Dallas Criminal Defense Lawyer Blog

I've discovered there is an inverse relationship between blogging and legal work. I'm grateful to be busy in this economy, but it's giving me blog fail. What I do have time for is another roundup!!

On Sotomayor-
First, I'll admit I have not done an exhaustive study of her opinions. I'm only familiar with the cases that have been highlighted by the media/blogosphere. My scant review of her track record indicates she is less of a liberal than a knee jerk statist. She seems to consistently side with the government over the individual. Whether it's cops (even really bad cops), eminent domain, affirmative actions programs, et al, the winner is the state.

The debate over strict constructionism vs. legislating from the bench is talk radio nonsense. Instead we should be concerned with a nominee's view on what protection, if any, the Constitution provides the individual. If Soto's case, it seems the individual is the means to the ends of the current political majority.

It's a strange day when ever the "liberal" SCOTUS nominee hates criminal defendants. Can we just give Ginsberg an extra vote?

Acetaminophen will kill you! FDA to the rescue!
We are all children of the wise omnipotent federal government. Lest we forget how important they are, a fresh crisis will be invited to remind us.Today, it's Tylenol. The media is falling over themselves to report on how dangerous acetaminophen is. I've taken a few hundred doses of aceta in my life, I'm still here, liver and all.

There are roughly 300,000,000 Americans. Last year, about 500 died from taking too much Tylenol. What does that tell you? That we need new laws and restrictions on Tylenol use? Or that 299,999,500 Americans understand how to use pain relievers safely and deserve the simple freedom of buying Tylenol without a prescription, and/or mixed with Nyquil?

Let's magnify the idiocy- last year acetaminophen killed 500, pot killed zero. Both provide pain relief. Moving on.

Payday loans and the Hot Check Hustle
I recently blogged about the unholy alliance between DA's and local business.

Today, I heard that the payday lenders have picked up on the fact they have an on call law enforcement debt collector. Allegedly payday loan companies are threatening to send bounced checks to local DA's offices unless you pay the check and some hefty "fees." That is, you get the loan, sign a post dated check, and if the check comes back your loan shark/pay day lender threatens to call the DA. This the kind of behavior we encourage when we make our prosecutors into human repo men and turn the county jail into debtor's prison.

Threatening jail time to collect a debt violates our fair debt collection act (ironically, actually using the DA to arrest the debtor doesn't).

I had another two court day; morning in Dallas, and afternoon in Kaufman. I had a few passes and an open plea in Dallas. I saw a few friends at the courthouse one of whom pointed out a MADD courthouse runner.

MADD sends spies to the courthouse to monitor the DWI cases. I've never actually seen one until today. He was an earnest looking young man armed with a notebook. I wonder who he reports to and what he is reporting? If I see him again I'll ask.

On my open plea- I had a DWI case (don't tell MADD), the state made a plea offer but we chose to plead open to the judge.

That is, my client pled guilty and asked the judge to set punishment. It worked out well and we received reasonable terms.

Judges are an important safety valve on the criminal justice system. If the DA is worried about offending MADD and won't make a reasonable plea offer, sometimes you need a judge to dispense justice.

How much is weed in Terrell, Texas?
I arrived in Kaufman just in time for a 1:30 setting on a felony case. There was a hearing underway in which the defendant had pled for 8 years TDC and was asking for shock probation. Shock probation is where you serve a little TDC jail time but get out on probation. The idea being that the "shock" of jail will scare you straight.

The State wanted the judge to deny the motion and called a narcotics officer to the stand. A typical strategy in a drug sentencing is for the State to highlight the monetary value of the transaction. As an objectivist this has never made sense to me. Voluntary transactions are inherently moral. This defendant was helping to meet the perpetual demand of our nation's millions of cannabis consumers. If he was selling cigarettes or Jegermeister there wouldn't be an issue. Such is prohibition.

The narcotics officer was asked how much weed costs. He responded that in Terrell, Texas his last buy was $250 for a quarter pound. He also said a full pound may not be $1000 (economies of scale happen).

Here is what is amazing about supply and demand. Terrell is a small town of 13,000. You can't buy sushi in Terrell, but every day of the year you can buy pot, crack, meth etc. Unlike the doltish marijuana laws of our state, the laws of supply and demand are always obeyed.

The officer went on to discuss the fundamentals of the marijuana market. Marijuana is bought in El Paso and shipped east (Dallas, Atlanta etc). The border price will rise or fall depending on border security and whether the buyer has a decent connect. The retail price depends on the risk involved, the number of mules required etc.

So what happened to this defendant? For the "crime" of possessing 80 pounds of a verboten plant he is serving 8 years in TDC at taxpayer expense.

What did this prosecution accomplish? We could ask the narcotics officer what happens when you reduce supply and demand stays the same. Somewhere 80 pounds of marijuana did not arrive, the local price will increase, and supply will follow.

Medical Marijuana Patient Protection Act
No issue better highlights the moral bankruptcy of law enforcement than the federal prosecution of state licensed and legal medical marijuana providers. Since SCOTUS long ago nuetered the 9th and 10th Amendment we now require a federal law that states the obvious; the feds should not prosecute conduct that is legal under state law.

To that end the Medical Marijuana Patient Protection Act, sponsored by Barney Frank and Ron Paul et al, would prevent the feds from prosecuting state licensed and legal medical marijuana providers. I've already contacted my reps. Click here to voice your support for this compassionate common sense measure.

For every action, there is an equal and opposite political reaction
Hot on the heels on the Medical Marijuana Patient Protection Act comes a proposal from village idiot/US Rep Mark Kirk of Illinois (R) as in R you surprised this is a republican idea?))

Mark believes the marijuana today is much stronger than the stuff his friends, George Bush, Barack Obama, Newt Gingrich and Al Gore smoked back in the day. Instead of say, legalizing marijuana and regulating THC content, or requiring labels with the THC "proof" just like we do for alcohol, Mark's proposes a 25 year minimum sentence for "drug dealers" with "kush" marijuana.

Great idea. Just what our country needs during this recession, more marijuana defendants in federal prison with mandatory 1/4 century sentences. Mark should get his Mensa application in before this sudden burst of genius dissappears.

Mark's website bills him as pro-personal responsibility. I've never understood how personal responsibility equates to throwing adults in jail for a quarter century for possessing a plant. What is responsible about blind obedience to tyranny? That's not responsibility, that obedience to your government masters.

Polka Fest 09-
This weekend is the annual Ennis Polka Festival. I'll be at the KJT (Katolická Jednota Texaská) Saturday night (around 8ish) to see the Czechaholics and Brave Combo.

Come to Ennis and experience this one of a kind polkapalooza. Most of the polka dances can be accomplished with a slight variation of the country two step (quick, quick, slow, or something like that). No problem for most people to pick up. However, I largely rely on my wife to count the steps out loud while we are dancing. If NHTSA ever adopts the two step as a field sobriety test I"ll quit driving because I would fail every time.

DMN on DWI-
I'm not surprised that the various DMN "blogs" take a less objective journalism tone and adopt the informal blogger style. However, this DWI blood draw post seems to have been written by MADD. I've never seen such enthusiasm for blood tyranny before outside of MADD.

