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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:

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Live Podcast Interview with Chris Legier @ Show 1002

Guest: Gilbert Garcia, Attorney Gilbert G. Garcia Law Firm

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Thumbnail image for Fotolia_62904321_Subscription_Monthly_M.jpgThe Drug Enforcement Administration and U.S. Attorneys have raided Cannabis dispensaries and sent people to prison, even though they complied with State laws. According to a report released by Americans for Safe Access, the DOJ has spent nearly $80 million each year — more than $200,000 per day — cracking down on medical Cannabis. The federal government continues to classify Cannabis, a plant, as presenting the greatest danger, alongside heroin and LSD, with no currently accepted medical use.

We are a union of sovereign states which delegated only certain, limited sovereignty to a central government. The U. S. Congress prohibits Cannabis through its misuse of the Commerce clause of the Constitution. The Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, declares: Congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Congress’ power “to regulate” commerce does not include the authority “to prohibit”. Congress does not possess the authority to ban goods merely because they cross state lines.

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iStock_000013348762_ExtraSmall.jpgA strong majority of Texans support marijuana legalization according to public policy polling, which revealed Texan support at 58%. With some grass roots indications that Texas is ready to legalize marijuana, many question how legalization could affect the overall public heath of Texas residents. With alcohol abuse and its devastating consequences remaining a major issue in Texas, some people worry marijuana could add to the problem. Researchers have long been trying to figure out whether marijuana legalization would lead to more alcohol consumption (if the drugs are complementary) or if legalization would actually reduce alcohol use (if marijuana is a substitute for alcohol). Finally, there seems to be an answer. It is thought that marijuana use usually replaces alcohol use, and since marijuana is far safer than alcohol, marijuana legalization would lead to a net gain in public health benefits due to less alcohol consumption.

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iStock_000020746027_ExtraSmall.jpgIn December of 2013, a 54-year-old Texas woman was traveling back from spending the Christmas holiday with a family friend in Ciudad Juarez, Mexico when she was stopped by federal agents at the Cordova Bridge border crossing in El Paso, Texas. As the unnamed woman was passing through the checkpoint, a police drug dog allegedly alerted on her, prompting U.S. Customs and Border Protection agents to select her for additional screening. The woman was quickly stripped searched and forced to undergo several body cavity searches at the crossing checkpoint, but the agents failed to turn up absolutely any evidence of drugs.

Regardless of this fact, the agents were determined to find some evidence of drugs and proceeded to transport the woman, handcuffed and against her will, to the University Medical Center of El Paso. At the hospital, doctors subjected the woman to an observed bowel movement, an expensive total body CT scan and numerous body cavity probes in a desperate attempt to find some trace of drugs. However, after enduring over six hours of demeaning and highly invasive searches, the agents were forced to admit the woman had committed no crime and released her with no charges. However, to add insult to injury, the woman soon received a $5,000 bill from the hospital for the exams she was wrongly forced to undergo.

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iStock_000009135835_ExtraSmall.jpgSurpassing all other countries in the world on modernization of marijuana laws, legislators in Uruguay passed a bill in December of 2013 to legalize and regulate marijuana nation-wide. Uruguay’s president voiced strong support for the bill, noting a legalized market would reduce illicit drug trade, and signed the bill into law. Uruguayans over the age of 18 may legally grow six marijuana plants, form smoking clubs of 15-45 members with a production limit of 99 plants a year, and buy up to 40 grams or 1.4 ounces each month from government-regulated retail shops. See Uruguay’s New Marijuana Laws here.

Other Latin American countries are not far behind in the movement to reform drug laws away from ineffective criminalization and toward sensible regulations. In Ecuador, lawmakers have debated a bill that would lessen the penalties associated with marijuana. The head of Argentina’s counter-narcotics agency, Juan Carlos Molina, supports debating whether Argentina should follow its neighbor Uruguay’s example.

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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_000001725183XSmall.jpgA recent report by the Partnership at Drug Free, formerly known as the Partnership for a Drug Free America, found a solid majority of those polled by the organization itself, 52 percent, favor marijuana decriminalization and a vast majority, 70 percent, favor medical marijuana. The Partnership interviewed 1,603 adults. The majority of these adults (1,200) are parents of children who are between 10 and 19 years old. The report found 72 percent of mothers and 67 percent of fathers support medical marijuana.

One may be surprised that an organization focused on combating teenage drug use is publicizing report results showing favorable parental views on marijuana law reform. A deeper look into the results of marijuana law reform reveals that marijuana reform could help combat teenage marijuana use and thus align with the goals of the Partnership. For example, since Colorado passed marijuana laws, marijuana usage among Colorado teenagers has gone down. Colorado, probably the most marijuana friendly state in the nation, has a teenage marijuana use rate that is below the national average. Despite the beliefs of marijuana reform opponents that claim pro-marijuana laws will increase adolescent marijuana use, a recent report revealed there is no visible link between states legalizing medical marijuana and children increasing marijuana consumption.

