Proposition 64 Part One: Ongoing Criminal Liability Issues
On November 8, 2016 California voters passed Proposition 64, joining Colorado and Washington among states that have now legalized recreational marijuana possession for personal use. But anyone who attempted to read the full text of the initiative can see that the law does much more than simply legalize cannabis. It also establishes a complex tax and regulatory system that will take over a year to fully implement, and it leaves several important issues to be resolved by the Legislature and the courts.
This first installment in this series addresses the remaining legal pitfalls for producers, distributors, and consumers of cannabis. The second installment will deal with the requirements for obtaining a license to participate in the budding industry.
So to start out, I would be derelict if I failed to inform my audience that you can still be prosecuted for marijuana offenses at both the state and federal level.
Federal Law Concerns:
Cannabis is still federally classified as a Schedule 1 Controlled Substance by the DEA, placing it in the most restrictive category of drugs. Under this classification, pot is illegal to possess even for purposes of medical research without special government approval. Congress has failed to take any action reflecting the shift in public opinion on the issue, and the Supreme Court’s last ruling on the subject strongly affirmed Federal power to prohibit cannabis despite less restrictive state laws. Despite President Obama’s talk about respecting state laws, his administration continued to prosecute medical cannabis users. Given the foregoing, there is little reason to expect President Trump and his nominee for Attorney General to adopt a hands-off policy in this area.
All this is to say that even if you are in total compliance with California law, you still face the prospect of being criminally prosecuted in Federal court, facing up to five years in prison, depending on the amount of pot you are found with. See 18 U.S.C. §841(D). And that’s just for possession. If you are involved in distribution, you could be charged with a broad array of federal offenses that increase your total prison exposure.
Vague DUI Standards:
Another concern is that the initiative as passed does not establish a legal standard for driving under the influence of cannabis. This gap will almost certainly be filled in by the Legislature in the coming months. If history is our guide, when this legal standard is codified, it will not be very useful unless it is backed by much more extensive scientific research than we have so far. For instance, after Colorado voters legalized recreational cannabis, the legislature of that state imposed an arbitrary per se limit of .5 nanograms (ng) of THC per milliliter (ml) of blood. However, unlike the traditional .08 blood alcohol concentration, there is very little scientific evidence to support the idea that someone with that level is presumptively impaired. And it is widely known that THC remains detectable in the blood long after impairment ends.
In the meantime, however, police can still arrest you for suspicion of driving under the influence, and the government does not have to prove that you had any threshold level of THC in your body to get a conviction. Under existing law related to drug use and driving in California, all the prosecution has to show is the presence of some THC and that it impaired your driving. Current Vehicle Code §23152(e) says only that “It is unlawful for a person who is under the influence of any drug to drive a vehicle,” without establishing any specific concentration threshold. On the other hand, even in Colorado under the .5 ng/ml standard, juries have acquitted people of DUI charges despite being as much as four times the legal limit. This is a form of jury nullification—a tradition with a rich but forgotten history in American law. These juries have said, in effect, “We know that this person violated the law, but we are going to acquit them anyway because the law is wrong as applied because the per se limit is arbitrary.”
Furthermore, despite the difficulties with the per se limits, some companies are working on developing a field breath test for THC. While this project has numerous technological hurdles to overcome, and will not resolve the problem of coming up with a meaningful level to establish impairment, it will certainly make it easier for the police to arrest people for suspicion of drugged driving.
Retroactive Resentencing and Dismissal
But although cannabis users aren’t totally out of the woods yet, there’s still good news. Proposition 64 has also established procedures for resentencing and retroactive dismissal of previous state convictions for possessory marijuana offenses. So not only will there be no more state level prosecutions for simple possession of cannabis, but if you have a prior conviction, you can now have this
Hire an Attorney
Despite the growing movement toward legalization, cannabis freedom is still a dynamic and controversial area of the law, and both medical and recreational users still face many pitfalls that could land them in the criminal justice system. When you are faced with prosecutions such as these, you need the assistance of a creative attorney who will fight passionately for your rights. Mr. Nelson practices criminal law and is a member of the Federal Bar for the Southern District of California. If you have a prior conviction, he knows how to get it dismissed. If you find yourself the subject of a federal prosecution, or a state DUI prosecution, he will be a zealous advocate on your behalf. Call today!
