State Courts

The Michigan Supreme Court Tuesday ruled that it is not illegal to drive while having marijuana metabolites in the body, reversing a 2006 decision by a more conservative version of the court. Marijuana metabolites are not a controlled substance under state law, and their mere presence thus cannot be the basis of a conviction under the state's drugged driving law, the court held. The ruling came in People v. Feezel, in which the court overturned the conviction of a driver in the death of a severely drunk pedestrian walking in the middle of a five-lane road at night. The driver, George Feezel, was himself borderline intoxicated on alcohol, blowing a 0.009, and also tested positive for marijuana metabolites, which can linger in the system for days or weeks after the pot high is gone. Feezle was not convicted of drunk driving causing a death, but was found guilty of second-offense drunk driving, leaving the scene of a fatal accident, and driving under the influence of marijuana, although there was no testimony to the effect that he had used marijuana that evening and there was testimony to the contrary. The court ruled that a Washtenaw County jury should have been allowed to hear evidence the victim was drunk, remanding the case back to circuit court. But in ruling that marijuana metabolites are not a controlled substance, the court invalidated what was in effect a per se zero tolerance drugged driving law that allowed for people to be convicted of driving while impaired when they were not actually shown to be impaired. "We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 [controlled substances act] and, therefore, a person cannot be prosecuted under MCL 257.625(8) [drugged driving act] for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system," read the opinion. The opinion, largely a demolition of the previous Supreme Court's 2006 ruling in People v. Derror that marijuana metabolites are a controlled substance, thus allowing for drugged driving convictions based solely on their presence, noted that Michigan is now a medical marijuana state and that allowing Derror to stand would unfairly impact medical marijuana patients. Under Derror, Justice Corrigan wrote for the majority, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person’s blood for 18 hours and in a person’s urine for up to 4 weeks." It's not just about medical marijuana patients, the opinion suggested: "Thus, under Derror, an individual who only has 11-carboxy-THC in his or her system is prohibited from driving and, at the whim of police and prosecutors, can be criminally responsible for choosing to do so even if the person has a minuscule amount of the substance in his or her system. Therefore, the Derror majority’s interpretation of the statute defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement." It is neither fair nor just nor in the interest of public safety to charge people with drugged driving who aren’t impaired. Finally, there is a Michigan Supreme Court that recognizes that.

New Jersey Multiple Sclerosis patient John Ray Wilson was sentenced last Friday to five years in prison for growing marijuana plants to ease his symptoms. Wilson, whose case we profiled in December, originally faced up to 20 years in prison, but a jury failed to convict him of the most serious, maintaining a habitation where marijuana is manufactured. He was convicted of manufacturing marijuana (17 plants) and possession of psychedelic mushrooms. Wilson was convicted in December, before New Jersey recognized medical marijuana. Ironically, it became the 14th state to do so between the time Wilson was convicted and his sentencing. But the new New Jersey law would not have protected Wilson's marijuana growing because it only allows for patients to obtain it at state-monitored dispensaries. State Superior Court Judge Robert Reed banned any references to Wilson's medical condition during his trial, finding that personal use was not a defense and that New Jersey had no law protecting medical marijuana use. Wilson was ultimately able to make a brief, one-sentence mention of his medical reasons for growing marijuana, but that wasn't enough to sway the jury. Wilson's attorney, James Wronko, told the Associated Press that the outcome might have been different had the jury been allowed to hear more about his illness. "We're disappointed that he's in state prison for smoking marijuana to treat his multiple sclerosis," Wronko . "I think anytime someone using marijuana for their own medical use goes to state prison, it's clearly a harsh sentence." Wilson's case became a cause célèbre for regional medical marijuana advocates, and also drew attention from the state legislature. Two state senators, Nicholas Scutari, sponsor of the medical marijuana bill, and Ray Lesniak, called in October for Gov. Jon Corzine (D) to pardon Wilson. But Corzine punted, saying he preferred to wait until after Wilson's trial had finished. Now, Wilson has been sentenced to prison, Corzine's term has ended, and new Republican Gov. Chris Christie is not nearly as medical marijuana-friendly. Wronko said an appeal of the sentence was in the works.

