UNDERDOG - Criminal/DWI Attorney for Fairfax/Northern Virginia/Md. & beyond. - Drugs

DEA bans three additional synthetic cannabinoids

nospam@example.com (Jon Katz) — Mon, 15 Apr 2013 00:00:00 -0400

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Last year, I blogged about the five synthetic cannabinoids banned by the DEA through statutory scheduling provisions.

In the ever-continuing exercise of cat and mouse between manufacturers of synthetic cannabis (continually changing the ingredients in response to changes in the law) and law enforcement (wasting scarce resources going after consensually consumed substances rather than focusing on more serious actions including murder, rape and robbery), the DEA recently added three more additional synthetic cannabinoids to the banned list: UR-144, XLR11 and AKB48.

At what point will consumers of synthetic cannabinoids see real marijuana as less risky than the imitation version? Probably only once marijuana can be purchased at the same legitimate retail outlets that sell the synthetic product, and maybe only once marijuana in one's urine no longer threatens one's livelihood, seeing that the synthetic ingredients apparently do not get revealed in drug tests that are currently used by employers.

Medical marijuana makes further headway in Maryland.

nospam@example.com (Jon Katz) — Tue, 09 Apr 2013 00:00:00 -0400

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Image from public domain.

Medial marijuana is coming to Maryland, albeit in a limited manner. Yesterday -- after the House passed a similar measure -- the Maryland Senate passed legislation to arrange for state-approved agencies to distribute medical marijuana. The governor is expected to sign the bill into law.

Not known as of the beginning of this month is whether Governor O'Malley will sign the marijuana caregiver protection legislation (here and here) that the state legislature has passed.

As marijuana becomes less criminalized, the sky has not fallen.

nospam@example.com (Jon Katz) — Fri, 29 Mar 2013 00:00:00 -0400

Image from public domain.

Marijuana legalization advocates have struggled for years for lawmakers, all other government officials, and the rest of society to take them seriously. Their struggles have been bearing fruit more recently than ever, with medical marijuana becoming legalized in many states, and with possession of small amounts no longer a crime in Washington state and Colorado.

I thought the Sixties would have made marijuana much more acceptable to many more people by now, absent a Sixties backlash and Sixties' youths' denial about their drug use to their own children. Even a former Yippie like Jerry Rubin, after his transition to Wall Street, proclaimed that his Yippie days had become irrelevant to him. How could that have been a genuine statement, regardless of where his life had veered by the time he landed on Wall Street in a necktie, rather than to pour countless dollar bills onto the floor of the New York Stock Exchange to witness traders frantically scooping up those almighty dollars?

Why is marijuana legalization so important to me? I only need to count on one hand the number of times I have smoked it, and my last toke was before law school. If I were greedy, I would not want marijuana legalized, because that removes a common category of criminal defense clients for me.

Marijuana must be legalized because to keep it criminalized sets the tone for the overcriminalization in our society, and continues to give police an easy way to be permitted to search cars and other places and people, by claiming probable cause to have smelled marijuana, even unburnt at time, even when only a few grams or less are found. That is not the society that we should have.

Praised be the Marijuana Policy Project for highlighting the Maryland legislators who recently have introduced three different marijuana bills:(1) legalizing use and possession of up to one ounce of marijuana; (2) making marijuana possession a civil penalty allowing alleged possessors to be issued civil citations; and (3) a provision for dispensing medical marijuana.

Thank you deeply to the tireless marijuana legalization activists. Thanks to the politicians who refuse to see marijuana legalization activists as mere stoners. Thanks to legislators who introduce laws to legalize and decriminalize marijuana used and sold for medicine and recreation.

Virginia's curiously meaningless benefits for marijuana prescriptions and physician distribution for glaucoma and cancer.

nospam@example.com (Jon Katz) — Tue, 26 Feb 2013 00:00:00 -0500

By Jon Katz, a criminal defense lawyer, drug defense lawyer, marijuana defense lawyer, and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Virginia, Montgomery County, Maryland, and beyond for the best possible results for his clients. http://katzjustice.com

Image from public domain.

