Proposition 47: The Safe Neighborhood and Schools Act

election-buttonProposition 47, on this November’s ballot, would bring sweeping changes to how various crimes in California are classified.  If passed by California voters, Proposition 47 would reduce the classification of most “nonserious and nonviolent property and drug crimes” from a felony to a misdemeanor. 

The single greatest area of impact this act would have is the reclassification of the personal use of most drugs from a felony to a misdemeanor.  This, in and of itself, is a huge step in a positive direction, on a multitude of levels.  Other crimes that would be reclassified as misdemeanors are: Shoplifting, where the value of property stolen does not exceed $950; grand theft, where the value of the stolen property does not exceed $950; receiving stolen property, where the value of the property does not exceed $950; forgery, where the value of forged check, bond or bill does not exceed $950; fraud, where the value of the fraudulent check, draft or order does not exceed $950; and writing a bad check, where the value of the check does not exceed $950. 

Further, this act would allow for re-sentencing for anyone currently serving a prison sentence for the aforementioned crimes, which could be as many as 10,000 inmates. The act would require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.

However, one major caveat to the above relates to defendants who have prior convictions for murder, rape, certain sex offenses or certain gun crimes, as they can still receive felony sentencing for the above-enumerated crimes. 

This measure could have a huge fiscal impact at the state and county level, with annual savings projected to be in the hundreds of millions of dollars.  Savings at the state level would be passed on to school truancy and dropout prevention, mental health and substance abuse treatment, and victim services, where the money would generate exponentially greater utility than it would incarcerating individuals convicted of the above offenses.  

While reservations about some aspects of this ballot measure, such as reclassifying the theft of a firearm costing less than $950 to a misdemeanor, have been expressed, it is important to remember that Proposition 47 is a minor tweak to California’s Penal and Health & Safety Codes.  The counter-argument to the above is that in the vast majority of cases, the theft of a firearm would also constitute burglary, which would remain felonious conduct, and anyone who breaks into a commercial building or residential dwelling to steal a firearm, still faces the potential of a felony strike conviction, depending on the facts of the case. 

On the whole, I think Proposition 47 is a major step in the right direction from both a fiscal and moral perspective, especially as it relates to the personal use of controlled substances, and how we penalize such conduct. 

 

People v. Baniani: A Huge Win for California’s Medical Marijuana Patients and Collectives- Law Office of Scott C. Thomas Press Release

Santa-Ana-Court-of-AppealsOn August 22, 2014, the Court of Appeal, Fourth District, Division Three, rendered a landmark opinion in support of the rights of qualified patients and collectives in having an affirmative defense under California’s Medical Marijuana Program Act (MMPA). 

Attorney Scott C. Thomas, of the Law Office of Scott C. Thomas, and Attorney Christopher Glew, of the Law Offices of Glew & Kim, were appellate counsel on the matter. 

According to Mr. Thomas, “This is a landmark ruling which affirms the rights of qualified patients, who are members of a collective, to have a defense under the MMPA.  No longer can prosecutors make the argument that anytime money is exchanged for marijuana, between members of a collective, the defenses afforded under the MMPA are voided because any monetary transactions are per se unlawful, or that these transactions constitute a ‘profit,’ in violation of the law.  The case clearly spells out that anytime a criminal defendant raises a reasonable doubt as to his or her qualified patient status, they are afforded a defense under the MMPA, and the question of whether or not the collective made a profit is a question for the jury, not the trial judge, to decide.” 

“This decision is another giant step toward legitimacy for medical marijuana patients,” said Mr. Glew. “It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws.”

Baniani, the founder of Herbal Run, a medical marijuana collective in Newport Beach, CA, was represented by Mr. Glew during his first trial, and was afforded a defense under the MMPA.  Accordingly,the jury on his first trial hung on both the sale of marijuana, and possession of marijuana for sale, charges.  At Mr. Banianai’s second trial, the trial court denied Mr. Baniani a defense under the MMPA, because the court found that there was evidence Mr. Baniani charged for marijuana.  Mr. Baniani was subsequently convicted of possession of marijuana for sale.

The Court of Appeal reversed the trial court’s ruling, with regard to the denial of a defense under the MMPA, and remanded it for a new trial, agreeing with appellate counsel’s assertion that the denial of a defense under the MMPA was erroneous and prejudicial to Mr. Baniani, especially in light of the fact that at Mr. Baniani’s first trial, when he was afforded a defense under the MMPA, the jury hung on both counts. 

