Yakima Herald: “Yakima County’s first trial over a so-called medical-marijuana dispensary or collective quickly ended in acquittal Thursday afternoon. The Superior Court jury that heard the charges against Valtino Hicks of Yakima returned its verdict in less than 25 minutes, unusually quick for almost any criminal trial.”
The Spokesman-Review: “A Spokane jury rejected arguments Thursday that the state’s medical marijuana law allows for commercial dispensaries, convicting a supplier of multiple drug trafficking charges. Scott Q. Shupe, who co-owned one of the first marijuana dispensaries in Spokane, argued the state’s medical marijuana law enables dispensaries to supply card-carrying patients”
Bozeman Daily Chronicle: “Gallatin Valley medical marijuana businesses were open Tuesday, but many questions remained about what prompted federal raids of dispensaries across the state Monday. . . . The U.S. attorney’s office Tuesday said federal agents executed 26 search warrants in 13 cities and towns across the state in the first major crackdown on medical marijuana businesses since the industry took off last year. . . . the U.S. attorney’s office said the raids followed an 18-month investigation. However, federal officials did not make clear what distinguished the businesses raided Monday from other medical marijuana operations across the state, . . . . The businesses that were raided were some of the largest medical marijuana providers in the state“
See also:
Los Angeles Times: “Federal drug enforcement agents Tuesday raided two West Hollywood medical marijuana stores in the first such action in the city since the Obama administration decided two years ago to take a hands-off approach to dispensaries that abide by state laws. The dispensaries — Alternative Herbal Health Services and Zen Healing on Santa Monica Boulevard — are among four that the city has authorized to operate. . . . The DEA raided five of six dispensaries in West Hollywood in 2007, but has left the city’s stores alone since then.”
Arizona State Press: “A Republican state legislator who openly admits to smoking cannabis in the past is backing a measure that would reduce the penalty for possessing less than two ounces of marijuana. Rep. John Fillmore, R-Apache Junction, introduced House Bill 2228 in January.”
The New York Times had a story on March 2, 2011, entitled “Oakland’s Plan to Cash in on Marijuana Farms Hits Federal Roadblock,” which everybody who is contemplating becoming an owner in an Arizona medical marijuana dispensary should read. The story said:
“an exchange of letters between the city attorney and federal law enforcement officials has made it exceedingly clear that Washington will not tolerate plans for the large-scale marijuana farms the City Council approved last July. . . . just weeks before the city was set to issue the permits, the Council voted to stall the plan after the city’s attorney, John Russo, and a county district attorney warned the Council that the marijuana cultivation ordinance thwarted state law and that city officials could be held criminally liable.
On Jan. 14, Mr. Russo wrote a letter to the United States Department of Justice seeking guidance on the city’s legal standing. In a response, Melinda Haag, United States attorney for the Northern District of California, warned that ‘individuals who elect to operate ‘industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law.’ The letter went on to say that the Justice Department was ‘carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses‘.”
If you are considering becoming an owner of a medical marijuana dispensary in Arizona, you must read and consider U.S. Attorney for the Northern District of California Melinda Haag’s letter of February 1, 2011, to John A. Russo, the then Oakland, California, City Attorney. Here are some pertinent quotes that every dispensary and grower of any quantity, but especially large quantities of marijuana should read and consider carefully:
“I have consulted with the Attorney General and the Deputy Attorney General about the Oakland Ordinance.”
“growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities.”
“The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the Department. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana.”
“we will enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
“the Department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland. Individuals who elect to operate “industrial cannabis cultivation and manufacturing facilities” will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. Potential actions the Department is considering include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA.”
Clearly the Department of Justice intends to take legal action against those it believes are involved in the “industrial growing of marijuana.” The problem for all Arizona dispensaries that intend to grow marijuana is what is the difference between nonindustrial growing of marijuana and industrial growing of marijuana? This problem and the risk of criminal prosecution is especially great for Arizona medical marijuana dispensaries that intend to grow excess amounts of marijuana to sell to other dispensaries.
If Arizona medical marijuana dispensary owners think they can take cover under the Department of Justice memo of October 19, 2009, think again. This memo said only that the U.S. has a better use of its resources than to prosecute individuals (such as patients and caregivers) who are using medical marijuana in compliance with state law. The memo does not say that the Department of Justice will not prosecute medical marijuana dispensaries and their owners who are complying with state law. It says just the opposite.
“prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.”