Under Virginia statutory law, marijuana is lawful to possess pursuant to a physician's order or prescription (VA. Code § 18.2-250.1(A)), and physicians are not criminally liable for providing patients with marijuana for treating glaucoma and cancer (Va. Code § 18.2-251.1). However, physicians will not prescribe nor order marijuana use -- versus recommending marijuana (in states whose laws allow such recommendations) -- lest they lose their federal Drug Enforcement Agency license to prescribe drugs. For the same reaons, I do not expect to see physicians dispensing marijuana before it is legalized federally.

The foregoing considerations do not stop me from arguing that it is the prosecutor's burden to prove at trial that the marijuana allegedly possessed by my client was not pursuant to a physician's prescription or order.

D.C. Circuit greenlights DEA's business as usual in maintaining marijuana as a useless drug.

nospam@example.com (Jon Katz) — Fri, 25 Jan 2013 00:00:00 -0500

Image from public domain.

By now, scientists and physicians examining medications know that marijuana is effective and relatively safe medication. However, marijuana has been politicized into the criminal realm for over seventy years in the United States, listed as a Schedule I drug, meaning that it has no beneficial medical uses.

Whether or not the federal demonization of marijuana has been influenced by a desire to fatten drug companies' and synthetic material companies' wallets -- as urged by the late Jack Herer (whom I liked very much when I met him a couple of times in the early Nineties) and many others -- the drug companies do in fact benefit from marjuana's remaining crimnalized, because nobody needs to go to a pharmacy to use marijuana, rather than to just grow it in the backyard or with hydroponics. The vast majority of people today have lived in a society where it is a given that marijuana is illegal, at least until Colorado and Washington legalized it for personal possession, and over a dozen states legalized it for medicine. Progress marches on, but too slowly for legalizing maijuana.

State laws legalizing marijuana for medicinal use, and legalizing and decriminalizing personal possession of marijuana recognize that the Schedule I moniker makes no sense. Emeritus Harvard medical school professor Lester Grinspoon points out that FDA approval of new drugs costs at least $200 million by the applicant. Absent a billionaire donor coming forward, such study will not be done with marijuana, and we will be left with anecdotal evidence, Grinspoon points out, to demonstrate the medical benefits and limited harm of marijuana.

Continue reading "D.C. Circuit greenlights DEA's business as usual in maintaining marijuana as a useless drug."

Marijuana use freedom does not allow imposing pot on others.

nospam@example.com (Jon Katz) — Tue, 18 Dec 2012 00:00:00 -0500

I only attended one Grateful Dead concert, in 1982 near the start of my sophomore college year. Entering the Boston Garden arena, I noticed a sharp reduction of available oxygen, replaced by the heavy stink of marijuana. There, I was a witting consumer of secondhand marijuana smoke, feeling no effects beyond those listed above. I enjoyed the concert, but was a jazz fanatic who did not feel a pull for a repeat performance.

A few years later, I heard about people/person mixing LSD and water in a water pistol and shooting it at people at Grateful Dead concerts. I do not know if that is a mere rumor, nor about how well LSD absorbs through the skin (although LSD founder Albert Hoffmann apparently got an unwitting and wonderful trip from handling a psychedelic with his bare fingers), but I understand that one of the watchwords of LSD consumption is that if it is going to be used, to do so in a comforting and supportive setting. Being sprayed with it and not knowing what is in the spray is likely to lead to a bad trip, at least for someone who has not experienced LSD before.

Now, a recent story from Colorado reports on prosecutions against two college students for allegedly giving pot brownies to a few people without telling them that marijuana was inside. I am curious how the prosecution plans to prove the charge, unless the defendants confessed, or unless one or more recipients had uneaten portions of brownie that tested positive by a chemist for marijuana ingredients. If the latter evidence is the only available physical evidence beyond illness, how will the prosecution be able to show the defendants knew marijuana was therein? Perhaps the defendants were given the brownies by someone else.

In any event, in case anyone was curious, the legalization of marijuana for personal use in Colorado clearly is not going to make it legal to surreptiously slip marijuana into other people's brownies. That goes without saying.