If you enjoyed this article keep an eye out for our next installment, coming soon, on the procedures and requirements for obtaining a license to cultivate and sell cannabis.
© The Law Office of Justin Nelson
Proposition 64: Licensing and Regulatory Issues
On November 8, 2016 California voters passed Proposition 64, joining Colorado and Washington among states that have now legalized recreational marijuana possession for personal use. The full title of the law is “The Control, Regulate, and Tax Adult Use of Marijuana Act,” (short title: “The Adult Use of Marijuana Act”).
For criminal defense attorneys weary of seeing their clients going to jail and suffering other negative consequences for possession of a harmless plant, this is welcome news. However, it’s important to realize that this measure did not create a free for all. It doesn’t mean that just anybody can now engage in cannabis cultivation and distribution.
Unfortunately things are rarely that simple in the law. There are always tradeoffs. In this case, the legalization of pot came with a complex tax and regulatory system that sets strict requirements on those seeking to enter the newly legalized industry.
Part one of this series addressed some of the ongoing criminal liability issues related to cannabis. This installment discusses the legal requirements for obtaining a license to grow and sell marijuana in California under the new regime.
Just because you’ll no longer be prosecuted in state court for mere possession, you can still get into a lot of trouble for violating the regulations governing distributors. Not only do you risk federal criminal liability, but if you operate in violation of the licensing requirements, you can be fined three times the cost of obtaining a license for every day you operate without a license. Business and Professions Code §26038.
With that in mind, be warned that none of what follows constitutes legal advice. This is general information designed to educate the public about a developing area of law. Before acting on this information, you should consult an attorney about your individual situation.
The primary agency charged with issuing licenses under the new law is called the Bureau of Marijuana Control (previously called the Bureau of Medical Cannabis Regulation). However, as with any business endeavor, the aspiring pot farmer or retailer must deal with various other state agencies, and each of them have the authority to revoke or suspend a license for failure to comply with regulations. Business and Professions Code §26031.
For a variety of legal reasons, it’s always a good idea to protect your investments by registering your business entity with the Secretary of State. Incorporating (or forming an LLC) protects you from losing your personal assets if your business gets sued. This is true no matter what type of business you’re involved in.
Licensees will also need to deal with the Board of Equalization and pay the Marijuana Excise Tax. This is on top of other California state taxes they must pay as profitable businesses (not to mention Federal tax—a legal minefield of its own in this context). Licensees will also be subject to regulations promulgated by the Water Board (a division of the state Environmental Protection Agency), the Department of Food and Agriculture, the Department of Public Health, and a myriad of other state administrative agencies.
Section Three of the Adult Use of Marijuana Act outlines the guiding principles that subsequent regulations must follow. The purpose is “to establish a comprehensive system to legalize, control, and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana…for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana.” Some of the specific regulatory goals include:
1. Strict control of cultivation,
2. Allow local governments to ban or regulate nonmedical marijuana businesses,
3. Require comprehensive testing for safety,
4. Require child-resistant containers,
5. Impose strict environmental and product safety standards,
6. Prohibit the sale of nonmedical marijuana by businesses that also sell alcohol or tobacco,
7. Prohibit the marketing and advertising of nonmedical marijuana to persons younger than 21 years old,
8. Prohibit cultivation of marijuana on public land or while trespassing on private land,
9. Raise revenue through taxation,
10. Prevent the illegal diversion of marijuana from California to other states or countries or to the illegal market,
11. Preserve law enforcement resources to prevent and prosecute violent crime, and
12. Reduce barriers to entry into the legal, regulated market.
The list above is not exhaustive, but it does reflect some of the highlights that we might call the “legislative intent” of the initiative. For purposes of this article, we are focusing on the final item: “barriers to entry into the legal, regulated market.” As the law is written, and currently stands to be interpreted, a great many barriers to entry into the market remain despite the stated intent. While the threat of prosecution is no longer a “barrier to entry” into the market, compliance costs and transaction costs associated with obtaining a license to produce or sell cannabis will be significant.