If you get pulled over for drunken driving this Memorial Day weekend, don't bother refusing to blow. Dallas police are gonna get a warrant for bulletproof evidence - your alcohol-laced blood. And they'll take it whether you like it or not.

First, "don't bother refusing to blow" is some pretty blunt legal advise. The decision to blow or not is complicated with legal and factual considerations. The kind of decision we used to allow defendants to make with counsel.

For example, in deciding to blow or not you should be aware that we still don't know what kind of software the Texas breath machine uses. Should we believe that our breath machine software is any less flawed than the Alcotest? Certain medical conditions can affect a breath score, as well as breath temperature. Should you blow or not? Depends, ask a lawyer, not a journalist.

Second, blood is only "bulletproof evidence" if you don't know anything about blood testing, or evidence. Blood tests are complicated and require precision in every step or the results will be corrupted. Precise scientific evidence and law enforcement don't always mix.

Also, just because a blood result is over .08 does not mean that the driver was over .08 when driving. We allow the make believe science of retrograde extrapolation to make that leap, but it's far from "bulletproof."

Finally, "take your blood whether you like it or not"? That sentence says a lot about the current state of DWI hysteria. We've gone GITMO on DWI suspects. You have no rights, and DPD has their needles ready.

Pot leads to crack and death says FBI director
Forcing our bureaucrats to advocate such ridiculous positions in public makes us all look bad. I'm sure this Robert Mueller guy is embarrassed and having to promote this idiocy. We should legalize pot if for no other reason than to end the public humiliation of our bureaucrats.

This must be some kind of secret federal government hazing ritual. Mr. Mueller is the pledge and before he gets a cabinet level position he has to get "punk'd" in front of Congress to show his loyalty. That makes more sense than his idea that we should treat pot like crack.

Thank you sir, may I have another!

I have interacted with hundreds of cannabis consumers. First as a public defender, then a prosecutor, and finally as a private defense attorney. Much of the debate over cannabis prohibition is about the plant and the effects of smoking said plant. Let me share my experience with the more important aspect, the people we arrest and prosecute for marihuana possession.

Talking about such a large population of defendants without delving into broad stereotypes is impossible. There is probably a neo nazi terrorist serial killer somewhere who loved marijuana. I've never met such a person but probability guarantees at least a few such cases. Instead of individuals let us paint in broad strokes, starting with young adults.

I believe that children are the future, put them on probation and make them pee and pay
It never ceases to amaze me that the group most often arrested, prosecuted, probated, and incarcerated for marijuana possession is the same group that gets the most government anticannabis propaganda. I would guesstimate (and NORML confirms) that at least 1/2 of the possession cases involve defendants under 25.

It seems that the above the influence/pushing back/ondcp nonsense is being rejected by the target audience.

Why do we tolerate the arrest and prosecution of our young people for marijuana possession? Bill Clinton, Al Gore, George W, and President Obama all used marijuana in their younger days. They were lucky enough to avoid law enforcement and went on to reach our nation's highest political offices.

It is absurd that we rely on the failure of law enforcement to protect our future leaders from the wrath of the criminal justice system. Statistically this approach makes sense. I would guess that 99.9% of all marijuana usage events occur without police intervention.

However, those who do get caught are sacrificed to the idol of prohibition and shackled with a permanent criminal record. Our young adults deserve better than this cruel reverse lottery.

Side note on probation/criminal records- Texas does not allow for the expunction of probation cases. Even deferred adjudication probation will leave a permanent arrest record. We are sabotaging the future of our young adults and branding them criminals.

Young adults make awful criminal defendants. They routinely confess that there is a joint in the car, or allow the police to search, or otherwise assist law enforcement in their own persecution. Fish in a barrel.

I will say that the internet age and the wealth of advise on handling police encounters is starting to make a difference, but not enough. Schools should teach police encounter self defense right after the Just Say No DARE class.

This group can also struggle with the demands of probation. Reporting, fines, fees, community service, drug education classes, drug testing, no drinking, don't go to bars, keep a job, don't leave the state, inter alia. Can you think of a worse time to be constantly monitored by the government than your early 20s? I'm surprised anyone under 25 finishes probation.

Older Users
I've represented more than a few older cannabis consumers. A lot of adults smoke pot, and not just burned out hippie types. According to our government the hard working mortgage paying career climbing pot smoker doesn't exist. Just like John Walter's "there are not pot smokers in jail" unicorn, this creature is also real. Don't believe me? Here is a list from the Agitator of successful pot smokers.

Many adults believe that smoking pot can be healthier than drinking or smoking cigarettes. They have made an informed decision to pursue cannabis for recreation instead of the government approved alternatives. I've had defendants tell me they never drink alcohol because of the health effects. Marijuana is their recreational choice.

The government establishment rejects this heresy and continues to waste millions of your tax dollars defending their orthodoxy. History has shown that change is possible, if not certain.. It took a while but eventually heliocentrism caught on everywhere, even in Texas.

Medical Marijuana Patients
While not a substantial population of defendants (our lege has failed to lead on MM legislation) I have seen those seeking relief from chronic and/or terminal illness. Texas' first successful cannabis necessity defense was last year in Amarillo. There is no certainty that defense would work in all MM cases (it's largely up the judge to allow MM evidence) and many MM patients never go to trial.

The stress of coming to court/sitting through trial, the cost of trial, and the risk of jail are so great that many MM cases plea bargain.

Rather than just debate the merits of legalizing a plant, we should also ask why we continue to arrest our friends, neighbors, adult children, and the infirm among us for the "crime" of cannabis possession. If cruel and unusual has any meaning, the arbitrary life altering arrest of thousands of Texans each year should meet that definition.

Did you know the police are allowed to lie to you? It's true. The police can make up facts out of whole cloth and present them as fact.

What if the police wanted you to open the door to your house so they could peek inside? One would think that cops must obtain a warrant before entering a private residence. Instead, cops can lie about your car being robbed so you open the door for them.

This brings us to our case of the day. Stern vs. State No. 05-08-00553-CR

Facts-
Plano PD received an anonymous call about the odor of marijuana coming from an apartment. Having solved all real crime in the area, Plano PD sends over a few officers to investigate. The cops have no warrant, no probable cause or emergency required to gain entrance. Instead Plano PD is hoping those inside the apartment will open the door so they can see the drugs in "plain view." (If a cop sees drugs he can come in and arrest without a warrant.)

A Plano PD cop puts covers the peephole in the door with his finger and then bangs on the door yelling "Dude someone is breaking into your car?" Plano police invent a malum in se crime so they can arrest for a malum prohibitum offense. A monument to all that is wrong with cannabis prohibition.

What happens next? The defendant quickly opens the door to investigate the fake car break in.

