1. Don't drink and drive.
The Second Amendment to the United States Constitution states that:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
To understand the 2nd Amendment, it is necessary to first put it into context within the larger United States Constitution. The 2nd Amendment is part of the "Bill or Rights." The Bill of Rights is made up of the first 10 amendments that were written into the United States Constitution before it was ratified.
This is not a political post. I do not intend to share my opinions on the wisdom or lack thereof of any particular action taken by any particular politician. Below, rather, is a fair and academic explanation of the legal issues that have been raised in regards to President Donald Trump's Executive Order 13769, titled "EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES."
Having spent years in the Criminal Courts I can say a few things with certainly. One of the things I can tell you without any doubt in my mind, is that defendants lie. I know, this is a shocking thing to hear from a Defense Attorney, but it's true.
Proposition 64 was passed with 56.96 % of the vote on November 8th. The Adult Marijuana Use Act makes some pretty significant changes to California Law.
Creates "The Bureau of Marijuana Control" as a sub-department of the Department of Consumer Affairs. This department will begin issuing licenses to businesses to sell Marijuana in 2018.
The Department of Food and Agriculture will license and oversee marijuana cultivation.
The Department of Public Health will oversee and enforce product safety regulations.
Certain Anti-Monopoly rules have been put in place, including a five year ban on large-scale cultivation licenses.
Marijuana will be required to be sold in child resistant containers and to indicate potency.
Marijuana will not be sold in businesses that also sell either tobacco or alcohol.
It is illegal to smoke marijuana in public, except for places licensed for such use, if we make any.
Allows industrial hemp to be grown as an agricultural product.
WHAT IS NOW LEGAL?
The New California Health and Safety Code 11362.1 states that:
Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.5, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
1. Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
2. Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 8 grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products.
3. Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
4. Smoke or ingest marijuana products; and
5. Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without compensation whatsoever.
CAN I BUY MARIJUANA NOW?
No. No one can buy Recreational Marijuana in California until 2018 when the first licenses to sell Recreational Marijuana are issued by the state. Medical Marijuana Dispensaries are not allowed to sell Recreational Marijuana.
CAN I "GET" MARIJUANA NOW?
Yes. A person may give you no more than 28.5 grams of marijuana, or 8 grams of concentrated cannabis.
CAN I GROW MY OWN MARIJUANA?
Yes, if you follow the rules. At a minimum the new state law requires that you grow no more than 6 plants and that your Marijuana Grow not be visible from a public place, and be locked. You are also required to keep any amount of marijuana produced that is over 28.5 grams on the property and only remove 28.5 grams at a time.
Which brings up an interesting point. Most people may only possess 28.5 grams of marijuana at all, and only 8 grams of concentrated cannabis. If you grow your own marijuana, however, you may possess (on your land) as much as the 6 plants produce, which I can tell you from years of defending Marijuana Cases, is A LOT more than 28.5 grams of marijuana, or 8 grams of concentrated cannabis.
Additionally, the new California Penal Code 11362.2 states that: Cities and Counties may enact and enforce "reasonable regulations" to "reasonably regulate" cultivation of marijuana, but no law may be passed completely banning cultivation within a person's home or other enclosed building on the land that contains their home. But laws may be passed that completely ban the cultivation of marijuana outdoors on the grounds of a private residence.
CAN I MAKE MY OWN HASH OIL/ WAX/ CONCETRATED CANNABIS?
Yes and no. It is still illegal to concentrate cannabis using any volatile solvent. This means that the preferred street method of producing concentrated cannabis (using butane in a tube) is still unlawful. There are other more complicated, more expensive, more time consuming, AND MUCH SAFER methods to concentrate cannabis. These are now legal.
This law is found in California Health and Safety Code 11379.6
WHAT DOES THE NEW LAW MEAN TO SEARCH AND SEIZURE?
The new California Health and Safety Code 11362.1(c) states that: Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband, nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.
WHY IS THIS IMPORTANT?