Idaho has some great scenery and some great skiing, it has the Snake River Canyon, and it has a huge knot of mountains in the middle of the state that are very appealing to those who like rugged, isolated beauty. I had intended to explore them this summer, but I've changed my mind. And this story is the reason why:

Medical Marijuana Defense Falls Flat REXBURG — The Fremont County prosecutor says a drug bust in Island Park illustrates that claiming a medical use of marijuana with a certificate from another state won't help you in Idaho. Aurora M. Hathor-Rainmenti, 35 , of Garberville, Calif., was arrested Friday after she was stopped for speeding near Mack's Inn. Fremont County deputies found a baggy containing marijuana in her car with the help of a drug dog. Hathor-Rainmenti was charged with one count of possession of marijuana and two counts of possession of drug paraphernalia, all misdemeanors. Fremont County Prosecutor Joette Lookabaugh said Hathor-Rainmenti said she had a certificate from the state of California allowing for medical use of marijuana. "We want the public to know that medical marijuana certificates, even if they're from surrounding states, are not honored in Idaho," Lookabaugh said.

Okay, I understand this. Idaho is under no obligation to honor a medical marijuana card from a different state. Medical marijuana users be forewarned: If you're headed for benighted redneck country, don't expect your card to protect you. There is, however, no suggestion that Hathor-Rainmenti is anything other than a legitimate medical marijuana patient. Still, the local prosecutor takes the opportunity to pile on the charges: Not only does she get a pot possession charge, she also gets two paraphernalia charges (did she have two rolling papers, or what?). Absolutely typical, of course, and absolutely disgusting. Just another way for prosecutors to stack the deck. And not limited to Idaho. Similarly, a judge in Idaho, if he had an ounce of compassion in his body, could take her medical marijuana patient status into account during sentencing. There is no sign he did that:

On Monday Hathor-Rainmenti pleaded guilty to the possession charge and one of the possession of paraphernalia charges. The other paraphernalia charge was dropped. She was sentenced to five days in jail, with 115 days at the discretion of the court along with an $800 fine.

Nice. Throwing a patient in jail for a victimless crime—and rip her off for $800. Remember, she was not charged with drugged driving—and you better believe she would have been had there been the least suggestion she was impaired. Okay, the sentence was ugly and reprehensible, but still nothing unusual in the fascistoid heartland. But here's the kicker; here's what's got me thinking boycott:

In addition, there is a civil forfeiture under way on the borrowed car Hathor-Rainmenti was driving, as well as on the $514 in cash that was confiscated during the arrest.