For a related story, see “Medical Marijuana Cultivation Plan Antagonizes Feds in Oakland — and Arizona’s Plan is Similar.”
Norml: “Maricopa County Sheriff Joe Arpaio, already infamous for his treatment of immigrants and prisoners, has now set his sights on Arizona’s new medical marijuana patients following the passage of Proposition 203 by voters last November.”
Arizona Republic: “Arpaio already building special unit to target those who abuse statute. The plants that will ultimately produce medical marijuana in Arizona are not legally in the ground, but police agencies are already planning how their officers will try to enforce state pot laws while respecting a sick resident’s right to possess the herb.”
See “Arpaio on lookout for abusers of Arizona medical marijuana law” and “MCSO Sheriff creates Special Enforcement Unit to combat medical marijuana fraud.”
WZZM ABC TV 13: “Allegan county prosecutors will now decide whether to bring criminal charges against the owners of a medical marijuana dispensary in Holland. Police raided The Mix, a storefront on S. Washington last Thursday, based on what they believe was evidence that marijuana was being illegally sold.”
Arizona Republic: “What started out as a routine traffic stop Sunday night led patrol officers to seize 332 potted marijuana plants worth up to $1 million, making it the largest marijuana grow operation bust in Chandler history“
In Arizona, there are two ways that you can be charged with a marijuana related DUI:
First, you can be charged with DUI if you are under the influence of marijuana and your driving is found to be “impaired to the slightest degree.” It does not matter if you have a legal prescription for the marijuana. Arizona residents who will now benefit from the new Arizona Medical Marijuana law should be aware that their medical status will not grant them an automatic get-out-of-jail-card when it comes to DUI laws. If the State can prove the marijuana caused impaired driving, you can be charged and convicted of a DUI.
If the prosecutor is charging you with a Section 28-1381(A)(1) charge, he must prove that you were under the influence of marijuana, and your driving was impaired to the slightest degree. To prove you were under the influence of marijuana, the prosecutor will move to submit into evidence a blood or urine test showing the presence of marijuana in your system. A good marijuana DUI defense attorney will examine the evidence to determine how the urine or blood samples were collected and stored, and whether any compelling arguments can be made to suppress the evidence as inadmissible.
A good marijuana DUI defense attorney may also argue that the blood or urine tests do not show you were under the influence of marijuana, despite a test showing the presence of metabolites. Test results do not always distinguish between the psychoactive component of marijuana (“THC”) or its metabolite (“carboxy THC”), which is inactive and does not cause impairment, even though it can stay in your system for weeks. The presence of non-active metabolites do not indicate either impairment or when marijuana was last used or how often it was used.
Even the new Arizona Medical Marijuana law recognizes that someone may have marijuana metabolites that are inactive and do not cause the psychoactive responses caused by THC in marijuana. The new Arizona Medical Marijuana law states that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” The new law recognizes that there are going to be instances of someone lawfully using medical marijuana and still showing metabolites in their system when driving even though they’re not affected by it.
In addition to the state having to prove that you were under the influence of marijuana, the prosecutor also has to prove your driving was impaired. You don’t have to crash your vehicle for the prosecutor to prove your driving was impaired. Arizona law only requires the prosecutor to show driving is impaired “to the slightest degree.” The prosecutor will try to prove driving was impaired by introducing evidence of driving errors (even if they are minor), your physical appearance after you were stopped on the road, and performance on any Field Sobriety Tests. Note: decline the FSTs if asked to do so by an officer. These “coordination tests” are extremely difficult to pass and some officers will use them to find fault with whatever you do. It is naive to think if you show you can pass the coordination tests, the officer will let you go. Remember, you are not required by law to submit to FSTs. However, you ARE required by implied consent law to submit to a blood, breath, or urine test if requested by a police officer. If you do not submit to blood, breath, or urine, the police will get a warrant within minutes to take the sample and you will lose your driver’s license for a year. But always decline the FSTs as they hurt more than help.
The second way you can be charged with DUI is by merely operating a motor vehicle with any marijuana or marijuana metabolite (“THC”) in your system. If the prosecutor is charging you with a Section 28-1381(A)(3) charge, he is not required to prove your driving was impaired, only that it was in your system. This “zero tolerance” law creates an interesting question for medical marijuana users who legally use marijuana, and then drive a car days later when the inactive metabolites may be present. If they are stopped and tested for DUI, how do these medical marijuana patients know the metabolites are present if they do not cause psychoactive symptoms/reactions? A good marijuana DUI defense lawyer may make a constitutional argument that you couldn’t have known inactive metabolites were present in your system and therefore you shouldn’t be criminally liable when you are not under the influence of marijuana. If you have been arrested for marijuana or any drug DUI, you should discuss these charges with an experienced DUI marijuana lawyer.