“This victory follows in the steps of the Colvin and Jackson decisions, and will put an end to prosecutors arguing that qualified patients, who collectively associate to cultivate marijuana, are not afforded a defense under the MMPA.  Now prosecutors will have to put the issue before a jury, who will receive an MMPA affirmative defense jury instruction, and prove their case beyond a reasonable doubt.  It’s a big win for the medical marijuana community,” said Mr. Thomas.

Case reference number G048535 (Super. Ct. No. 10HF1852)

The opinion, which has been certified for publication, can be found here: http://www.courts.ca.gov/opinions/documents/G048535.PDF

Marijuana and California DUI Law

handcuffs-marijuanaAB 2500, authored by California State Assemblyman Jim Frazier, is a proposed amendment to California’s DUI statute, Vehicle Code § 23152, et. seq.  The bill proposes the addition of a new “f” count, which states, “It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”  What does this mean?  Essentially, it would be unlawful to drive a vehicle in California with any detectable amount of THC, or any of the other enumerated substances, regardless of whether or not it is psychoactive. 

With regard to marijuana, this proposed amendment becomes particularly problematic.  Most drugs, like cocaine and methamphetamine, are water soluble, and stay in a person’s system for a couple days. Marijuana, on the other hand, is fat soluble, and can stay in a person’s system from a couple days, to up to three months, and in some cases, beyond.  Weight, body fat, amount consumed, and in particular, the frequency of usage, all determine how long a person will test positive for marijuana.

The issue with this proposed amendment is that there is no rational nexus between trying to prevent impaired driving and punishing drivers who are completely sober, but may have used a substance within the past couple days, or worse, the past couple months, and test positive on a drug test.  At its core, it seems as though this proposed amendment seeks to punish those who use marijuana and other substances, under the guise of preventing driving under the influence. 

This is especially disconcerting when you take into account that Vehicle Code § 23152(e) provides that, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”  Here, the law makes sense because we are punishing drivers who drove “under the influence of any drug,” not drivers who tested positive for a drug.

Although this bill has not yet been passed, it illustrates an alarming trend in perverting the purported purpose of a law, to target specific groups of people. 

Roadside Drug Tests: What You Need To Know

436926-lapd-officer-demonstrating-the-oral-swab-toolStarting at the end of 2013, the LAPD rolled out a new mouth-swab roadside drug testing kit for use at DUI checkpoints.  Well, for 2014, patrol officers now carry these kits as part of their standard issued equipment, so we will undoubtedly see their use rise.  Below is what you MUST know about these tests and your legal rights.

First, these kits test for seven different drugs, but will inevitably be used most on drivers suspected of driving while under the influence of marijuana.  There is no legal requirement that a driver submit to such a test.  Nowhere is it codified that a driver must submit to an oral-swab drug test if they are suspected of DUI for drugs.  However, that will not stop officers from using intimidation, coercion, or outright misrepresentations to try and steer drivers to consent to these tests.

At this point, it’s critical to make an important distinction: oral roadside drug tests are different than the breath or blood sample you are required to give, post DUI arrest.  Failure to give a breath or blood sample, post DUI arrest, can result in a one-year license suspension, under California’s implied consent law, in addition to potential DUI charges.  However, with regard to these oral-swab drug tests, you have the right to refuse them and face no penalty, despite what officers in the field may threaten. 

Given the rise in number of medical marijuana patients and collectives in the state, there are many drivers on the road who are medicated; it is only a matter of time until the legislature acts to address this trend and makes these roadside drug tests mandatory.  However, for the time being, know your rights and recognize that you do have the right to refuse oral-swab roadside drug tests without consequence. 

Using Medical Marijuana In California

Scott C Thomas Criminal Defense Attorney California Medical Marijuana DUI

It never ceases to amaze me how often I hear people say that because they have a physician’s recommendation to use medical marijuana, or a Medical Marijuana Program Act ID card, they can smoke marijuana anywhere while doing anything…even while driving!  Before delving into the inaccuracies of the above statement, let me be crystal clear on one issue: possession of marijuana is illegal under Federal law and any advice rendered, applies only to California state law.

Before I explain where you can smoke medical marijuana legally in the state of California, perhaps it would be better to start by explaining where you cannot smoke medical marijuana.  Under California state law, you cannot smoke medical marijuana in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat.  That being said you are free to smoke in any place that is not listed above.

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