Articles Tagged with Laws

With the passing of SB 339 in 2015, otherwise known as the “Texas Compassionate Use Act,” Texas joined more than three quarters of the states in establishing a medical marijuana program. However, many are unaware that prior to 2015, derivatives of marijuana were legal in the state. example-2-300x159

When Marijuana isn’t Marijuana


Under Texas law, marijuana is defined in the Texas Health and Public Safety Code as:

Louisiana passed two medical marijuana laws in 2016 signed by Governor Bell Edwards (D-Louisiana). These two laws were SB 271[1] and SB 180[2] both authored by Sen. Fred Mills (R- District 22). These two bills established Louisiana as the 25th state to establish a comprehensive medical marijuana program. Louisiana’s history with medical marijuana, however, provides insights into the struggle to reform a medical program once a state has passed it.

First in the Nation

While it is mostly a footnote in history now, Louisiana was actually the first state in the nation to pass a medical marijuana program back in 1978. Passed only eight years after President Nixon signed the Controlled Substances Act, Louisiana’s original medical marijuana program, authored by Sen. Tony Guarisco (D-Morgan City) and signed by Governor Edwin Edwards (D-Louisiana) allowed patients suffering from glaucoma and cancer to use medical marijuana.

iStock_000000350401XSmall.jpgThe government intercepts the phone calls of suspect criminals through the use of a wiretap. Wiretaps are search warrants that allow a law enforcement agency to eavesdrop on phone calls or internet communications (E.g. cell, land line, Skype calls). Law enforcement agencies can only eavesdrop after they obtain a court order from a judge authorizing them to listen in on certain conversations. In order to obtain a court order, the officer must file an application with the court requesting authorization from the court to conduct a wiretap. The application is an essential part of the process and is subject to strict compliance with 18 U.S.C.A. § 2518.

The first requirement is that the investigative or law enforcement officer making the application be identified along with the officer who authorized the application. This requirement is important for a couple of reasons. First, there are strict disclosure laws that prohibit liberal sharing of wiretaps. Officers cannot freely discuss wiretaps with whomever they want, even if they are talking to other officers. The disclosure must be permitted by statute. Second, it identifies the law enforcement agency that is conducting the wiretap. Particular agencies can conduct wiretaps for certain reasons. Certain agencies investigate certain crimes; not all crimes are subject to wiretap surveillance either. A law enforcement agency must be investigating a crime that is enumerated under 18 U.S.C.A. § 2703, and the crime must be one that the agency investigates.

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iStock_000011009457_ExtraSmall.jpgPresident Obama thinks marijuana is no more dangerous than alcohol and is less dangerous in terms of its impact on consumers. In a January 2014 interview with the New Yorker, the president compared marijuana to other vices such as alcohol and cigarettes, stating “As has been well documented, I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life. I don’t think it is more dangerous than alcohol.”

While the president doesn’t find the use of marijuana alarming, he is very bothered by the fact that minorities, especially minority youth, have a radically disproportionate rate of arrest and imprisonment. “Middle-class kids don’t get locked up for smoking pot, and poor kids do,” Obama said. “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support to avoid unduly harsh penalties…we should not be locking up individual users for long stretches of jail time when some of the folks who are writing those laws have probably done the same thing.” A new study released this month supports the president’s concerns, finding that nearly half of all black males are arrested by the time they reach the age of 23.

What is even more surprising is that notoriously conservative Texas governor Rick Perry has also shown a recent liberalized attitude towards marijuana. Perry, speaking to the World Economic Forum in Switzerland, defended Colorado and Washington state’s vote to legalize the drug, saying it is a matter of states’ rights. Although Perry sidestepped questions of whether he supported the decriminalization of marijuana, he promoted Texas’ drug courts, which offer treatment instead of incarceration for non-violent offenders, as an example to other states and nations.

iStock_000006746569XSmall.jpgBy their very title, the role of law enforcement officials has traditionally been limited to enforcing the laws handed down by our popularly elected officials. However, a letter jointly written by several national law enforcement agencies makes it clear that the majority of law enforcement agents feel they should be able to determine what policies and laws to follow. The letter, written in response to U.S. Attorney General Eric Holder’s August announcement that the federal government would not challenge laws passed by Colorado and Washington legalizing recreational marijuana, was signed by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum. “It is unacceptable that the Department of Justice did not consult our organizations — whose members will be directly impacted — for meaningful input ahead of this important decision,” the letter read. “Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department’s conclusion on this matter. Simply ‘checking the box’ by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion.” Even though scientists have debunked the myth that marijuana is a gateway drug, the letter cited the gateway drug theory to oppose marijuana reform. Interestingly, the letter failed to address the fact that marijuana prohibition has not reduced marijuana usage among US residents, even while law enforcement has dramatically increased the number of jailed drug offenders.

