Jeff Sessions and the Trump Administration's War on Legal Drugs

In Case You Missed It: 

At the beginning of this year, January 4, 2018, Attorney General Jeff Sessions issued a Memorandum for all United States Attorneys with the subject line “Marijuana Enforcement.”*  If you haven’t yet read this memo, you may be somewhat surprised at the mildness of its tone, given the outrage which was unleashed following its release.  The memo itself clarifies that the United States Code still considers cultivation, distribution, and possession of marijuana to be a serious crime with significant penalties, and explicitly states that marijuana is a “dangerous drug.”  The memo then overtly rescinds “previous nationwide guidance specific to marijuana enforcement”, i.e. memorandum issued under the Obama administration regarding federal marijuana law enforcement in states that have legalized use.  Finally, the memo directs all U.S. Attorneys to “follow the well-established principles that govern all federal prosecutions” as laid out in the U.S. Attorneys’ Manual, chapter 9-27.000.  Functionally what this means is that the Trump administration is rolling back all previous policies related to the non-enforcement of federal marijuana laws and calling for prosecutions of marijuana related offenses to be approached with the same analysis and priority as RICO violations (criminal syndicates), counterfeiting, or aircraft hijacking.

Despite the mild wording, make no mistake this is an intentional, direct, and abrupt change in position which comes at a time when the tide of marijuana legalization has swelled to arguably unstoppable proportions.  As you may remember, it was the Obama administration’s position that the federal government would take a hand’s off approach to enforcement of federal marijuana laws in states which had legalized its use.  Instead opting to allow those states to self-govern in this area, as each individual state is the best judge of their people’s perspective on the issue.  This was a welcome relief to many of the manufacturers and dispensaries that has been subject to government raids.  However, even after the Justice Department issued the memos signaling a cease fire on those operating within their state’s marijuana laws, the raids continued to happen.  It wasn’t until 2014 and the passage of the Rohrabacher-Farr amendment, which prohibited the Justice Department from spending government funds to interfere with the implementation of state medical cannabis laws, that the raids truly ended.

A Bit of a Mixed Message: 

The reason Jeff Sessions’ marijuana memo is such a big deal is that it exacerbates a significant conflict in law.  The federal government outlaws marijuana under any circumstances, where as many states have chosen to legalize marijuana for medicinal and/or recreational use.  Which means marijuana users/manufacturers/distributers that are fully compliant with all state regulations are at the same time violating federal law.  This conflict creates the exact kind of uncertainty which the existence of a rule of law attempts to alleviate.  Under the Obama administration’s guidance, the conflict issue became moot.  However, this shift towards enforcement of federal marijuana laws has brought the conflict back to the forefront and makes it ripe for litigation/appeal.  As this issue comes to a head, it is only a matter of time before the Supreme Court weighs in.

From a political perspective, the Trump administration’s position seems inconsistent with the general rhetoric and unnecessary given the changing times.  Yes, we can all see the hypocrisy in a far-right republican administration so blatantly interfering with the sacrosanct state’s rights which its party so zealously defends.  It’s almost enough to make one believe that the true motivation is grounded more in legislating morality rather than the talismanic value of limiting government overreach.  Isn’t state’s rights the basis of many republican arguments such as healthcare, same-sex marriage, and gun control?  But rapidly legalized marijuana? The federal government MUST get involved.  Unfortunately, this inconsistency and sacrifice of principle in favor of the immediate goal is nothing new.

What to Expect In the Future:

Jeff Sessions’ memo frees up the Justice Department to pursue prosecutions for federal marijuana violations in state’s which have legalized marijuana, which seems scary, but practically, does very little.  As of now, the aforementioned Rohrabacher-Farr amendment is still in effect and as long as it remains so, the Justice Department is congressionally prohibited from spending any funds on prosecution of state legalized medical marijuana.  Don’t get too comfortable however, because the Rohrabacher-Farr amendment is set to expire soon.  To make matters even more confusing the extension/expiration of this amendment is wrapped up in the spending bill, which is currently being debated in Congress, and the impending government shut down.  What a fun time to be an American.