From the opinion-
"The aggressive action startled both uniformed officers. Endsley stated he was not expecting somebody to come running up to him like he wanted to fight. When appellant saw the officers, he took a step back into the apartment while the door was still open. At this point the officers described the odor as “a stronger odor of marihuana” and as “freshly burning marihuana” coming from inside the apartment. While the door was open, Endsley saw another person, identified as Bach, sitting on the couch. When Bach saw the officers, “it looked like he was rummaging through something at the time by the-on the couch.” The officers could not see Bach's hands. Bodacki stepped onto the threshold of the door to prevent appellant from closing the door. Bodacki saw beer cans and a marihuana “bong” in plain sight inside the apartment. The officers asked the two persons not to move."

The "aggressive action" startled the police? These cops cover the peephole, bang on the door, and then tell Stern his car is being burglarized and the cops act surprised when the defendant comes running outside to investigate? Are these cops also startled when the sun comes up each morning?

Issue- Can the cops fake a car burglary, cover up your door peephole, prevent you from closing the door, then peak inside your house, all without a warrant?

Holding- Of course, this is a drug search. How do you think we bust pot smokers?

The record reflects and the trial court found the officers entered believing officer safety and prevention of the destruction of evidence were paramount. Under these circumstances, we hold the officers had sufficient probable cause to enter the apartment. We next examine the issue of whether exigent circumstances existed to support a warrantless search of the apartment. When the officers first arrived at the apartment complex, they had information that there was a marihuana problem at a specific apartment. They corroborated this information when they arrived at the apartment and smelled marihuana emanating from the apartment doorway and then detected a stronger smell after appellant opened the front door. The combination of the odor of freshly burning marihuana, the fact it became quiet a few moments after the officers knocked, the delay in responding to the knock on the front door, Bach's furtive movements on the couch with his hands out of the officers' sight, and the need to determine that appellant and any other occupant in the apartment did not have a weapon and were not destroying evidence provided exigent circumstances for the officers to enter the apartment to conduct a protective sweep to secure the scene for officer safety and to prevent the destruction of evidence.

"Officer safety" has become a catch all term for drug searches. Since anyone could potentially be armed the cops are allowed to violate your rights if they just state that they thought you could be armed. No one wants cops to get hurt so our appellate courts allow all sorts of nonsense in the name of officer safety. We allow law enforcement to create these frightening home invasion situations and then when the residents act scared, nervous, or move in any manner the cops have further justification to search.

You know what would really enhance "officer safety"? If we quit sending armed police squads into private residences to search for pot. There should be a "citizen's safety" law to exclude these searches. Oh wait, that was the 4th amendment. Never mind.

Finally, none of this would have been necessary if Stern and his buddy had followed the "smoke pot and not get caught" rules from NORML. Never let your apartment smell like burnt marijuana, it's a bad idea. Your neighbor might be a narc and the Plano PD might stage a car jacking to gain entrance.

Good people from all walks of life use marijuana. Good people from all walks of life also get arrested for possession of marijuana. Until we correct the tragic failure of cannabis prohibition pot smokers must exercise self defense and common sense to avoid the wrath of law enforcement.

To that end here is a cartoon from NORML. It's more common sense than legal advise. Let me add one thing to this cartoon; never tell the police there is pot in your car. If cops ask about drugs, ask for a lawyer. Pot smokers are way too honest and trusting (unlike those who arrest pot smokers).

For the first time in my legal career I completed a county courthouse trifecta. I made an appearance in 3 different county courthouses in one day. This made me wonder what the record is for most county courthouses visited in a day? It can't be more than 4. All this travel has sapped my blogging energy. Instead of talking about the crazed Dallas ER cop or Sharon Keller, I'll offer a travelogue.

Collin County
Friday morning, I had a plea in Collin County. I live in Ennis (home of Polka Fest) which is about 65 miles away. Fog and speed traps slowed traffic on I-45. Traffic actual improved once I hit 75. I lamented over the suburban sprawl big box strip mall sameness that is southern Collin County and arrived in McKinney at 9:15.

I entered the courtroom and approached the ADA to discuss the plea deal we had worked out and..... the file wasn't in the courtroom. The ADA quickly dispatched an assistant to recover said file so we could finalize justice in this case.

"Are you an attorney?"
While waiting patiently in the courtroom the young man next to me inquired into my vocation. "Are you an attorney?"

I know that some lawyers dread the AYAA line. Personally, I don't mind helping pro se defendants avoid making horrible life altering decisions. My usual advise is- go hire a defense attorney (or ask for court appointed counsel), don't tell the ADA anything about your case, and don't accept a plea bargain without counsel.

After affirming that I was indeed a defense lawyer this defendant asked "Do you handle marijuana cases?" This had some personal comedic value. I skipped the opportunity to explain my marijuana defense credentials or direct this defendant to my numerous blog posts on the subject. Instead, I answered succinctly in the affirmative.

This defendant had been denied court appointed counsel and wanted to present two defenses to the ADA, an equity/de minimus argument and actual innocence. I explained that the Collin County DA has a less than progressive view towards pot cases. By that time my file had been retrieved so I told this defendant to call Hunter Biederman.

My plea was quickly finalized and I was on my way to Dallas.

Dallas
I arrived in Dallas at 11:00. I needed to pass a case, visit with an ADA on another case, and fix an earlier judgment that contained an error. This was largely uneventful.

To maximize my efforts I used the escalators. I usually employ the stairs at the Crowley center in an attempt to work some semblance of exercise into my daily routine. If you ever see me ordering a DWI video or visiting the special crimes unit (both are on the 11th floor) and I appear near cardiac arrest, this is why.

Sushi Sapporro Closed?
Around noon I emerged victorious ready to eat lunch at my favorite sushi lunch buffet, Sushi Sapporro on Oak Lawn. To my great shock and disappointment there was a sign on the door that the restaurant had violated their lease terms and was closed. Lunch fail.

Kaufman
Finally, I had to go to Kaufman to visit the DA on an upcoming DWI suppression (this should be an obstruction) and pick up some documents from the district clerk. Finally, I returned to my office, answered a dozen or so emails, returned some phone calls, and met with a potential client, who became an actual client.

My day was finished and I actually left work early, around 4:30 pm.

St. Patrick's, Old 97's, and Greenville
I spent my first St. Patty's on Greenville. My wife and a few friends attended the Old 97's concert at Energy Square (a parking lot on Greenville and University.)

Our group missed the parade, arriving at 3pm. We did catch the last of the parade goers leaving for their cars. I only saw one person throw up, and one person arrested. For all the complaints about the Greenville parade it seemed the vast majority was well behaved. There was an overwhelming police presence without much criminal presence. The level of law enforcement boredom approached TSA levels.

As for the show, at first I positioned myself close to the stage to rock with the real fans. I quickly bailed on that idea. The speaker placement made that area a distorted mess acoustically, like standing behind a jet engine. The further back we stood, the better the music sounded. We finally found a sweet spot at a table in front of the portable Hooters. The set list was predictably great and the band was in top form. A little cold weather kept the large crowds away, which to me is a plus. Overall, a great St. Patty's.

My only question- why were so many people wearing kilts? I thought kilts were Scottish.

