Some of the other defendants who had prior offense on their record received jail time as well.)

So there were people more responsible for the “crimes” this company was involved in, and many of them received lighter sentences. Is it fair to guess that this was due to Tommy’s celebrity?

Actually, you don’t have to guess. After Tommy Chong was sentenced to 9 months in Federal lockup, the US Attorney said “He (Tommy Chong) wasn’t the biggest supplier.  He was a relatively new player, but he had the ability to market products like no other.”  In other words, they went after him for who he was; the famous person, the celebrity.

So to the second part of your question, about head-shop workers…? Well, there are two answers, I suppose. The first is that, since using the internet, using the telephone, or using the mailman in any way connected to the business gives the Feds jurisdiction - and good luck with your business model if you don’t ever use any of those - then indeed anyone connected to the business of selling bongs is subject to the same penalties as Tommy Chong. The statute provides for a maximum punishment of 3 years.

But for all practical purposes, I doubt we’ll ever see a Federal case like that again. Once was already more than enough. ~

 


AANL3

ASK A NORML LAWYER - INSTALLMENT 3

I was recently contacted by a journalism student for a story she was doing in the student newspaper about the War on Drugs.  Here is the email interview question and answer exchange done for that story…

Q: As a lawyer, you’re very familiar with people committing various violent crimes for a majority of reasons. What do you think are the reasons for the violence associated with the trafficking of illegal substances?

A: The violence associated with illegal trafficking of drugs is due to the substances being illegal, not inherently due to the substances themselves. There was no violence associated with any of the substances until they were criminalized(all things start legal, not illegal, after all). Violence associated with controlled substances is exactly 100% analogous to the violence associated with alcohol during prohibition, and for the same reasons (see: Al Capone). Once alcohol was re-legalized the violence surrounding it disappeared.


Q: Do you believe that a legal market of marijuana will make an economic impact? Why or why not?

A: Of course. The plant is just a weed, literally. The price of marijuana is 80-90% due to the additional costs imposed by criminalization (physical, economic, psychological – like the risk of being put in jail or prison) and perhaps 10-20% due to actual production and distribution. Also, if it were regulated (read, taxed) then there would be an economic impact to the states and feds in terms of additional revenues. Perhaps the greatest economic impact would be that we would stop wasting billions, and even trillions of dollars prosecuting and incarcerating people for the offense.

Q: If marijuana were to be legalized, what kind of precautions do you foresee being taken?

A: Marijuana should be regulated like alcohol or wine, and for adult use. The same numerous regulations imposed on the alcohol industry could easily be cut and pasted onto a legal and regulated marijuana industry.

Q: Why do you think the US government has continued the prohibition of marijuana?

A: #1, because they (the legislators who make the laws) are scared of sounding like they want your children to smoke crack. That’s how the opponenets of re-legalization frame the argument, and it is much easier for politicians to keep the status quo than to risk explaining why it is better to re-legalize to their constituents. 2 nd , Big Pharma is a huge opponent of marijuana re-legalization because they want to sell people pills at $20-50 a pop (and higher) rather than have them smoke really really cheap marijuana for the same ailments. Consequently they bribe (contribute) the politicians to not only keep the status quo, but to increase penalties.

Q: Now, for my research paper I did not delve into the cocaine industry and not many people seem to bring it up in legislature. How do you think that the legalization of marijuana will impact this drug market and why?

A: Once people see that re-legalization of marijuana is not the end of the world, and that it in fact works out pretty well, it’s possible that the re-legalization of marijuana will become a blueprint to end the Nixon’s War on Drugs as we know it. But that’s a much longer time frame. ~

 

 


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