In Arizona, a first time DUI offense involving marijuana is a misdemeanor punishable by a minimum one day to a maximum six month jail sentence, fines and fees ranging from $1,470 or more, a mandatory substance abuse program, and you must put an ignition interlock device on your car. Additionally, if the conviction involves marijuana alone, your driver’s license will be revoked for one year. Ironically, if you are driving under the influence of marijuana AND alcohol, your license might only be suspended for 90 days because your plea bargain might involve pleading to the alcohol component of the DUI and not the marijuana. However, it’s only logical that alcohol and marijuana mixed together will make your driving more impaired so just don’t do it.
If this is a second misdemeanor DUI involving marijuana or another drug, the minimum jail sentence is 30 days, the fine is increased to a minimum of $3,430 and at least 30 hours of community service will be ordered in addition to an 18 month license revocation and ignition interlock device requirement.
If if the DUI is a third offense within 7 years, or your driver’s license was already suspended or revoked, or there was a child in the vehicle at the time, the DUI is charged as a felony and you could be facing a longer jail and/or prison sentence.
If you are charged with a violation of Arizona law involving marijuana and need experienced legal representation, call me, Karen Boehmer at 602-796-0882.
San Luis Obispo Tribune: “on Dec. 27, 45 to 50 officers started serving the search warrants over three days at seven locations. Fifteen people were arrested on various allegations of possessing and selling marijuana. . . . Law enforcement officials say the arrestees were selling and transporting marijuana illegally throughout San Luis Obispo, Santa Barbara and Monterey counties, in violation of the state’s Compassionate Use Act and Medical Marijuana Program. [The defendants] operated collectives. . . . groups that form to cultivate marijuana for medical purposes for patient and caregiver members. They should only provide a means for facilitating or coordinating transactions between members — and should not purchase marijuana from, or sell to, nonmembers. They also cannot make a profit.”
Americans for Safe Access: “A Narcotics Task Force (NTF) made up of local and state law enforcement agencies aggressively raided 5 collectively-run medical marijuana delivery services on Monday, Tuesday and Wednesday this week, arresting at least 13 people on felony charges and holding them on bails of up to $100,000. Several of those arrested were charged with child endangerment, after Child Protective Services (CPS) removed at least 6 children from the homes of 3 different families.”
On October 19 , 2009, “Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes. Those guidelines are contained in a memo from Deputy Attorney General David W. Ogden.” The following is the text of the Department of Justice medical marijuana letter.
October 19,2009
MEMORANDUM FOR SELECTED UNITED STATES ATTORNEYS
FROM: David W. Ogden, Deputy Attorney General
SUBJECT: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana
This memorandum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting States and among local jurisdictions within those States. Rather than developing different guidelines for every possible variant of state and local law, this memorandum provides uniform guidance to focus federal investigations and prosecutions in these States on core federal enforcement priorities. (more…)
San Luis Obispo Tribune: “Twelve San Luis Obispo County residents were arrested this week after a two-month investigation into mobile marijuana dispensaries on the Central Coast. The investigation began after law enforcement agencies learned that several people were selling marijuana through mobile dispensaries in San Luis Obispo, Santa Barbara and Monterey counties, according to a news release from the San Luis Obispo County Narcotic Task Force.”
Jon Gettman , Ph.D., wrote a scholarly paper called “Marijuana in Arizona, Arrests, Usage, and Related Data.” The article contains statistics and information about the criminal aspect of marijuana use in Arizona. It states:
“There were 21,727 arrests for marijuana offenses in Arizona in 2007, representing an arrest rate of 343 per 100,000, which ranks Arizona at number 16 in the nation. There were an estimated 473,000 past year marijuana users in Arizona during 2007. Reconciling this estimate with the number of arrests for marijuana offenses provides an arrest rate of 4,593 per 100,000 users, which ranks Arizona at number 14 in the nation.
In terms of overall severity of maximum sentences for marijuana possession, Arizona ranks number 12 in the nation (based on penalties for a first offense). When it comes to penalties for just under 1 ounce of marijuana, Arizona is ranked at number 2 . . .. Here are the penalties for possession of various amounts of marijuana in Arizona:”