My "friend" is 20 and his girlfriend is 17, is it legal for them to ___?
My earlier post on the age of consent in Texas has generated more than a few emails/comments asking if you or your "friend" will be in trouble if you date or know your romantic partner biblically etc. Most want to know if the "Romeo and Juliet" defense will save them from the clink. The volume of inquires makes me wonder if our public school's "just say no" abstinence only education is reaching every student.

First, I can't answer your question. That's legal advise, not something I can shoot off in a quick email or post in the comments section.

Second, even if the act of coitus is not criminal there are other laws you could be violating. Most people have never heard of the crime of "Enticting a Child". EAC sounds like a child molester sneaking children into his van. It's not.

EAC applies in any situation that "interferes" with child custody. For example- Your romantic partner's parents can call the police if you take your boy/girlfriend anywhere without their permission. Condoms may prevent STDs, but they won't stop DPD from arresting you.

Ron Paul vs. Stephen Baldwin- On Marijuana
If only cannabis prohibition apologists realized they all sound as ridiculous as Stephen. Is there even a debate left to be had on legalization?

Recently, I was appointed to a misdemeanor pot case in Kaufman. Yet another reason you should support HB 902, so you can quit paying me to fight this nonsense. The appointment sheet listed the charge as possession of marijuana under 2 ounces; a class B misdemeanor and that bail was set at $100,000.

Convinced this was a typo, I called the jail to confirm. It's true. This defendant has no holds, no blue warrants, no probation revocation, no other charges and the magistrate set a $100,000 bail for a joint.

One of two things is at play here. Either the defendant royally pissed off the magistrate, or he has some prior criminal history. The former is a fairly rare circumstance. As to the latter. Does arrest for non violent meaningless victimless "crime" + criminal history= trapped in jail with a ridiculously high bond. Is that an equation for justice?

When bail is set there has no been no trial, no hearing, no day in court. Innocent people are arrested every day. Bail is supposed to insure that a defendant will return to court. More often, it's used to punish defendants before a case is filed. Another "beat the rap, not the ride" element of the criminal justice system.

So now I have to call the DA to work out an agreed bail reduction, or file a Writ and have a hearing to get bond lowered. Either way, it's your tax dollars wasted on another pot case.

Over 60,000 thousand Texans were arrested last year for marijuana possession. How should we punish our fellow Texans for the "crime" of pot possession?

Support House Bill 902-
Currently possession of any usable amount of marijuana is at least a class b misdemeanor (2 ounces or less), the same level of offense as DWI. 902 would make possession of less than one ounce of pot a class c misdemeanor, basically a traffic ticket. Even if you disagree with the legalization of marijuana, you should support 902.

Every prosecution is a choice (opportunity costs are real) of how to spend your tax dollars. 902 forces prosecutor and police to quit wasting time on college kids with weed and move on to more important cases.

The vast majority (I would estimate at least 90%) of all marijuana arrests and prosecutions are for simple class B possession. It's not hard to catch marijuana consumers. They can be overly honest about having a joint in their console. Many also fall victim to police consent searches.

Misdemeanor dockets are clogged with these cases. Police officers waste hours investigating, arresting, and booking pot defendants. DPS drug labs are flooded with half burnt roaches that require expensive time consuming testing.

Busting pot users isn't cheap, and provides no public safety benefit. The less time officers, ADAs, and DPS lab techs spend on marijuana enforcement, the more time they can spend on real crime.

It's time to end the inanity. Call, write, fax, or email your rep today and ask them to support 902. Don't know who your state rep is? Too lazy to write an original letter? NORML has done all the work for you, just click here.

The medical marijuana bill is making it's way through the Texas house. HB 164 needs your help to survive.

Medical marijuana is inevitable. The only question remaining is when a MM bill will pass? You may think it is too soon, and that this isn't the right group of politicians.

I disagree, above all, politicians want to be reelected. Make it your duty to let them know where you stand. Call, email, fax, or write your rep and tell them to support HB 164. Even if Rick Perry vetoes this bill the further HR 164 gets, the easier it will be to pass in the future.

I've seen the prosecution of MM patients firsthand. It is an abhorrent practice that degrades our justice system. We can work to change the system, or punt our obligation to future generations.

Finally, if you are a Texas MM patient who wants to be heard call 512-585-3846 to speak with Texas NORML.

Here is an email I received today from Texas NORML director Josh Schimberg.

Hey all you Texas NORML supporters!

We have an exciting update on HB 164, the medical marijuana bill currently working its way through the Texas Legislature! And, we have special requests for taking action on this issue.

On February 12, 2009, HB 164 was officially assigned to the Public Health Committee in the Texas House of Representatives. The most exciting part of this committee assignment is that the bill's author, Rep. Elliott Naishtat (Austin), has been assigned to be Vice Chair of the committee! Also, HB 164 has picked up a co-author, Rep. Lon Burnam (Ft. Worth).

Below is a list of the members of the Public Health Committee, with areas they represent and links to contact them. If you need any help composing a letter of correspondence to your representative, please do not hesitate to contact us...

Committee Members:

*IF YOU, OR SOMEONE YOU KNOW, LIVE IN ANY OF THESE REPRESENTATIVES' DISTRICTS, PLEASE CONTACT THEM AND RESPECTFULLY REQUEST THAT THEY SUPPORT, AND VOTE FOR, HB 164.*

* Rep. Garnet Coleman, Dist. 147 (SW Houston/Harris County)
* Rep. John E. Davis, Dist. 129 (S/SE Harris County/Pasadena)
* Rep. Veronica Gonzales, Dist. 41 (McAllen/Palmhurst)
* Rep. Chuck Hopson, Dist. 11 (Jacksonville/Crockett/Henderson/Carthage)
* Rep. Susan King, Dist. 71 (Abilene/Sweetwater)
* Rep. Jodie Laubenberg, Dist. 89 (Rockwall/Farmersville/Melissa)
* Rep. Jim McReynolds, Dist. 12 (Lufkin/Coldspring/Woodville)
* Rep. Vicki Truitt, Dist. 98 (Southlake/Ft. Worth/Grapevine)
* Rep. John Zerwas, Dist. 28 (Simonton/Hempstead/El Campo/Wharton)

Even if you do not live in one of these districts, you can still contact members of the Public Health Committee to ask for their support on this issue.

You can also contact your own representative to request a co-sponsor of the bill.

Also, it would be very helpful for everyone to contact their State Senator and request that a similar bill be introduced in the Senate...

Thank you for taking action on this bill!

Cannabem Liberemus!
Josh Schimberg
Director
Texas NORML
http://www.texasnorml.org
http://www.myspace.com/texasnorml

The greatest Olympian of this decade is losing endorsement deals over cannabis use. I have a paltry ad budget, but I am willing to dedicate 100% of those funds to hiring Michael Phelps. Perhaps I could hire Michael to swim the Trinity with a Robert Guest.com speedo.

Michael, you are still an American hero. You have nothing to apologize for. Millions of Americans, including the current and two former Presidents, have partaken in the recreational use of cannabis.

I'm proud to defend cannabis consumers, and I would be proud to extend an endorsement deal to someone with firsthand knowledge of the illogical persecution they face. Shame on the bureaucratic fools who would exploit this situation for political gain. Shame on companies like Kelloggs who would abandon you. And shame on the asshat who sold your photo to the tabloids.