There was a very real need for this addition to the law. Since the passage of California's Compassionate Use Act, unethical Police have used the presence of marijuana, even if there was no reason to believe it was unlawful, as an excuse to search and seize private individuals and property. I am personally aware of numerous cases where the police became aware of a medical marijuana grow site by flying a plane over residential areas with a spotter (This is, of course, a ridiculously wasteful use of two sworn officers and an expensive aircraft that hopefully will be put to an end by our newer, better, laws). Once this had been done the police would obtain a search warrant for the HOUSE on that same land. The excuse, which was upheld by California Judges without the backbone to say no to the Police, was that since the Compassionate Use Act created an "Affirmative Defense" that the Police could reasonable conclude, (despite the fact that medical marijuana prescriptions WERE POSTED NEXT TO THE PLANTS) that the grow was unlawful, and could search through the house for evidence against the growers. I am also personally aware of numerous cases where police would say that they smelled the odor of marijuana in a car as an excuse to order all of the occupants out of the car, to search the car, and then to search the occupants. Now even under our old laws the police lacked the power to do this. Law enforcement got around this by threatening to detain everyone in or around the vehicle several hours until a judge could be contacted, and a warrant for their search could be obtained, which it would be under the same bad judicial precedents discussed above. Essentially the Compassionate Use Act allowed sick people to use Medical Marijuana to treat their symptoms, but required that in exchange for the right to use the most effective medicine available that they gave up their 5th Amendment Rights against unlawful search and seizure, which police officers were all too eager to strip away from anyone who failed their smell test. Proposition 64 reverses this horrible trend in bad policing and makes it clear that the possession, use, or cultivation of marijuana, unless it is CLEARLY illegal, does not give law enforcement cause to perform a search or seizure, or obtain a warrant to do so.
ARE THERE ANY LIMITS ON THE NEW MARIJUANA PARTY?
It is still illegal to:
Possess any amount of Marijuana or Concentrated Cannabis, if you are under the age of 21 (details below).
Possess more than is allowed by law (details below).
Smoking marijuana in public is an infraction carrying a $100.00 fine for an adult. A juvenile caught smoking anywhere is subject to a 4 hours of drug education, and 10 hours of community service.
Smoking marijuana in a place where even tobacco smoking is prohibited, or in public within 1000 feet of a school, day care center, or "youth center" while children are present, is an infraction carrying a $250.00 fine for adults (over age 18), and the same 4 hour drug education class and 20 hours of community service for minors.
ARE PEOPLE GOING TO BE DRIVING CRAZY UNDER THE INFLUENCE OF THE DEVIL'S WEED?
No. To begin with, California Vehicle Code 23152(e) [Driving Under the Influence] already makes it Misdemeanor carrying up to 180 days in the County Jail (for a first offense) for anyone to drive when they are impaired because they are under the influence of any drug. Whatever anyone may tell you to the contrary, driving under the Influence of Marijuana is unsafe. Marijuana intoxication effects both an individual's reflexes, and their ability to judge depth perception (which is important to not running into things).
In fact most of the laws that apply to alcohol will now be applicable to marijuana, including "open container" laws. California Health and Safety Code 11362.3 provides that possession of an open container or open package of marijuana while driving is still illegal. Obviously so is smoking while driving. Same with boating, flying, or any other "vehicle for transportation" operating.
There are already scientists working on a reliable breath test that will be able to determine THC (tetrahydrocannabinol, the psychoactive chemical in Marijuana) in the blood. As soon as this can be done you can expect that there will be new laws making it illegal to drive with a certain concentration of marijuana in the blood (the same way that it is illegal to drive with .08 percent or more of alcohol in the blood).
CAN THE FEDS HARSH MY MELLOW?
The Feds are most uncool man, and they can totally harsh your mellow. Marijuana is still illegal to possess, cultivate, sell, transport, and by implication use, under Federal Law. It isn't just slightly illegal either. Mere possession of marijuana can land you in federal prison for years. The good news is that the odds of this happening to the average marijuana user is California is miniscule. Your city police, the County Sheriff, and the State Police (California Highway Patrol etc.) CANNOT enforce Federal Law. They lack jurisdiction to do so. On the other hand, Federal Authorities could destroy any marijuana based industry as explained below.
ARE WE GOING TO SEE MARIJUANA SOLD IN SUPERMARKETS AND 7-11 TYPE STORES?
Proposition 64 makes clear that no business will be licensed that also sells either cigarettes or alcohol. Considering how much more money is made in the sale of those items over what will be made in the sale of marijuana, it is extremely unlikely that anyone wills stop selling alcohol or cigarettes in order to sell marijuana.
Marijuana is still illegal under Federal Law, and a person charged with possession for sale of marijuana under Federal Law still faces several years in prison. For this reason it is unlikely that "legitimate" large scale corporations will engage in the sale of marijuana until Federal Authorities have promised not to target growers and sellers in states that have legalized marijuana on the state level. So far these kinds of promises have not been forthcoming. The Obama Administration has taken the somewhat annoying road of choosing not to prosecute anyone for violating federal marijuana laws in states which have legalized it at the state level, but has never said that they would not or could not if they chose to. The election of Donald Trump to the white house only serves to make it less clear how the Federal Government will handle this issue. The man's own libertarian leanings would seem to suggest that he would respect the right of the individual states to determine whether their citizenry should be allowed to engage in the use and trade in marijuana, however Mr. Trump has recently chosen Alabama Senator Jefferson Beauregard Sessions III to be his Attorney General. The Attorney General runs the Justice Department and decides how Federal Enforcement of Marijuana Laws will or will not be handled. Senator Sessions is infamous for his hardline antimarijuana nutjob. As a U.S. Attorney in Alabama in the 1980s, Sessions said he thought the KKK "were OK until I found out they smoked pot." In April 2016, he said, "Good people don't smoke marijuana," and that it was a "very real danger" that is "not the kind of thing that ought to be legalized." Sessions, who turns 70 on Christmas Eve, has called marijuana reform a "tragic mistake" and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing a the federal prohibition. In a floor speech earlier this year, Senator Sessions said: "You can't have the President of the United States of America talking about marijuana like it is no different than taking a drink... It is different....It is already causing a disturbance in the states that have made it legal." If this man decides that the Federal Government will wage war on marijuana users in California, he could cause things to get messy. While the Federal Government simply doesn't have manpower to patrol the streets looking for marijuana users it could utilize the IRS records of every marijuana business that pays taxes to effectively shut down any large scale organized cultivation and sales force.