Say what?!?! Asset forfeiture laws are supposed to be directed at people getting rich from selling drugs. They're problematic enough in that regard, since they create an incentive for cops to trawl for cash, distorting law enforcement priorities in the constant search for the next big score—with the loot typically used to pay for more cops and more drug dogs to find more cash to seize to pay for more cops and more drug dogs and…In short, they are little more than a form of institutionalized, legalized corruption. But Hathor-Rainmenti only had a bag of weed. She was not charged with drug distribution. And the state of Idaho is going to steal her car and every penny she had on her? This is nothing but robbery under color of law. This is the criminal justice system as organized thuggery. The thieving state of Idaho can go to hell. I am sick to death of this sort of crap. It happens all the time, and not just in Idaho. But we have to start somewhere, and that's why I'm suggesting that perhaps a boycott is in order. Idaho is a relatively small state in terms of population, and it is highly dependent on tourism. In other words, it's vulnerable. I am aware that boycotts are a blunt instrument that may not directly harm the people they are aimed at—the cops who make the busts, the prosecutors who try to hammer good people down, the judges who routinely impose such obscene sentences, the politicians who write the laws. But if the ski resorts in Sun Valley or the river guides and hotel owners along the Snake River Valley start seeing cancellations, perhaps they will be motivated to start putting some money into campaigns to end this evil. To be honest, I'm getting frustrated with playing games with state legislatures and I'm thinking it's time for some creative direct actions. We can spend years at the statehouse only to win a piddling decriminalization bill. Whoopee! Now you can only steal my stash and a few hundred of my hard-earned dollars instead of stealing my stash and my money and giving me a criminal record and some jail time. That is progress of a sort, but not nearly enough. Ditto with medical marijuana. Why is it that it seems like every new medical marijuana law is more restrictive than the last? Pretty soon we're going to end up with a medical marijuana law somewhere where you have to be dead already to qualify. So…what about an organized boycott of Idaho, for starters? Would medical marijuana defense groups like Americans for Safe Access get on board with that? Why or why not? What about NORML and the Marijuana Policy Project? Or the Drug Policy Alliance? Just the announcement of a boycott ought to start a real ruckus among the good burghers of Boise. There are 20 million or so pot smokers in the US, and they have friends and families. We are talking about tens of millions of people who could potentially participate. It could even have a real economic impact, and if that's what it takes to beat some sense into these yahoos, so be it. Individuals could do their part by writing letters to the state and local chambers of commerce, to the state tourism bureau, and to state newspapers explaining why they are going elsewhere this year. Reservations could be made and then canceled. Let 'em feel the pain. As I've said, I'm getting really tired of progress by the millimeter. I'm open to some creative tactics. A directed boycott is one of them. Here's another one: The drug defense bar grows rich defending pot people. How about after charging us $5,000 to show up in court and cop a guilty plea and $15,000 to pursue an appeal on constitutional grounds a few hundred times, you give back to the community you grow rich off of? How about a group of you picking a particular egregious locality and pro bono defending every drug case like you meant it? I mean filing motions, going to trial, no plea bargains, demanding jury trials, the works. You could probably freeze the system in a few weeks. Yeah, I know there are issues, but we could work them out. Sure, things like boycotts and forcing the criminal justice system are messy and difficult. But in the meantime, the wheels of injustice keep grinding away, chewing up our people in the process. Anybody got any better ideas? Do we begin with boycotting Idaho? Count me in.

The Ohio Supreme Court ruled Tuesday that police officers must obtain a search warrant before reviewing the contents of a suspect’s cell phone unless their safety is in danger. The ruling came on a narrow 5-4 vote of the justices. The ruling came in State v. Smith, in which Antwaun Smith was arrested on drug charges after answering a cell phone call from a crack cocaine user acting as a police informant. When Smith was arrested, officers took his cell phone and searched it without his consent or a search warrant. Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools. At trial, Smith argued that evidence derived through the cell phone search should be thrown out because the search violated the Fourth Amendment ban on unreasonable searches and seizures. But the trial judge, citing a 2007 federal court ruling that found a cell phone is similar to a closed container found on a defendant and thus subject to warrantless search, admitted the evidence. Smith was subsequently convicted on all charges and sentenced to 12 years in prison. Smith appealed, but lost on a 2-1 vote in the appeals court. In that decision, the dissenting judge cited a different federal court case that found that a cell phone is not a container. In the majority opinion Tuesday, state Supreme Court Justice Judith Ann Lanzinger wrote that the court did not agree with the appeals court and trial judge that a cell phone was a closed container. "We do not agree with this comparison, which ignores the unique nature of cell phones," Lanzinger wrote. "Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. ... Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container." "People keep their e-mail, text messages, personal and work schedules, pictures, and so much more on their cell phones," Craig Jaquith, Smith's attorney, said in a statement. "I can't imagine that any cell phone user in Ohio would want the police to have access to that sort of personal information without a warrant. Today, the Ohio Supreme Court properly brought the Fourth Amendment into the 21st century." But Greene County prosecutor Stephen Haller complained to the Associated Press that the high court had gone too far. "I'm disappointed with this razor-thin decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."