The Partnership has had a noticeable history of focusing especially on the dangers of marijuana, even though the harms caused by alcohol, tobacco, and pharmaceuticals far outweigh the harms of marijuana use. Past funding sources of the Partnership may explain the lack of particular focus on drugs more destructive than marijuana. According to Fairness and Accuracy in Reporting (FAIR), the Partnership has accepted funding from numerous tobacco, alcohol, and pharmaceutical companies. These companies include the Budweiser, Michelob, Busch Beer Company: Anheuser Busch, the Marlboro and Virginia Slims company: Philip Morris, the Camel, Salem, Winston cigarettes company: R.J. Reynolds, as well as firms associated with pharmaceuticals like Bristol Meyers-Squibb, Merck & Company, and Proctor & Gamble. The Partnership reportedly ceased accepting alcohol and tobacco funding, but continues to receive support from major pharmaceutical firms, despite the fact that pharmaceutical drugs cause the most overdose deaths compared to all other drugs.

CYMERA_20130829_142314.jpgAn investigation by Reuters revealed that a secretive unit of the Drug Enforcement Administration (DEA) is using information gathered by Intelligence Agencies to facilitate criminal investigations of US residents. The information gathered by intelligence agencies, including the NSA, CIA, and Department of Homeland Security, are supposed to be used for national security and counter-terrorism purposes. Instead, the DEA unit is using intelligence information to go after individuals who are not connected to terrorism. This DEA unit, named the Special Operations Division (SOD) was created in 1994 to target Latin American drug cartels, but since then has warped into a domestic spying operation utilizing unconstitutional powers and procedures.

Examples of the unconstitutional procedures used by SOD include “parallel construction.” The practice of “parallel construction” was exposed by documents reviewed by Reuters. “Parallel construction” is where law enforcement officers, once they begin an investigation based on information from SOD, reconstruct the investigative trail to cover up the information’s origins, and thus deceive the defendant or the defendant’s defense attorney, along with prosecutors and judges involved in the criminal case. The documents also reveal that federal agents and local police are specifically instructed to “omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony.” Experts, including Harvard law professor and former federal judge Nancy Gertner, believe that this practice violates a defendant’s constitutional right to a fair trial. If the defendant or the defendant’s defense attorney are not aware of how the investigation began, they cannot know how best to explore potential sources of exculpatory evidence – information that may reveal entrapment, mistakes or biased witnesses. Speaking to Reuters, former federal prosecutor Henry E. Hockeimer Jr. criticized SOD’s powers, saying “you can’t game the system, you can’t create this subterfuge. These are drug crimes, not national security cases.”

US law enforcement has imprisoned millions of people on drug-war convictions over the last 20 years. Due to their authorized yet unconstitutional deception caused by “parallel construction,” the number of those drug cases which resulted from evidence collected by spy agencies will never be known. The Reuters article, which broke this story, quotes DEA officials as saying that the DEA has utilized the “parallel construction” procedure “virtually every day since the 1990s.” The amount of phone data the DEA has collected now surpasses the amount of data collected by the National Security Agency (NSA).

iStock_000009135835_ExtraSmall.jpgIn Texas, Marijuana is an illegal substance that is subject to forfeiture by the state. While this may be of no surprise, you may not be familiar with the forfeiture process and how it works. The government has different modes and methods of dealing with controlled substances. Some of these processes do not even require a court order, they occur automatically due to statutory regulation. This article discusses and describes the process the government implements after it seizes controlled substances, such as marijuana.

Let’s look at a hypothetical traffic stop situation. A driver gets pulled over and the officer looks in his back seat and sees a sizable amount of marijuana. After the driver gets arrested, the officer seizes the marijuana and seals it in an evidence bag. It is at this point that the seized marijuana is put into the custody of the police. This entire process, from seizure, to storage, record keeping, court, and then finally destruction is called the “Chain of Custody” (COC). There are very detailed and strict rules regulating how the police can handle evidence while it is in their custody. If they break one of these rules, the “chain” of custody is broken and the compromised evidence becomes subject to objection and scrutiny.

Assuming the COC is maintained, the case will end with a verdict. The seized marijuana is then subject to “summary destruction”. Tex. Health & Safety Code Ann. § 481.154 . Summary destruction is a process that differs among departments, but there are three certain rules that process must follow: “(1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction.” Id. After the seized marijuana is destroyed, “a document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.” Id. With this document, the seized marijuana is recorded and properly disposed of per statute.