The continuing tragedy of cannabis prohibition can benefit from comedic commentary. On that note, here is a "really?" bit by Seth Meyers.

The debate over morality and the law is one familiar to any law student. Every 1L is taught the difference between malum in se and malum prohibitum crimes. The former are crimes that are evil (murder), the latter are crimes that are wrong because the government says so (gambling, pot, expired registration etc).

A recent blawg debate asked "Is it immoral to break the law?" To any person who isn't paid to convict the answer is an obvious no. Laws are written by politicians, not exactly the moral arbiters of our time. Only the most tortured definition of morality would include "anything the majority passes a law against."

What is not often discussed is the morality of enforcing the law. When is it morally wrong to arrest and prosecute someone for illegal behavior? Prosecutorial apologists would argue that laws represent the morality of the majority and therefore the enforcement can't be immoral.

Let me beg to differ. There is a great chasm between the prosecution of consensual crimes and morality. The best (or worst) example is the arrest and prosecution of medical marijuana patients.

Each government actor is culpable, from the LEO who arrests the infirm, to the prosecutor who files charges. I've seen this cruelty first hand. This isn't a morally neutral situation, it's wrong.

Fortunately, Texans are challenging our government's ignorance and hubris. One such organization is the Texas Coalition for Compassionate Care.

Here is a Q and A withTCCC director Stephen Betzen.

1. Name/background/resume
Stephen Betzen Director.
My degree in in Marine science from Texas A&M University. After graduating I spent one year as an investigator of environmental crimes in Harris County. I went on to teach science for 4 years in HISD. In 2004 I moved to Dallas and started 2 businesses Faircoffee.com and Ecowindchimes.com which did great till last fall. Though still running these businesses I am looking for a job to supplement my income.

More important to me is how I got involved in the Medical Marijuana movement. Though I never opposed medical marijuana, because I have always believed that doctors should be able to treat their patients and not the government... I did not truly believe in it 5 years ago. In fact I said some things that I regret to this day. My change in prospective came as I watched my wife slowly suffer from an unknown illness. Chronic neuropathic pain and spasming in her muscles became a daily problem and were getting worse. We were going through test after test to find the problem with suspicions of MS, fibromyalgia and others... all eventually ruled out. Doctors had prescribed her opiate medications to address the pain, however she stopped using them because that caused so many problems. The strong opiates and muscle relaxers prescribed were addictive and impaired her cognitive functioning, essentially making her lose touch with reality. Since she was unable to work while on these drugs, she had to stop as she owned her own speech therapy practice and had to keep it running. At this point we were in a very dark place in our lives and had lost almost all of our hope when someone who saw her suffering, an angel, placed a package on our porch containing 2 sandwich bags of marijuana and a letter explaining that she should try it to relieve her suffering.

The results were not at all like I had suspected, rather than looking/acting drugged she didn't miss one day of work and she was still able to function cognitively in order to perform her duties as a speech therapist. I continued to research it and found that medical science is reporting the same results with few side-effects. It made me angry to discover how distorted my previous views were.

I can not explain to you in words the pain for hearing the one you love most, cry every morning. I can not explain the joy of finding the medicine that worked and improved her quality of life in measurable ways. I can not explain the frustration of knowing that to treat my wife and improve her quality of life, I must break the law.

The following year (2007) I joined Texans for Medical Marijuana in their efforts. Unfortunately they shut their doors that summer, and I felt that we needed to move forward. I contacted other patients, caretakers and advocates and found that they also felt the loss of this organization. So we started the Texas Coalition for Compassionate Care and started the search for a non-profit to handle our funds (I still don't know the technical term for this, I have heard so many)... not only did the Dallas Peace Center agree to handle our funds... but they took us and our mission in completely, so we are technically a committee (and this is better financially for us).

2. What are TCCC's goals for this legislative session? What bills are you promoting?
We are focusing our efforts on affirmative defense for patients and protecting doctors, which is exactly what HB164 does. We will work on having a senate companion bill filed. The goal this session is to have this bill pass and become law.

Continue reading "TexasCompassion.com" »

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

White vs. State

Facts The Bexar County Sheriff informed a San Antonio police officer that there was an outstanding felony warrant for James White. SAPD officer goes to White's apartment, obtains a key from the landlord and lets himself in. White is found in the shower. During the arrest the officer finds a misdemeanor amount of marijuana.

Guess what? The warrant had been recalled. There was no warrant for the arrest of Mr. White. Defendant moved to suppress all evidence resulting from the illegal arrest. Motion denied by the trial court, defendant appeals.

Issue- Does 38.23 require the suppression of the marijuana?

Other issues- Shouldn't the government be responsible for maintaining an accurate warrant database? Or is this good enough for government work? Are we going to further erode our basic protections to save another useless pot conviction?

38.23
What is 38.23? It is the Texas version of the exclusionary rule. I'm glad Texas codified this common sense measure, since SCOTUS is hell bent on destroying the 4th Amendment.

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

How will the San Antonio Court of Appeals save this pot conviction? Simple, just expand the definition of "warrant" to include recalled warrants. Remember, it's only legislating from the bench if you further a liberal cause, this is strict constructionism.

Holding- A recalled warrant is still a warrant under 38.23(b) so the good faith provisions apply. If Deputy Dingdong at the Sheriff's office doesn't update the warrant database, and the arresting officer doesn't know the warrant is recalled, then the defendant has no recourse for a wrongful arrest. No suppression despite the illegal arrest.

I propose altering 38.23 to better inform the public how limited their protection is against illegal arrest. There is an distinct danger that Texans could read 38.23 and believe the law provides some degree of protection from such malfeasance.

Therefore, I propose a new subsection (c) for 38.23 as follows-

(c) It is an exception to the provisions of subsection (a) if drugs are found. The court shall consider the thousands of government employees who rely on petty drug arrests for their livelihood and sanction any police conduct that results in another triumphant dope arrest!

Via the Agitator via nevergetbusted.com.
Regardless of how you view the drug war, we should all applaud efforts to rid the criminal justice system of corrupt law enforcement. That's what makes this story so significant. Until now the libertarian/anti drug war movement has been reactionary; waiting for news to happen and responding. Now those who value freedom have the tools to set up traps for the police. This should make great reality television.

From nevergetbusted.com-

It's called an informant plant. The Odessa narcotics unit illegally compelled an informant to plant drugs on Yolanda Madden. The informant testified in federal court he planted the drugs on her and he passed a polygraph confirming the same. Yolanda also passed a polygraph along with a hair follicle and urine test. Our broken criminal justice system ignored the evidence and railroaded her through court sentencing her to 8 years in prison.

Her father hired KopBusters, a new reality show produced by NeverGetBusted, whereby Barry and Candi along with their detectives set up stings across America to catch crooked Kops.

KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.

The attorney was handcuffed and later released when eleven KopBuster detectives arrived with the media in tow to question the illegal raid. The police refused to give KopBusters the search warrant affidavit which is suspected to contain the lies regarding the probable cause.