In a blow to hard-line San Diego County District Attorney Bonnie Dumanis, who has yet to find a medical marijuana dispensary she considers legal and who has coordinated a series of raids on dispensaries in recent years, a jury in San Diego Tuesday acquitted the manager of a local dispensary of marijuana possession and distribution charges. Jovan Jackson, 31, a Navy veteran, cried as the not guilty verdicts were read. He was, however, convicted on possession of Ecstasy and Xanax, small quantities of which were found in his home during an August 2008 raid. Still, Jackson expressed relief outside the courthouse. "I was very thankful," Jackson said. "This has been a long road. It hasn't been easy. I felt like a lot of weight was on my shoulders." Jackson's was the first medical marijuana case to go to trial since a series of Dumanis-orchestrated raids on dispensaries in September that resulted in 31 arrests and the closing of 14 San Diego-area dispensaries. Dumanis led other mass raids in 2006 and in February of this year. Jackson operated the Answerdam Alternative Care Collective, which was twice approached by undercover officers who had fraudulently obtained medical marijuana recommendations. Since the narcs had proper documentation under California law, and once they joined the collective by paying a $20 fee, Jackson let them purchase medical marijuana. Prosecutors presented evidence of $150,000 in credit card receipts and five pounds of marijuana seized during raids at the dispensary as evidence that, "This case is about making money, plain and simple," as Deputy District Attorney Chris Lindberg put it to the jury. But a large-scale operation is not out of line for a collective that boasted 1,649 members, as defense attorney K. Lance Rogers told the jury. He also reminded jurors that the narcs had signed up for the collective under false pretenses and that state law allows medical marijuana patients to legally buy marijuana from a collective that grows it. Jurors agreed, acquitting Jackson on the marijuana charges. Jurors told reporters after the trial that they found Jackson innocent because the state laws regarding medical marijuana sales from collectives were vague. "On a personal level, if you're going to hold somebody to a law, you have to define that law," said juror Perry Wright. It's not the end for Jackson. He faces up to three years in prison on the Ecstasty and Xanax possession charges, although he will most likely receive probation. And he faces another round of marijuana distribution charges from a similar undercover buy made this year. Given the verdict in this case, DA Dumanis might want to consider whether a re-run trial is worth the taxpayers' money and whether any of her pending dispensary prosecutions should go forward. But she probably won't.

Arizona’s law protecting religious freedom does not apply to a man convicted of smoking marijuana while driving, the state Supreme Court ruled Monday. The ruling came in Arizona v. Hardesty. In that case, Daniel Hardesty was arrested while driving in Yavapai County and charged with marijuana possession. At trial, he testified that he was a member of the Church of Cognizance, an Arizona-based religion that says it embraces neo-Zoroastrian tenets and uses marijuana for spiritual enlightenment. He argued that Arizona’s 1999 law limiting the state’s ability to "burden the exercise of religion" meant he could not be prosecuted because he was exercising his religious beliefs. The trial judge disagreed, and Hardesty was convicted. He appealed to the state Supreme Court, and has now lost there, too. In a unanimous opinion, the justices held that while the state religious freedom law mandates restrictions on religious practices only if it shows a compelling interest and that the restrictions must be the "least restrictive means of furthering that interest," the state does have a compelling interest in regulating marijuana use and Hardesty’s claim that the Church of Cognizance allows him to use marijuana anywhere or any time, including driving, made it clear that the "least restrictive means" was an outright ban on marijuana. Chief Justice Rebecca White Berch, who authored the opinion, made a distinction between federal laws that allow Native American Church members to use peyote without fear of prosecution under state law and the religious freedom claim made by Hardesty. There was an "obvious difference" between the two situations, Berch said. "Members of the Native American Church assert only the religious right to use peyote in limited sacramental rights. Hardesty asserts the right to use marijuana whenever he pleases, including while driving,'' she wrote. Monday’s ruling was the second defeat in as many years for the church. Last year, church founders Dan and Mary Quaintance were convicted of marijuana possession and conspiracy to distribute marijuana after being stopped with 172 pounds of pot in New Mexico. A federal judge in New Mexico rejected their religious freedom arguments. Dan Quaintance is currently serving a five year prison sentence, and Mary Quaintance is doing two to three years.

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc. Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction. Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information. "It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization." Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way." The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."