So how do you go about obtaining a license? The short answer is that you can’t, at least not yet. The longer answer is that right now multiple bureaucracies are scrambling to implement a process for licensing, and writing regulations and guidance documents based on the new law. The first licenses will likely be issued in 2018. When licenses are finally issued, there will be at least 19 different classes of licenses. These include 13 categories of cultivation licenses, two categories of manufacturing licenses, as well as licenses for testing, retailing, distribution, and mircobusinesses. Each category will likely come with specific regulations of their own once the agencies in charge start issuing them. But we don’t know what that will look like yet. For now, the law sets out a set of general rules that will apply to every category of license.
The following is a general overview of some of the more significant rules that will govern how licenses will be issued. This is not an exhaustive review of every provision, nor does it predict how the regulatory bodies charged with implementation will interpret the statutes or the additional regulations they will promulgate. With that said, some of the more significant requirements are:
1. Priority to Medical Licensees: The new law states that those who had medical marijuana licenses under the Compassionate Use Act (Proposition 215) will be given priority in the granting of licenses. For further information, see: Business and Professions Code §26054.2.
2. Residence requirement: This requirement is enacted with the purpose of ensuring that cannabis legally grown in California does not travel in Interstate Commerce. One stated purpose of the law and a guiding principle for regulators is to establish a regulatory structure that does not bleed over into the black market in cannabis that exists in other states. While this requirement may prove ineffective in accomplishing its intended result, and while the Federal courts do not view this as relevant to its interstate commerce jurisdiction, license applicants should nevertheless be California residents. For further information, see: Business and Professions Code §26054.1.
3. No alcohol license: Persons licensed to cultivate or distribute cannabis may not simultaneously hold any license to manufacture or distribute alcohol. For further information, see: Business and Professions Code §26054(a).
4. *No felony convictions: The asterisk is to indicate that the law does not strictly prohibit all convicted felons from obtaining a cannabis license. However, it does state that persons with criminal convictions “substantially related to the qualifications, functions, or duties of the business or profession” may not be licensed. It is apparently left to the agencies regulating the trade to determine what specific offenses merit denial of a license on these grounds, but the guiding principles outlines above will be relevant. Certain specific offenses are also enumerated such as violent felonies, felonies involving fraud, drug trafficking convictions, and convictions for providing drugs to minors. The practical effect of this is that the agencies charged with implementing this system will probably succeed in denying licenses to most people with felony convictions. For further information, see: Business and Professions Code §26057.
5. Detailed description of operating procedures: This includes operating procedures for: cultivation, extraction and infusion methods, the transportation process, the inventory process, quality control, and the source or sources of water used. This provision also includes a requirement that applicants submit fingerprints. For further information, see: Business and Professions Code §26056.
6. Detailed diagram of physical space used: The law will also require applicants to submit a detailed diagram of the space used for cultivation, production, and sales. For further information, see: Business and Professions Code §26056(d).
7. Not prohibited by city: The law specifically states that municipal law can restrict recreational cannabis producers and retailers from operating within city limits. For further information, see: Business and Professions Code §26055(e).
8. Not near a school: The law forbids recreational marijuana facilities from operating within 600 feet of any school. For further information, see: Business and Professions Code §26054(b).
The above list is not exhaustive. It merely outlines some of the key requirements. We can expect that these requirements will become still more onerous and restrictive as agencies implement their licensing protocols and as the tax hungry California legislature makes their own additions to the system.