BREAKING NEWS: As of today, after a brief government shutdown, congress voted on a 6-week continuing resolution that maintains present federal spending levels and priorities through March 23, 2018… which, includes the Rohrabacher-Farr amendment! So enjoy 6 more weeks of crazy, I mean medicinal marijuana protection!

These are interesting times in which we live.  Check back to get updates as the marijuana debate continues.

* https://www.justice.gov/opa/press-release/file/1022196/download

The Good, the Bad, and the High: Recent Developments in Arizona's Medical Marijuana Law

I’m sure many of you remember, maybe even celebrated, the legalization of medical marijuana back in 2010.  Arizona voters approved Proposition 203 and the subsequent Arizona Medical Marijuana Act (“AMMA”) which allows people with qualifying medical conditions to obtain a medical marijuana card, legalizing possession and use of marijuana within the limits of the law.  But, if that was where you stopped paying attention, you’ve missed quite a bit.  So, sit back and let me update you.

To provide some context for those unfamiliar with the wonderful world of medical marijuana; this is not your grandmother’s pot (slang for marijuana).  The marijuana sold in medical dispensaries has evolved far beyond the traditional flower (another term for marijuana) you may have smoked in college.  Of course, the dispensaries still sell the plant itself, but now dispensaries sell marijuana in all kinds of different forms.  Many of the products sold in dispensaries are made from extracted resin concentrates, no flower to be seen, just concentrated cannabis.  In fact, more than half of the products sold in dispensaries are made with extracted resin.  These days, medical marijuana patients have access to oil/wax filled vaporizing pens (concentrated oils in variable amounts of THC, the psychoactive component of marijuana), practically any conceivable marijuana infused edible from the traditional brownies to THC infused sodas, CBD oil (non-psychoactive oil that can help with pain, inflammation, and anxiety), shatter (glass-like cannabis extract), and much more.

It makes sense then, given the diversity and strangeness of these different medical marijuana products, that our conservative state would test the limits and scope of the AMMA.  One of the big issues that has been challenged under the AMMA is the use of the extracted resin products discussed above.  Back in March 2014, Maricopa County Superior Court Judge, Katherine Cooper, found that the AMMA allows medical marijuana patients to possess and use extracts of the marijuana plant, including extracted resin.  This was great news for proponents of the AMMA, but unfortunately it only established precedent for Maricopa County, leaving the extracted resin issue to be decided on a county by county basis.  

Fast forward to last month, October 2017, Navajo County Superior Court Judge, Dale Nielson, when faced with a similar question, ruled that the AMMA does not cover “cannabis” (extracted resin).  This ruling created a direct conflict in law between Navajo County and Maricopa County, which made this issue ripe for review by the Arizona Court of Appeals.  There is no appeal pending at this time, but the conflicting rulings made me sit up and take notice.

So, how does something like this happen?  The confusion and resulting dispute arises from the conflict between Arizona’s criminal code and the AMMA.   The AMMA defines Marijuana as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.”  A.R.S. § 36-2801.  Arizona’s criminal code however, specifically differentiates between marijuana and cannabis, despite the fact that cannabis is essentially the scientific term for marijuana.  The criminal code of the Arizona Revised Statutes, Chapter 34 deals entirely with drug offenses.  Chapter 34 defines marijuana as “all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.”  A.R.S. § 13-3401(19).  This clearly does not include extracted resin.  The same chapter defines cannabis as “(a) the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin… (b) every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.”  A.R.S. § 13-3401(4).  Not only are marijuana and cannabis defined differently, but they are also penalized differently under Arizona’s criminal code.  Possession of marijuana, so long as the amount is less than two pounds, is considered a Class 6 felony, whereas possession of cannabis, in any amount, is a Class 4 felony.  A.R.S. §§ 13-3405, 3408. That means, if you are caught with just under two pounds of marijuana, you would receive a significantly lighter sentence than someone who is caught with a .500mg vape pen or any other extracted resin based product.  In fact, extracted resin based marijuana products are technically considered narcotic drugs under Chapter 34.