CAN MY LANDLORD HARSH MY MELLOW?
Sorry dude, but yes they can. It is legal for the government to restrict the use of marijuana on any government owned land, and it is legal for a private owner to prevent renters from using marijuana on their land. If your landlord is a prude (or if you rent from the government) expect for them to work it into your lease that you cannot grow or use marijuana on your rented property, and to be evicted if you break that rule.
CAN MY BOSS HARSH MY MELLOW?
I hate to be such a bummer, but yea, definitely. Your boss, if he is a prude, can require you to take a drug test, and if you test positive for marijuana your boss can fire you. This issue has already been litigated out in the context of Medical Marijuana. The Courts have determined that because possession (and therefore use) of Marijuana is illegal under Federal Law, that you are not protected from discrimination based on your use of Marijuana. That means that you can be fired, denied a job, denied a loan, denied housing, or kicked out of school... for doing something that is now completely legal under California Law. Major bummer.
A NOTE ABOUT THE NEW APPROACH TO JUVENILE CRIMINAL ENFORCEMENT OF MARIJUANA LAWS:
The new law takes a much less "criminal law" approach to marijuana offenses committed by minors. Rather than making most marijuana offenses misdemeanors to felonies with a term of days that the Court could incarcerate the minor, the new law makes almost all marijuana offenses infractions for minors, and the sentences all involve imposition of community service hours and mandatory classes only, without any form of jail time or fine. This is a truly excellent and welcome change in the law. For too long we have fought a "war" on drug users (see my other blogs for more information of the failed war on drug users) when the problems that supposedly trying to solve (drug abuse and the real crimes that result from drug abuse) are not problems that can be solved by the criminal courts, but instead need to be treated as health and safety issues to be prevented by education, and treated as medical illnesses. Our new Juvenile Court approach to marijuana use seems to understand this. Rather than emphasizing either punishment or deterrence, neither of which work long term on drug users who become drug addicts, these new laws emphasize drug education and strengthening community ties through coerced volunteerism. This is a step in the right direction.
PARTICULAR CHANGES TO CRIMINAL LAWS - For the Lawyer Readers
CALIFORNIA HEALTH AND SAFETY CODE 11357(a) Possession of Concentrated Cannabis
OLD LAW - Possession of Any Amount by Any Person was a Misdemeanor (max 1 year jail and/or $500). If the offender was a registered sex offender under California Penal Code 290, or had a prior "super strike" under California Penal Code 667, this crime became a "wobbler" meaning that it could be charged as a Felony carrying a Prison Term of 16 months, 2 years, or 3 years incarceration.
NEW LAW - For those over 21 Years of Age possession of up to 8 grams of concentrated cannabis either alone or mixed (such as in edibles) is legal. Possession of more than 8 grams is a Misdemeanor carrying up to 180 days in the County Jail. For those between the ages of 18-21, possession of less than 4 grams if an infraction carrying a $100.00 fine. Possession of more than 4 grams is a Misdemeanor carrying up to 180 days in the County Jail. For minors (under the age of 18) this is now an infraction.
A first offense for a minor carrying less than 4 grams is a 4 hour drug education class and up to 10 hours of community service.
A second offense for a minor carrying less than 4 grams is a 6 hour drug education class and up to 20 hours of community service.
A first offense for a minor carrying more than 4 grams is an 8 hour drug education class, and up to 40 hours of community service.
A second offense for a minor carrying more than 4 grams is a 10 hour drug education class and up to 60 hours of community service.
CALIFORNIA HEALTH AND SAFETY CODE 11357(b) Possession of Less Than 28.5 g marijuana
OLD LAW - This was an Infraction carrying a $100.00 fine
NEW LAW - For anyone over the age of 21 this is now legal. For those 18-20 this is still and infraction carrying a $100.00 fine. For minors (under the age of 18) this is now an infraction. The Court is mandated to order the minor to take a 4 hour marijuana education course, and to complete up to 10 hours of community service for a first offense, and up to 20 hours of community service (with a 6 hour class) for a second or subsequent offense).