The foregoing is general information and does not constitute legal advice. If you want to enter the legal marijuana industry there are a wide variety of legal risks and considerations that are beyond the scope of this article, including Federal criminal prosecution. It is a serious decision and requires individual consultation with an attorney who can assess your situation in detail. Call the Law Office of Justin Nelson for a full evaluation of your business plan today. Mr. Nelson is dedicated not only to protecting criminal defendants charged with cannabis related offenses, but also for advocating for the rights of entrepreneurs on the cutting edge of this rapidly changing legal landscape.
© The Law Office of Justin Nelson
Stop and Frisk: The Limits of Investigatory Detentions
A police search can be a frightening and unsettling experience, even to an innocent person fully aware of their rights. When an individual is not informed of their rights, the experience can escalate from unsettling to catastrophic. It is difficult to remain cool-headed enough to assert one’s rights in any police encounter, but in the case of persons stopped on the street and frisked, few people have a clear and detailed understanding of their rights.
In a trend spearheaded by the NYPD under former Mayors Giuliani and Bloomberg, the controversial practice of “stop-and-frisk” has become increasingly popular in recent years among police forces across the nation. The theory supporting the practice, known as broken windows policing, amounts to the belief that high-crime neighborhoods may be improved by aggressive police tactics that focus on so-called “quality of life crimes” such as loitering, vandalism, and public intoxication. The practice has generated controversy not only for being highly aggressive (often alienating police from the neighborhoods they serve), but also for disproportionately affecting racial minorities.
Search and Seizure: A General Introduction
Incriminating evidence obtained illegally may be excluded at trial. Under the 4th Amendment of the U.S. Constitution, a search is legal if it satisfies at least one of the conditions listed below (note: the following is not an exhaustive list, but a general summary):
1. A valid warrant is issued by an impartial judge,
2. The officer has probable cause to believe that criminal activity has taken place,
3. Exigent circumstances exist such as destruction of evidence or danger to life,
4. The search is incident to a lawful arrest, or
5. The search involves a limited pat-down for weapons based on reasonable suspicion.
Each of the above requirements merits a full article of its own. This post focuses on the fifth requirement. Both Federal and California State Law permit this type of search so an officer may ensure his or her own safety before investigating a situation further.
The Officer Safety Rationale and the Reasonable Suspicion Requirement
The practice of stop-and-frisk, known as a “Terry stop” was first recognized as valid by the United States Supreme Court in Terry v. Ohio, a 1968 case involving the pat-down of an attempted robbery suspect whom police observed “casing” a store. The officer in that case wrestled the suspect to the ground and patted him down, finding a gun concealed in his clothing. Although it found that the officer’s suspicions did not rise to the level of probable cause, the court upheld the search and ruled the gun admissible on the basis that the search was limited to the discovery of weapons in order to secure the officer’s safety while he investigated further.
But the Terry court emphasized that the scope of these searches must be limited to the discovery of weapons. It does not give police a blank check to frisk whomever they want in search of any sort of evidence they can use against a person. The pat-down must be outside the clothing, and the officer may only use it to identify objects that could potentially be weapons. It may not be used as a pretext to require someone to empty their pockets. It may not be used as a pretext to discover drugs, cash, “suspicious bulges,” or other contraband not constituting an immediate threat to officer safety, unless it reasonably resembles (by outline or feel) a weapon.
Police sometimes stretch Terry stops too far, using them as a pretext to extend a search further and discover evidence other than weapons, or to trick suspects into “voluntarily” emptying their pockets to reveal cash or drugs. When this happens, defendants who are not aware of their rights are often charged with non-violent misdemeanors simply because they did not know that a search was illegal or exceeded its legitimate scope. This results in prosecutions and convictions the likes of which the Terry rule was never intended to support.
If you are arrested as a result of an illegal search, it is critical that you obtain the assistance of a competent attorney who will fight for you. If you are in need of legal assistance, contact Fallbrook Attorney Justin Nelson for a free consultation. When liberty is at stake, you can’t afford to do without the best representation.