Washington state marijuana legalization comes with bitter pill of DUID conviction risk at 5 nanograms of THC.

nospam@example.com (Jon Katz) — Mon, 17 Dec 2012 06:54:48 -0500

Over the weekend, I learned that last month's Washington state successful marijuana legalization referendum came with the bitter pill of a risk of guilt for driving under the influence of drugs with a THC concentration exceeding five nanograms per milliliter of blood. This information was available before the referendum voting date, but it is not possible for me to catch all essential news amidst the election season blur of Republicans and meat. Here is the Washington state law on driving under the influence of marijuana, which incporates Washington's marijuana legalization referendum language; I copied this statutory language from Westlaw.

Colorado, which also passed a marijuana legalization referendum last month, is also facing possible legislation setting a presumed level of unlawful THC content.

THC ordinarily stays in the bloodstream for over two weeks, which counters any wisdom to setting blood THC concentration levels that presume driving under the influence of drugs.

Moreover, daily medical marijuana users are going to have THC levels in their bloodstream always. The Marijuana Policy Project points to a study showing a 13 nanogram/mL blood THC level in a man who was not impaired. Criminalizing alcohol, THC and other drug levels makes no sense for impaired driving prosecutions, rather than prosecuting for impairment itself. Instead, the alcohol, THC or drug level should, at worst for the defendant, be part of the totality of the circumstances in determining whether the driver was unlawfully impaired by alcohol, marijuana or drugs. To do otherwise violates criminal defendants' right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution.

The MPP article addresses states setting THC blood concentration limits on drivers as follows:

"Nevada and Montana have per se DUID laws. In Nevada, a driver is per se guilty of DUID if the level of THC in his or her blood exceeds two nanograms per milliliter (ng/mL) of blood. In Montana, the per se limit is five ng/mL for patients. In 2011, the Colorado Legislature debated setting a five ng/mL per se limit similar to Montana’s, but decided against it due to a lack of scientific consensus and concerns that many legal medical marijuana users’ blood would exceed the THC limits even when they are not legally impaired."

California NORML has an article on the relevance of THC blood content levels to impaired driving here.

One important decision that drunk and drugged driving suspects must make in states that allow them to refuse a breath, blood or urine test for impaired driving, is whether to refuse the test. Where I practice, the loss-of-license risks can be severe for refusing the test where the police officer has sufficient grounds for requesting the test. It is critical to consult a lawyer in advance of an arrest for influenced driving, to help decide whether to take such a test if ever asked to do so.

Obama will place less priority on enforcing against marijuana use in Colorado and Washington state.

nospam@example.com (Jon Katz) — Sun, 16 Dec 2012 01:00:00 -0500

On December 11, I blogged on Gallup's finding that 64% do not want federal marijuana prosecutions where pot is legal. Said poll follows the legalization of marijuna for personal use in Colorado and Washington state by referendum last month.

Where does the Obama Adminsitration stand on prosecuting the personal use of marijuana in Colorado and Washington state? On the one hand, the federal government ordinarily does not prosecute mere personal possession -- rather than possession with intent to distribute or distribution -- of marijuana unless the offense takes place on federal property or cannot be prosecuted in state court for whatever reason. On the other hand, one or both of Colorado and Washington state also have provisions for licensing marijuana cultivators and dispensaries for personal use, which are areas for the Obama Administration to decide whether to enforce against or not.

In any event, Reuters on December 14 reported that President Obama said he is disinclined to federally prosecute recreational drug use in Washington state and Colorado. On the same date, the White House Press Secretary issued a transcript of the day's press briefing that includes the following from the President's press secretary:

"What the President was saying I think is, much as he said about the use of medical marijuana, that in prioritizing our law enforcement objectives, that pursuing recreational users of marijuana in states where it has been, through a ballot initiative, declared legal, is not a top priority -- would not be a top priority given, as the President said, there are bigger fish to fry, more important law enforcement priorities."

Don't rest until marijuana is legalized throughout the land.

Is waiting for D.C. medical marijuana dispensary openings like waiting for Godot?

nospam@example.com (Jon Katz) — Mon, 26 Nov 2012 01:00:00 -0500

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

By statutory and regulatory law, medial marijuana is permitted in Washington, D.C., for the limited ailments of cancer, HIV/AIDS, glaucoma, and multiple scerosis.

In practice, no medical marijuana dispensaries are open yet in D.C. Here is hoping that this delay will be no longer.

On another note with medical marijuana, thus far health insurers are not paying for medical marijuana in medical marijuana states. This medicince can get expensive.