One would think law enforcement officials would welcome eliminating a major revenue source for foreign and domestic organized criminals, however to the contrary, they have been staunch opponents of legalizing marijuana for personal or medicinal use because, while it remains contraband, marijuana is a major source of funding for law enforcement. Police departments are often able to keep a large portion of the assets they seize during drug raids, even if charges are never brought. And federal grants for drug war operations make up a sizable portion of local law enforcement funding. It is obvious that Law Enforcement has a financial incentive to maintain the “War on Drugs” and that they are willing to utilize unfounded data to support their anti-marijuana reform claims.

In addition, law enforcement officials seem to have entirely missed Holder’s emphasis on allowing Washington and Colorado a trial period during which the Justice Department will be very closely monitoring any negative effect to public safety, public health and other community interests. Coupled with Holder’s announcement was a memo issued to U.S. attorneys across the country by Deputy Attorney General James Cole. Cole’s letter stated that the administration’s decision rests on its expectation that the states would maintain strong and effective regulation and enforcement systems to address any threat to public safety and health.

iStock_000007992706XSmall.jpgA conservative political activist and mother, Jessica Peck, co-founded the Women’s Marijuana Movement (WMM), an organization dedicated to changing the harmful laws of marijuana prohibition. As a primary goal, the organization seeks to inform others that marijuana use is a much safer recreational activity than alcohol consumption. Members of WMM include parents driven in the conviction that marijuana reform will create a safer environment for their children and young professionals that have grown weary with a system that permits, and even encourages, dangerous use of alcohol but criminally punishes the comparatively less harmful usage of marijuana. Women are increasingly moving in favor of marijuana reform, overcoming a historical gender gap on the issue.

Historically, males have favored marijuana reform more so than females have. For example, in 2010, national Gallup poll revealed that 51 percent of males favored marijuana legalization while only 41 percent of females were in favor. Even in Marijuana-friendly states, in the recent past women have shown much less support, as seen by a 2011 poll of Washington State voters where 56 percent of males support legalization, but a significantly smaller 37 percent of females believed in marijuana legalization.

However, much of the gender gap has closed, if not disappeared, regarding marijuana reform support. A 2013 poll shows 48 percent of women nationally now support marijuana legalization, a notable increase from the 41 percent of support in 2010. Women’s support in favor of ending marijuana prohibition was pivotal to the marijuana legalization victories in Colorado and Washington State. In polls leading up to the Colorado vote to legalize, 49 percent of women voiced their support for Amendment 64. Confirming the drastic shift of marijuana views of women, exit polls of the Colorado marijuana vote showed 53 percent of women voters supported the legalization measure. This result was very different from the failed 2006 Colorado vote to legalize, where the majority of women voted in favor of maintaining marijuana prohibition. Joining Colorado’s 2012 marijuana victory, the majority of women voters in Washington State also voted favorably to legalize marijuana.

iStock_000001725183XSmall.jpgThe state of Texas takes the welfare of its children very seriously. This principle is evident when the Texas Legislature created section 481.122 of the Health and Safety Code. This section deals with people who “deliver” marijuana to a child, which is a person under the age of 18 (or a person enrolled in a public or private primary or secondary school). Now, people often confuse “delivery” with “sale”. They are not the same thing. Delivery is the legal term for giving or handing off something; in this case, an adult passing a joint to a 17 year old boy. Obviously, a sale is a transaction involving an exchange of goods for money. An adult does not need to receive cash back from the child to get in trouble; he just simply needs to give the child marijuana. If an adult does this, then he could be guilty of a second degree felony.

However, there are certain exceptions to these rules. Please note that these defenses apply only to this offense. In other words, if you have an affirmative defense for this offense, it does not mean that you cannot be charged with other crimes. If the person delivering the marijuana was a child when the crime was committed, he cannot be charged with a second degree felony under this section. Moreover, this section also provides that if the person delivering marijuana is under the age of 21, delivers an amount equal to or less than 3.5 grams, and did not receive any cash for the delivery (it was not a sale), he could not be charged with a crime under this section. These affirmative defenses are mostly framed to protect reckless teenagers from facing serious charges. In other words, this section did not want to criminalize children in high school who were giving their friends weed (though that is still an offense).

The State of Texas demands adults to be responsible and not deliver marijuana to children. Whatever your stance on marijuana may be, it is undeniable that children need heroes in today’s society. A person’s stance on marijuana should begin with education. There is a big difference between being a drug pusher and a drug advocate, for the former can be a second degree felony.

CYMERA_20130829_142314.jpgText messaging is one of the primary methods of modern communication. It is a relatively simple process that is convenient for both the sender and recipient. Even though text messaging is thought of as a private written conversation, text messaging is not as secure as you may believe. This is especially concerning if you may have some inappropriate text messages on your phone regarding marijuana consumption, which is a crime that police officers keenly investigate. Even though you may believe that your private conversations should be protected, the laws protecting your privacy are not as strong as you may believe they are.