The team of eleven freedom fighters wore red "Free Yolanda" shirts as they clashed with the police demanding answers for the illegal raid and the drug plant. The police would not comment but later stated they were trying to charge KopBusters with a crime.

I've met Barry Cooper. He is one of the most interesting and entertaining personalities in marijuana reform. Whereas some view his self promotion as detrimental to his credibility, I believe he is sincere about changing our nation's obscene marijuana laws.

His Never Get Busted videos generated a lot of media coverage and presented an easy to digest media story (Ex Cop Shows How To Hide Drugs!! Story at Nine!!). Unfortunately, this undercover work is a bit more complicated and therefore has not generated as much media attention. I couldn't find a story on the Odessa newspaper's website.

Finally, without more information there's no reason to believe that there must be dishonesty or corruption behind this search. It could be old fashioned incompetence. I hope the media pays attention and stays with this story. The police can only keep this search warrant hidden for so long. Eventually, the truth has to come out.

Texas has some of our nation's most outdated marijuana laws. Possession of any usable amount of pot is a Class B misdemeanor that carries a sentence of up to 6 months in jail, and a $2,000 fine. In reality most misdemeanor pot defendants get probation. However, Texas makes no distinction between recreational and medicinal pot smokers. All marijuana consumers are criminals in Texas.

I have witnessed the prosecution of the infirm for marijuana possession. It is a horrible practice that degrades our justice system. If prosecutors will not use their discretion to dismiss cases against the sick, then Texas must join the 14 other states that allow the medical use of marijuana.

To that end House Bill 164 was submitted last week. The text of the bill can be viewed here. Notice our state's peculiar spelling of "marihuana."

164 would create an affirmative defense to marijuana possession. MM patients would need to show that a doctor recommended marijuana use. If so, patients could avoid conviction, probation, and further incarceration. 164 would still allow the arrest of MM patients, so drug warriors can feel good about that.

From HB 164-

It is an affirmative defense to prosecution under Subsection (a) that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.

It is time Texans acknowledged that medical marijuana patients deserve compassion and protection, not prosecution.

Thanks to the Marijuana Policy Project for highlighting this important piece of legislation.

Barack Obama is our next President. Like the outgoing President, Mr. Obama is an ex pot smoker. America's current pot smokers will be glad to find out that our nation's voters supported common sense marijuana form last night. With help from the Marijuana Policy Project, here is an overview of three marijuana ballot initiatives that passed last night.

Massachusetts Question 2: Remove the threat of arrest or jail for possessing an ounce or less of marijuana, replacing it with a $100 fine, which could be paid through the mail without lawyers or court appearances, just like a speeding ticket.

It's too bad Texans can't get a similar law passed. Court time, police time, prosecutor time, defense attorney time are wasted on simple pot possession cases. In my experience 95% of marijuana prosecutions are for less than 2oz (class B).

Michigan Proposal 1: Permit terminally and seriously ill patients to use medical marijuana with their doctors' approval.

Arresting patients is not the sign of a compassionate society or a limited government. I've represented MM patients and there is no justice in their prosecution.

Fayetteville Arkansas- Require adult marijuana possession laws to be the lowest priority for local law enforcement.

If the police can't prioritize their time and effort then the voters must legislate common sense for them. The voters in Fayetteville sent a clear message- quit wasting time with adult pot smokers and go solve some real crime. This would be a great law for Dallas PD (which has pathetic 6% crime clearance rate for burglary.)

Texas' Drug Free Zone (DFZ) law is a testament to the failure of Prohibition. If our drug war worked special laws to keep drugs out of certain areas wouldn't be necessary. But I digress.

So what is a Drug Free Zone?
Basically in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; or in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility or on a school bus.

The DFZ fantasy is that cops are busting drug dealers who prey on innocent school children. In my experience most DFZ charges are brought against adults with a joint in their car 900 feet away from a prohibited area. Local cops quickly learn which roads are in a DFZ, and adjust their traffic stop/fishing for drugs activity accordingly.

What happens to a DFZ case?
This is fairly complicated. Basically, the punishments are increased. More jail time, probation can be denied, sentences can be stacked. Read this great article from TDCAA for more info.

Wait a minute, this law would make every college a drug free zone. I've been to college and it's no drug free zone.
Good observation. Since most legislators went to college, and/or have kids in college, some DFZ provisions don't apply to college campuses. For example, simple marijuana possession on a college campus doesn't fall under the DFZ law.

The federal propagandists who argue for marijuana prohibition claim that marijuana consumers are not a burden on the criminal justice system. The numbers tell a different story. Last year 827,721 persons were arrested for marijuana possession.

What The Cops Aren't Working On
If those numbers aren't embarrassing enough then consider the millions of police officer/prosecutor hours wasted, and the billions spent incarcerating, warehousing, and processing these defendants. I often blog about the opportunity costs of the drug war.

When the police are arresting pot smokers, they can not spend that time and energy on solving real crime. Arresting marijuana smokers is not just a stupid public policy- it is a dangerous policy that lets real crime go unsolved. Don't take my word for it. Recently, Scott Henson Grits For Breakfast recently broke down the FBI's crime stats for 2007.

From Mr. Henson-

I was also interested to learn that the vast majority of arrests are not for violent or property crimes: "In 2007, the FBI estimated that 14,209,365 arrests occurred nationwide for all offenses (except traffic violations), of which 597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses, a figure which seems surprisingly low to me.

Some of that can be explained by the drug war: "Law enforcement made more arrests for drug abuse violations (an estimated 1.8 million arrests, or 13.0 percent of the total number of arrests) than for any other offense." What's more, 42.1% of drug arrests were for pot possession.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?
To see how marijuana prohibitions makes you less safe, look at these crime clearance number for 2007.

Murder 60%
Rape- 40%
Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

GOP VP candidate Sarah Palin is an ex marijuana consumer. Mrs. Palin smoked her pot in Alaska, which her campaign points out was legal in Alaska at the time. This is a curious defense as John McCain is an advocate for the federal arrest and prosecution of medical marijuana patients and providers who operate legally under California law.

Like any good politician Mrs. Palin she now claims she didn't enjoy her marijuana, and that adults (besides her) should still be arrested, even though she wasn't.

"'I can't claim a Bill Clinton and say that I never inhaled.'" The paper quoted Palin as saying she opposed legalization of marijuana because of the "message" that would be sent to her children.

The arrest of 800,000 adults a year for cannabis does send a message- about the perpetual ignorance of government. A better message for children is that one day they will be adults, and they will have adult decisions to make. Mrs. Palin's marijuana stance seems to be typical political hypocrisy; convenient and intellectually dishonest.

Today, Alaska still has the country's best marijuana laws. According to NORML an adult can posses up to one ounce of pot at home, with no penalty. Of course, the logic behind Alaska's policy ends there as possession of over 4 ounces is a felony offense.

If legal marijuana is good enough for the GOP Vice Presidential candidate, why not for all Americans? After all, where would John McCain be if Mrs.Palin had been arrested and put through the drug court deferred probation nonsense so many other defendants face?