CALIFORNIA HEALTH AND SAFETY CODE 11357(c) Possession of More Than 28.5 grams of Marijuana
OLD LAW - This was a Misdemeanor carrying up to 180 days in the County Jail.
NEW LAW - For anyone over the age of 18 this is still a Misdemeanor carrying up to 180 days in the County Jail. For minors this is now an infraction. The Court is mandated to order a minor convicted of a first offense to take an 8 hour Marijuana Course and complete up to 40 hours of community service, and a minor convicted of second or subsequent offense to take a 10 hour course and complete up to 60 hours of community service.
CALIFORNIA HEALTH AND SAFETY CODE 11359 - Possession for Sale of Marijuana
OLD LAW - This was a Felony carrying up to 3 years in state prison.
NEW LAW - For all adults this is a misdemeanor carrying a maximum sentence of 180 days unless:
· The Person has a prior super strike conviction under 667.
· The Person is a registered sex offender under 290(c)
· The Person has two prior convictions for this same offense already.
· The person sold or attempted to sell marijuana to a minor, or used any person under the age of 21 to cultivate or sell marijuana.
If one of these applies it is a wobbler, and if charged as a Felony carries a sentence of 16 months, 2 years or 3 years incarceration.
For minors convicted of this crime it is an infraction. A first offense carries an 8 hour drug education class and up to 40 hours of community service. Subsequent convictions carry 10 hours of drug education and up to 60 hours of community service.
CALIFORNIA HEALTH AND SAFETY CODE 11358 - Cultivation of Marijuana
OLD LAW - This was a felony carrying a sentence of 16 months, 2 years, or 3 years, in the state prison.
NEW LAW - It is legal for anyone over 21 to grow up to 6 plants if they are not visible to the public and are kept in a locked place (failure to abide by these rules is an infraction with a $250.00 fine).
It is an infraction with a $100.00 fine for anyone 18-21 to grow up to 6 plants.
It is a misdemeanor carrying up to six months in the County Jail for an adult to grow more than 6 plants.
But it becomes a wobbler carrying 16 months, 2 years, or 3 years, if:
The person has a prior super strike under 667. The person is a registered sex offender under 290. The offense resulted in intentional division of public waters, introduced harmful chemicals into waters, or otherwise caused substantial environmental harm to public lands.
For minors the offense of growing any amount of marijuana is an infraction carrying 8 hours of education and up to 40 hours of community service for a first offense, and 10 hours of education and up to 60 hours of community service for all subsequent offenses.
CALIFORNIA HEALTH AND SAFETY CODE 11360 - Sale of Marijuana
OLD LAW - This was a Felony carrying up to 4 years in state prison.
NEW LAW - Same as for 11359 (above) except that the incarceration term would 2, 3, or 4 years.
NOTE: Sale of Marijuana by an adult to a minor (also covered under CALIFORNIA HEALTH AND SAFETY CODE 11360) has not changed. This offense was, and is, a felony carrying 3/5/7 years is sold to a minor under 14 and 3/4/5 years if sold to a minor over 14.
An Affirmative Defense (such as self-defense) does not mean that the acts described in the crime have not been committed, but does mean that there is a legal excuse. In a series of bad Appellate Court Decisions, California Courts held that the Police were not required to respect the obvious fact of an Affirmative Defense (by, for example, posting a medical marijuana prescription), and could make an arrest and let the Criminal Courts Hash out whether the person could be convicted of the crime or not.
There was an election this month!
I knew I wanted to be a lawyer when I was still in grade school. All of my teachers told me that was what I should do. Looking back I think that was their nice way of saying that I was a big mouth, and that I should probably try to get paid for it someday.
The United States House and Senate have both recently passed a bill supposedly designed to combat "Human Trafficking" in the United States. The bill is expected, with much fanfare, to be signed into law by President Barack Obama. This is one of those rare bills that (except for a short lived bump in the road over abortion access to the "trafficked victims") has received Bi-Partisan (meaning both Democratic and Republican) support. This legislation is supposed to be a win for everyone. The streets will be safer! The innocent will be protected! The evil of human trafficking will come to an end! Right?
Americans, and I count myself proudly among this group, love a good fight. From the (fictionalized) speech of General George S. Patton (which you can view here: https://www.youtube.com/watch?v=9b5g1avyCSA) to the (also fiction) blockbuster spectaculars of Professional Wrestling and the slightly less fictional gladiatorial combat of Mixed Martial Arts. Our first impulse when we see a problem is to spinkick it through a plate glass wall. Sadly, this does not always lead to a good result.
Criminal Defense Attorneys often get asked the question: "How can you do this job?"