D.C. Circuit reconfirms no retroactivity to narrowing cocaine sentencing disparity.

nospam@example.com (Jon Katz) — Tue, 20 Nov 2012 00:00:00 -0500

By Fairfax County/Northern Virginia/Maryland/Beltway criminal defense lawyer Jon Katz. Defending DWI/ DUI/ Drunk Driving, drugs, marijuana/medical marijuana/cultivation, sex cases, felonies and misdemeanors. Fighting tirelessly for the best possible results for his clients. http://katzjustice.com.

In August 2010, the U.S. Congress passed enacted the Fair Sentencing Act ("FSA"), reducing the sentencing disparity for cocaine base/crack versus powder cocaine from 100-to-1 to 18-to-1, by increasing the quantity of crack needed to trigger the ten-year mandatory prison minimum.

Crack and powder cocaine are pharmacologically identical, and should not have a sentencing disparity. Moreover, when the disparity is further narrowed, this should be done by increasing the quantity of crack needed to trigger any mandatory minimum sentences, rather than cynically reducing the quantity of powder cocaine needed to trigger mandatory minimum sentencing.

Thomas Fields was convicted by a jury for "distributing 50 grams or more of crack and for possessing with intent to distribute another 50 grams or more." Fields v. U.S., _ F.3d _ (D.C. Cir., Nov. 9, 2012). Originally set for a 2009 sentencing, he obtained a few sentencing date continuances.

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The anti-marijuana war continues crumbling, with Colorado and Washington in the lead.

nospam@example.com (Jon Katz) — Thu, 08 Nov 2012 20:00:00 -0500

Thanks and a deep congratulations to the marijuana legalization activists who have struggled, fought and persuaded for countless hours over the decades to make marijuana no more regulated than alcohol. Their efforts paid off in gold and diamonds on Election Day, with the legalization of recreational marijuana possession in Colorado and Washington. More details are here.

With the foregoing law change in Colorado and Washington, no more should a cop's claim of marijuana odor permit a probable cause search of a car or anywhere else -- unless the cop has probable cause to believe the suspect possesses with intent to distribute an unlawful amount of marijuana or unless the feds get involved with going after alleged marijuana dealers -- thus helping reduce people's suffering from government encroachment on privacy and police tyranny (tyranny, at the very least, with the unnecessarily harsh tactics often employed by police to try to ferret out crime and to search cars, homes and elsewhere or contraband).

This is a victory to truly savor, as the walls further crumble on the governments' anti-marijuana wars.

President Obama and the rest of the federal government: The voters of Colorado and Washington have spoken. Please do not interfere with marijuana activities that are legal under applicable state laws, including medical marijuana cultivation, dispensing and possession that would be legal under the law of the state where the activity takes place.

Roadblocks to prosecuting for non-listed cannabis analogues: They are all over the place, including chocolate.

nospam@example.com (Jon Katz) — Thu, 01 Nov 2012 08:00:31 -0400

Anti-drug people in government keep trying to play catch up with producers of marijuana analogues by outlawing not only specifically-listed chemicals, but also analogues, for instance by calling them cannabimimetic agents.

A defendant prosecuted for possessing or dealing in cannabimimetic agents has various defenses to consider asserting, including the following (always consult a qualified lawyer -- this is not advice -- and consider the multiple state and federal laws and regulations involved, and the ever-changing laws):

- Does the product contain a listed prohibited substance?

- Even if a listed prohibited substance is contained in the product, did the packaging or shipping material include notice of that, or did the product's supplier provide a chemical analysis listing that did not include any prohibited items?

- Was the possessor on reasonable notice that any problematic substance was in the product? For instance, did the supplier provide a report from an independent chemist on the product's contents (and is the chemist's report accurate, and does it apply to all the supplier's product, or do various batches of the product have differing ingredients?)

- Virginia, as a for instance, outlaws described cannabimimetic agents rather than all of them -- Va. Code § 18.2-248.1, but even when limiting the cannabimimetic agent listing, the outlawed components are so vast in number as to render the prohibition unconstitutionally vague and overbroad, without enabling the defendant to have the necessary knowledge of the illegal nature of the substance, thus barring a conviction.