It's a busy work week, which makes for slow blogging. Here is Colbert Report gem via the Agitator. H/t to Radley.

Enjoy.

Can anything sum up our idiotic federal marijuana policy better than this 5 minute clip. I've seen a lot of media about the War on Drugs, and medical marijuana. This is some of the best.

For those who still want patients arrested

1. The federal government grows medical marijuana at U Miss.
2. The federal government has a patent on medical marijuana
3. Texas has had a successful MM defense for pot possession

I doubt our next lege session will have the courage, compassion, or common sense to pass medical marijuana legislation. However, it is only a matter of time before all state abandon the cruelty of arresting MM patients.

For those new to the blog I am a member of the National Organization for the Reform of Marijuana Law's (NORML) legal comittee. I used to prosecute pot cases, now I defend them. My goal is for a future in which lawyers will do neither.

That being said, here is This Week In Federal Marijuana Prohibition

Marijuana Is Grown By Illegal Immigrants!!!
CNN reports that Mexican Drug Cartels are using illegal immigrants to grow pot in national forests. Lou Dobb's network manages to hit all the xeno panic without asking the simple question- Wouldn't legalization end this practice?

Last time I checked Mexican drug cartels were not using illegal immigrants to grow tobacco, or run moonshine stills. If you are really want to end these drug cartel pot farms in national parks, legalize pot.

Deadly Addictive Substance
Here is a video of prohibition's Colonel Klink, John Walters. John makes a few statements while chopping down pot plants. Among them is that
1. Hollywood must quit glamorizing pot, this is their fault
2.This isn't "Cheech and Chong" marijuana.
3. Marijuana is a deadly addictive substance

Let's break down these three statements.
1. Hollywood is a typical scapegoat for lost conservative causes. Why should prohibition be any different?
2 shows the need for legalization. When marijuana is legal, I'm sure Cheech and Chong brand pot will be trademarked and consumers will know for sure if certain plants are CNC brand. Mr. Walters is right, we need better labeling of marijuana products (thc level etc) so consumers can make informed decisions.
3 is 100% false, no one can overdose on marijuana and addiction potential is extremely low. However, Mr. Walters salary, power, and benefits are built on that lie so he isn't really in a position to question it.

Notice all those federal para millitary forces chopping down pot plants (are the masks really necessary?) Is that the best use of your tax dollars? You employ 200 full time federal agents who do nothing but chop down pot plants all year. Do you like watching John Walters use your tax dollars on a federal para military gardening operation?

The Charlie Lynch Mushroom Jury
Here is why we need to fire the John Walters of the world. These petty tyrants joyfully incarcerate decent hard working Americans for marijuana crimes. Charlie Lynch is only the most recent victim of federal medical marijuana prosecutions.

Mr. Lynch was found guilty of violating federal marijuana laws despite the fact he operated a state licensed and legal in California marijuana dispensary, and despite the fact he sought DEA advise and approval for his operation.

Mr. Lynch opted for a jury trial. Unfortunately this was a typical mushroom jury (kept in the dark and fed shit). The jurors were not allowed to hear important defense evidence. And of course, all jury nullification arguments and evidence were prohibited.

For a sobering, if not scary insight into how the federal criminal justice system,"> watch this great video by reason.tv.

New Fiction Novel By Federal Government
Finally, the federal government released their annual marijuana "factbook". There are many websites devoted to debunking this information. I was happy to list them for USNews readers.

If you were to believe this "factbook" marijuana is a deadly addictive substance, and the only way to control this threat is by banning pot, and arresting users.

Unfortunately, many Americans believe this fear based propaganda. Then again, many Americans will sign up to ban water if you describe it the same way our federal goverment describes pot.

Ban Water? Really, watch this video by Penn and Teller, then you will understand why histrionics and fear mongering is a favorite among the Prohibition crowd.

Rep. Barney Frank proposed ending federal criminal penalties for possession of small amounts of marijuana. The Personal Use Act may not have a chance to pass this time, however the tides are turning against our failed drug war.

For proof the public is catching on read the comments to the CNN story. Despite years of hystrionics (smoking pot is just like Russian Roullette!) and tax payer funded garbage propaganda Americans are rejecting prohibition louder than ever before. There is simply no logical intelligent support for arresting Americans who use cannabis.

For some perspective closer to home check out these comments on legalization
- the Dallas Morning News
- the Ellis County Press.

Which sound represents your views? Do you still believe the federal government should arrest marijuana consumers? How about medical marijuana providers?

Reason.TV- The Charlie Lynch Tragedy
For supporters of federal prosecution watch this video by Drew Carey and Reason.TV.

Mr. Lynch runs a medical marijuana dispensary in California. Mr. Lynch has broken no state laws. He provides doctor prescribed medical marijuana. Still your federal government has decided to send Mr. Lynch to prison. The trial is on going and the judge is not allowing important jury nullification evidence, denying Mr. Lynch a fair trial.

One of the arguments used by the DEA et al, is that marijuana isn't medicine.

Maybe they should look at this US patent for medical marijuana. The holder of patent 663030507? Your federal government.

I'm on a suppression win streak. My last two suppression motions in marijuana cases have been granted. Like any other criminal defense attorney I have had more than a few motions to suppress denied. As a NORML legal committee member these marijuana victories are especially satisfying.

Aggregating these cases produces some general advise on being stopped and searched.

First, cops will often try and trick you into granting permission to search your car. You should NEVER consent to a police search of your vehicle.

Why? The cop might be crooked, your friends might be drug users, and the officer has already decided you are a criminal.

Look out for this typical line the cops use to get your consent to search.

Cop- "You don't have any guns, meth, hand grenades, or dead bodies in your car do you?"
You- "No."
Cop- "Then you don't mind if I search your vehicle."
You- "Actually I do mind. Am I free to go now?"

See the trick. The cop is implying that only a person with something to hide would deny permission to search. He wants you to say "No, I don't mind" before you have a chance to think about it. In this case the correct answer is "Yes, I do mind."

Cops rarely ask for permission to search in a straight forward manner. They often backdoor their search request. Why? They want to get your consent, without informing you of your right to refuse.

Why do the police want to search your car? Not because they like you, or "just to check your vehicle" so they can let you go. The police only ask for consent to search because they think you are a criminal and they don't have probable cause to search.

Asserting your rights will often make the police angry. Here is a typical response.

You- "I do not want you to search my car."
Cop- "Well, if you have nothing to hide why can't I search?"
You- "Am I free to leave?"
Cop- "If you don't let me search I am going to bring out the drug dog!"
You- "Am I free to leave?"

At that point the cop is left with a decision on whether to actually call out the K9 unit, or let you go. Don't feel bad for him. He is the one who caused this problem. You can still refuse to search, even if the officer is angry, or threatens you.

Start asking cops if you are free to leave. Cops hate this, but it is important. During a traffic stop the police should only be investigating traffic violations. They will inquire about the violation, check your DL/insurance, and check for warrants. If the police start asking about drugs, it is because they think you have them.