Now obviously the AMMA allows medical marijuana card holders to avoid criminal penalties for possession, so card holders can carry around their medicinal marijuana without worry.  The relevancy of the criminal code to this discussion comes into play because the AMMA does not define cannabis or provide any guidance specifically on extracts.  You may be thinking, “a normal citizen would look at the AMMA’s definition of Marijuana and assume that based on the language ‘ALL parts of ANY plant of the genus cannabis’ the statute is intended to cover all forms of the genus cannabis, including extracts.”  But that is where you, normal citizen, would be disappointed. If there is anything you can say about the law, it’s that it is unnecessarily complicated and lacking in common sense.  To be fair, that unnecessary complication and lack of common sense is the reason I have a job, but I digress.  However, since Arizona as a State has historically differentiated between marijuana and cannabis, at least from a criminal perspective, we have county prosecutors who are trying to pursue possession or narcotic drug charges against a man who has a medical marijuana card, and a judge who has allowed them to do so, because under his interpretation of the AMMA, it does not cover extracted resin.

You may be asking yourselves, what does all of this mean?  Am I attempting to warn you so you can run out and stock up on enough vape pens and dabs (highly concentrated doses of cannabis that are smoked using a special rig) to last you till your next Colorado trip? No! I repeat, no I am not advising you to stock up on extracted resin products.  But I am telling interested parties to pay attention!  As of now, medical marijuana card holders can legally possess extracted resin products within Maricopa County, but as soon as they enter Navajo County, they could be arrested and charged for possessing the same products which are legal in Maricopa County.  If that sounds strange to you, you’re not alone.  This is the exact kind of issue that the appeals process is designed for, and this conflict is yet to be resolved.  So, if/when the Arizona Court of Appeals hears a case about the legality of extracted resin under the AMMA, there is the possibility that the AMMA’s protections could be seriously undercut and that extracted marijuana resin products could return to being classified as narcotic drugs.  But there is also the possibility that the Court of Appeals confirms that extracted resin products are indeed covered by the AMMA. Either way, this signals that State 48 is on the precipice of a big medical marijuana decision that could have far reaching effects.

So, stay tuned my stoned (a euphemism for someone experiencing the psychoactive effects of THC) friends! I will keep you updated!

Rights, Riots, and Respect

Knowing Your Rights & Asserting Them Respectfully When Interacting with Law Enforcement

There has been a lot (understatement) of news in the past few months and years, about destructive conflicts between the police and the citizens they are intended to serve.  The stories are devastating and raise provocative questions about racial bias, abuse of power, and the multi-sided nature of any event.  Unfortunately, dear reader, I don’t have enough room in this article or mental bandwidth, to do an in-depth analysis of the cause and effect, while offering a well thought out and effective answer to the problem.  Minds far superior to mine have failed to offer a simple solution to this multi-faceted issue and I am aware enough to understand just how much I don’t understand.

What I can and will do is give you a practical guide to interacting with police officers in the current climate.  This is not intended to be an endorsement of the status quo, but since we all have to continue to live in this environment while the overarching issues are being addressed, it is my hope that this information will help keep people safe.

A few things that the police can always make you do: 

• You are required to provide identification if you have it, and if you don’t, you must provide correct identifying information about yourself.  If you lie to a police officer your information they can charge you with False Information.
• If asked, you are required to exit the car.  You cannot refuse to get out of the car if you are involved in a lawful traffic stop.
• If asked, you are required to tell police if you have a deadly weapon or firearm in your vehicle.  To be on the safe side, I would inform police as soon as possible and in the least threatening way that you have a weapon in the vehicle.