- To outlaw all cannabimimetic agents will be completely unconstitutional as entirely vague and overbroad, even covering such lawful substances as chocolate (thanks to a chemist who alerted me to the cannabinoid-chocolate connection).

By the way, the foregoing oft-referenced short 1996 Nature article on chocolate's cannabinoid mimics/cannabimimetic agents discusses anandamide as a "brain lipid that binds to cannabinoid receptors." A review of several sources on the Internet seems to show the following fascinating definition of anandamide to be accurate: "Ananda in Sanskrit means bliss, The compound Anandamide is present in chocolates and cocoa powder. It is structurally the ethanolamide of arachidonic acid. Biochemist Daniele Piomelli and coworkers [who wrote the foregoing brief Nature article) isolated anandamide- from chocolate and cocoa powder."

Challenging searches based on marijuana odor, and a destroyed Mason jar.

nospam@example.com (Jon Katz) — Fri, 26 Oct 2012 00:00:00 -0400

Again and again, police and prosecutors try to justify car searches solely on the basis of a claim of smelling unburnt marijuana. Criminal defense lawyers must push back diligently, effectively, and persuasively (with the financial resources available to the defendant, which are not always in abundance) against such claims, including doing a marijuana smell test on the officer if permitted by the governing rules and/or trial judge; challenging the officer's training in detecting unburnt marijuana, and the officer's track record in successfully determining, by smell, the presence of unburnt marijuana; challenging claims of smelling unburnt marijuana when only a small amount of marijuana is found or unbudding plants are found; challenging whether a police officer mistakenly convinces himself s/he smells marijuana based on a tip that the suspect deals in marijuana; and challenging failure of police to preserve the marijuana and its packaging, and failure to photograph the state of the marijuana before being removed from the packaging.

Congratulations to Jonathan Stoffels, whose lawyers successfully convinced a Chicago federal trial judge to suppress a mason jar containing ten grams of marijuana in his car (seized via a search claiming the smell of an overwhelming odor of unburnt marijuana, but how would the odor emanate from a sealed jar/), and all other evidence found in the car, due to police destruction of the jar. Further congratulations to Stoffels for assembling the finances to pay marijuana smell expert Richard Doty to discount the chance that Stoffels had marijuana odor on his clothes from growing marijuana at home, since the plants were too immature to have much of an odor yet.

It appears that Stoffels is now left with defending against marijuana plants found in his home, but the suppression of the evidence found in his car thereby removes from his upcoming trial any evidence of the discovery of the ten grams of marijuana, substantial amounts of cash, drug recipes, and a sales ledger found in his car.

I found Stoffels' case online, and here are his Motion to Dismiss due to police destruction of the Mason jar, along with Exhibits A and B thereto.

Is weed killer the solution to a large outdoor marijuana grow?

nospam@example.com (Jon Katz) — Thu, 04 Oct 2012 00:00:00 -0400

Image from public domain.

Even if marijuana were legalized to the extent that alcohol is legal, the government would have an interest in not having it grown surreptitiously by private parties on government property, lest children happen upon it, and lest violent turf battles take place over who gets the opportunity to grow there. Then again, if marijuana were legalized, private growers would not have much incentive to grow marijuana on government property, rather than on private property, where the growers can maintain quality control over the marijuana and minimize theft, destruction, and spoliation.

With the foregoing backdrop, Chicago helicopter-flying police recently found a huge, long-term marijuana grow on government property, shielded from discovery on the nearby highway by obstructed views.

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A[nother] prosecutor who smokes marijuana, and got nabbed. Legalize it.

nospam@example.com (Jon Katz) — Wed, 03 Oct 2012 00:00:00 -0400

Image from public domain.

Marijuana needs to be legalized now.

Marijuana use is so widespread -- and more harmless than liquor use -- that even a New Orleans municipal prosecutor (apparently not during his usual hours as a prosecutor) recently got nabbed when a marjuana cigarette/joint fell out of his pocket during a recent conversation with police. Certainly, he suffered lapse of judgment (or else lapse of recall that he had the joint, and that it was not more properly secured in a pocket) to be in the presence of police with marijuana (aside from the illegalty of marijuana in Louisiana, and the risks a lawyer takes by engaging in any jailable conduct). (Thanks to Above the Law for providing the foregoing link.)

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