Let’s begin with the basics of text messaging. A text message is a written communication that lands in four locations: it begins in your phone, is then sent to a short message center (SMC), which transfers the data to your service provider’s network, and ultimately lands in the recipient’s phone. Because the data lands in the hands of a third party, namely your phone service provider, it loses much of the privacy protections that a normal communication would have, like a written letter that is in an envelope in your desk.

There are two types of cell phone service providers: electronic communication services (ECS) and remote computing services (RCS). (Katharine M. O’Connor, 😮 Omg They Searched My Txts: Unraveling the Search and Seizure of Text Messages, 2010 U. Ill. L. Rev. 685) If your carrier is an ECS, then the government has to get a warrant to search any electronic communications within 180 days (after which the government only needs a subpoena). If your carrier is labeled a RCS, then the government does not need a warrant, but only needs a subpoena. For example, Verizon Wireless’ electronic communications are obtainable through a subpoena, but the electronic communications are only available for 10 days (request has to be made within this window).

iStock_000009135835_ExtraSmall.jpgThe state of Texas views marijuana differently than other controlled substances. Unlike other drugs, Texas wanted to eliminate trace cases involving marijuana possession and consumption. See generally Lejeune v. State, (Cr.App. 1976) 538 S.W.2d 775. If the State of Texas wants to prosecute someone for possessing marijuana, that person must possess a “usable amount”, which is supposedly more than a trace amount. See Tex. Health & Safety Code Ann. § 481.121(a). According to Texas law, “a person commits an offense (of possessing marijuana) if the person knowingly or intentionally possess a usable quantity of marijuana.” Id. The statute then divides up the possession offenses by weight. This article will focus on the first possible offense: possessing two ounces or less of marijuana, which is the Class B misdemeanor. However, it is not just any amount less than two ounces, the range is really between two ounces and a “usable amount”. So then we must ask: what is a usable amount?

The Texas Courts has a list of cases that have discussed this issue. This discussion has produced a few rules of law that should help define what a usable amount really is. First and foremost, the general idea is that a “usable amount” is the amount of marijuana a person needs to consume for the sole purpose of “getting high”. There is a hard number to begin with, which is 7.7 grams. In the case of Lejeune v. State, the Court held that 7.7 grams of marijuana can be transferred into a cigarette or put into a pipe for the purpose of consumption.

Nevertheless, 7.7 grams is still not a concrete number. There have been convictions involving unimaginably small amounts of marijuana. For example, in Parson v. State, the Texas Court of Criminal Appeals upheld a case where a person was arrested and convicted of possessing a usable amount of marijuana and the amount was 1.41 grams.

540317_marijuana.jpgMarijuana was first brought to America by settlers at Jamestown in 1611, and its use increased for centuries. By 1850, marijuana was added to the United States Pharmacopeia, an official recognition of its medicinal properties. But the turn of the 20th century brought with it a wave of prohibition.
In 1906 a federal law required marijuana to be labeled, the first major regulation on the plant. Only five years later, Massachusetts became the first state to outlaw it. In the following few years, all other states followed suit.
Even though states were cracking down, the federal government continued to grow marijuana for various scientific and medical uses. By 1918 the Department of Agriculture was growing and harvesting over 60,000 pounds per year. Demand for marijuana-based medications increased up through the 1930s, when marijuana extract was sold for use as an analgesic, an antispasmodic, a sedative, and even a remedy for asthma.
With marijuana use persisting despite universal prohibition, public outcry reached a fever pitch in 1936 with the release of the major Hollywood film “Reefer Madness,” dramatizing the commonly perceived horrors of marijuana.
The next step in regulating marijuana was through the enactment of the Marihuana Tax Act of 1937. The law imposed registration, reporting, and tax requirements on marijuana production, and levied criminal penalties for violators. The acceptable use of marijuana continued to decline and in 1942 it was removed from the United States pharmacopeia.
The biggest scientific breakthrough regarding marijuana came in 1964. That is when tetrahydrocannabinol, commonly known as THC, was first synthesized and identified as the primary psychoactive ingredient in marijuana. With this innovation, the scientific study of marijuana increased, albeit with stringent government oversight. In 1968, the University of Mississippi became the exclusive grower of marijuana for the federal government. Ole Miss cultivates up to 6.5 acres of marijuana plants for study and research.
The so-called War on Drugs began in 1970, when Congress introduced the Controlled Substance Act, the comprehensive federal anti-drug law. The Supreme Court determined that this law does not violate the Constitution in the case of Gonzales v. Raich. The Drug Enforcement Administration was established three years later. Although penalties for drug violators had never been higher, mandatory sentences for drug crimes, including marijuana, increased under the 1986 Anti-Drug Abuse Act.
After decades of stricter marijuana laws, the nation began to take a different approach. California was the first state to legalize medical marijuana when it did so in 1996. Currently, 18 different states and the District of Columbia permit the use of medical marijuana. Most recently, citizens in Colorado and Washington voted to legalize the recreational use of marijuana. This is undoubtedly one of the most significant legal developments in marijuana’s tumultuous history and signals America’s increasing understanding and acceptance of marijuana.
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