A few things you can always decline:

• Consent searches.  There is a very high and complicated burden the police must meet in order to search you, your vehicle, or you home, without your consent.  Even if you have nothing to hide, protect your right to privacy by politely declining a search.
• Voluntary statement.  The police can ask you questions, but you do not have to volunteer additional information and you can refuse to answer incriminating questions.  You’d be surprised how many people admit to things, even things they aren’t being investigate for, because they don’t realize they can say no or ask to speak to an attorney.  (Note: your official right to counsel and silence does not come into play until after you’ve been arrested.)
• Field Sobriety Tests (FST).  FSTs are on scene tests the police do to determine impairment (Walk & Turn, Finger to Nose, HGN, Etc.).  These tests focus on o mobility, coordination, and perception.  If you are stopped for suspicion of a DUI, you can always refuse to participate in FSTs.
• Portable Breath Test (PBT).  A PBT is a portable breathalyzer that attempts to test BAC.  However, the PBT is inaccurate and inadmissible in court.  The only purpose of a PBT is to help police establish the necessary probably cause to arrest you.  If you are asked to blow into a PBT, you can always refuse.  Do not however, confuse this with the blood draw or breathalyzer at the station/mobile DUI center.  If you refuse the blood draw or breathalyzer after you’ve been arrested, you will lose your license for a year.

The best advice I can offer is that when interacting with police, be as respectful as possible, they have power and while I don’t believe that generally police are looking for ways to abuse that power, it is best to respect the authority they yield.  If you think your rights are being violated or you’re not sure whether you can say no, ask, in a non-aggressive way.  The key is addressing the police in a way that does not escalate the situation.

* As with many things in the law, there are exceptions to exceptions, and this is not a comprehensive review of your rights when interacting with police.  If you have an issue, always consult with an attorney.

Top 5 Tips for Injury Accidents

We’ve all probably been involved in an accident of some sort in our lives.  Whether it be a car accident, a workplace accident, or you’re just prone to clumsy accidents, let’s face it, injuries are just a part of life.  What I didn’t understand until I began working on personal injury cases is that more often than not, when the injuries are the result of another person’s behavior, the law allows for compensation for those injuries.  So with this thought in mind, here are the Ardeo Law Group’s Top 5 Tips for dealing with an Injury Accident:

1.       Get a Report:  When involved in an accident, make sure that there is an official report taken.  If you are involved in a car accident, always call the police!  You will want that report later and you will want the police to make a finding of fault.  If you are injured at work, make sure the human resources department documents the injury.  Bottom line: Insist on a report being made and make sure you get a copy of that report!

2.       Get Emergency Medical Care:  If you are injured, take care of yourself.  Go to the emergency room, an urgent care, or your primary care physician, and get checked out as soon as possible.  Best case scenario? Get a medical evaluation same day, as soon as its okay to leave the scene and/or get an appointment with your physician of your choice.  Having a record of your condition immediately after the accident will help establish damages and in turn compensation.  Bottom line: DO NOT DELAY TREATMENT

3.       Lawyer Up:  In the past I have relied on my insurance company to settle injury claims on my behalf, and I’m not saying it is a cardinal sin, but what you should be aware of is this: Your insurance companies interests are NOT your interests.  While your insurance company does have a duty to represent you, in the end they are likely a large corporation with conflicting interests.  Your interests are best served by someone who is looking out for only you, and that is what an attorney does best.

4.       Take Time to Treat:  Often times people skimp on their treatment and this is a personal disservice, not only in terms of compensation, by also in terms of your health.  Your attorney can connect you with chiropractors, physical therapists, pain management doctors, etc.  Follow your doctors plans all the way through.  Take the time your body needs to heal and complete treatment.  This ensures the best results for your health and for your wallet.

5.       Document Everything:  After you’ve been in an accident it is important to document everything - your treatment, your symptoms, missed work days, loss of compensation, everything related to the accident.  Get a journal write it all down.  The more specific you are the better your attorney can relate your losses, and the more money you will receive in damages.

Have questions? Been injured in an accident recently? Call us at 480.567.4112 for a free consultation!