Finally, never try and stop an officer from searching. That's always a bad idea. Even if you think he is acting illegally the side of the road isn't the place to correct bad officer behavior.

Headlines From Reuters-
Low-dose pot eases pain while keeping mind clear

According to these Reuters people something called a "double blind placebo controlled randomized study" concluded that smoking marijuana was a safe and effective treatment for pain.

Yeah right. Maybe these "researchers" and "medical doctors" didn't realize that Richard Nixon declared marijuana medically useless over 20 years ago. Tricky Dick didn't need any placebos or double blind randomizing to reach that conclusion. Nixon just knew pot was bad.

The hundreds of federal employees fighting marijuana use wouldn't lie to us. Who do these Reuters people think we are? They must be terrorist supporting marijuana addicts

Reuters states that this "research" was done by the Center for Medical Cannabis Research at the University of California. That can't be true. Since marijuana has no medical use their couldn't be an entire research center dedicated to studying the medical use of pot. That would be like having a Center for Medical Unicorn Research.

Luckily Americans don't have to rely on this "Reuters" for news. We can still turn to the bastion of truth and integrity ONDCP, for unbiased, honest, and credible medical marijuana information.

I am a member of Law Enforcement Against Prohibition. LEAP is a wonderful group composed of ex and current law enforcement professional working to end the drug war.

My stint as a prosecutor made me eligible. However, unlike many LEAPers I was never a true believer in Prohibition. Many LEAP members have a conversion of sorts. Years of experience eventually lead them to realize the War on Drugs is a perpetual failure. Me, not so much.

My libertarian beliefs, combined with my economics degree from UTA, and my criminal law classes at Tech taught me that prohibition would always fail and always cause the same predictable externalities every time (death, corruption, violence, mass incarceration.) As a prosecutor my beliefs were sadly confirmed.

However, I have been writing some Op-Eds for LEAP. Recently I penned this article on Medical Marijuana for a Minnesota paper. It was in response to this column by a Minnesota DA. Enjoy-

A Minnesotan suffering from MS finds out that smoking marijuana gives her relief. Her doctor agrees that marijuana is a safe and effective treatment. This same woman is then pulled over by police, searched, and found with marijuana on her person. Should she be arrested, prosecuted, and incarcerated?

That is the question with medical marijuana. Do Minnesotans want to use limited law enforcement resources arresting the sick, the suffering, and the dying? Dakota County Attorney James Backstrom does.

The length to which supporters of marijuana prohibition will advocate bringing the weight of the criminal justice system down on the infirm amazes me. A quote by CS Lewis helps explain this cruelty.

"Of all tyrannies a tyranny sincerely exercised for the good of its victim may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

Marijuana prohibition is a tyranny of good intentions. Proponents sincerely believe that the government should prohibit all use of marijuana regardless of circumstance. James Backstrom is not paid to question the law. His writing merely parrots federal "just say no" propaganda. Mr. Backstrom lacks either the ability or desire to question government policy, even it means arresting the dying.

I speak from experience. I was a prosecutor on many marijuana cases. I used some cheap rationalizations to justify the arrest and harassment of marijuana consumers. "I don't write these laws,” I told myself. Having defending medical marijuana patients I can now attest to the cruelty of their prosecution.

The truth is that federal marijuana law is not divinely inspired. The fact that marijuana is a Schedule 1 substance (like crack and black tar heroin) is a political decision with no basis in reality, or science. Richard Nixon is to blame for making ignorance federal law. Under Nixon's administration marijuana was arbitrarily labeled as having no medical use.

The truth is marijuana has many beneficial medicinal uses. Three FDA approved medicines have been derived directly from marijuana-Nabilone, Sativex, and Marinol. These medicines are used to treat MS patients who suffer from debilitating pain and spasms, as well as cancer patients who are suffering through chemotherapy.

Several patients actually receive rolled marijuana cigarettes directly from the federal government. During the 70's and 80's these patients proved in court they had a "medical necessity" that required smoking marijuana. The same federal government that claims marijuana has no medical use actually grows pot (at the University of Mississippi) and delivers it to patients across America!

If the federal schedule 1 designation for marijuana had any basis in fact, these drugs and patients would not exist. The American College of Physicians, Leukemia & Lymphoma Society, American Academy of Family Physicians, American Public Health Association, American Psychiatric Association, American Nurses Association, British Medical Association, AIDS Action American Academy of HIV Medicine, Lymphoma Foundation of America and Health Canada all advocate using marijuana as medicine. 13 States have programs that allow the sick to access medical marijuana without fear of arrest and incarceration.

It is time to reject failed Nixon-era policies and embrace the compassion, science, and common sense behind medical marijuana.

Dallas Mavericks small forward Josh Howard admitted to recreational pot use yesterday on a sports radio program. Josh has never failed any league drug tests. He simply chooses to use marijuana in the off season instead of the drugs approved by the NBA, DEA, and State of Texas- namely alcohol and nicotine. Here is a quote from Mr. Howard.

"What can I say? If you can do it and it's not affecting your everyday life, why stop? If I'm able to do it, but not while I play basketball, it lets you know I can quit whenever."

Owner Mark Cuban and Coach Avery Johnson both expressed regret at Howard's announcement. Mr. Cuban stated this "will be dealt with" in the offseason.

My question is- exactly what should be dealt with? Josh's crime seems to be being honest and showing no remorse over using marijuana.

Instead of silencing honesty we should use this opportunity to expose the common government lies about marijuana. The ONDCP ad "Pete's Couch" is a great example. Pot smokers are supposed to sit around all day doing nothing. Somehow, stoner Josh scored 18 points last night to help defeat the Hornets.

Here is more from ONDCP on the dangers of pot-

Marijuana abuse is associated with many detrimental health effects. These effects can include frequent respiratory infections, impaired memory and learning, increased heart rate, anxiety, panic attacks and tolerance. Someone who smokes marijuana regularly may have many of the same respiratory problems that tobacco smokers do, such as daily cough and phlegm production, more frequent acute chest illnesses, a heightened risk of lung infections, and a greater tendency toward obstructed airways.

Does any of that sound like the Maverick's starting small forward? Some could argue that Josh's struggles with new point guard Jason Kidd are a sign of mental impairment, but I digress.Here are Josh Howard's career stats. Despite ONDCP's terrible list of pot related problems Josh has managed to average 15 points and 6 boards a game for 5 years.

Josh is a professional athlete with access to the latest nutritional, health, and sports medicine information. Josh would not risk his body, or his $9M annual salary just to get high. If marijuana was as dangerous as the federal government claims no professional athlete would touch it. The truth is- many professional athletes get high because marijuana can be used safely and responsibly.

I wish more professional athletes had the honesty and courage of Josh Howard. There is no danger when Josh Howard gets high. There is no reason to arrest Josh or make him apologize to the public. It will be a better day when all Americans can use marijuana responsibly without fear of arrest.

Sitemeter makes it easy to browse the Google searches of my readers. Here are some recent search terms that led readers to DCDLB (formerly IWTS).

where to buy marijuana in dallas?
Reader, no one in America buys, sells, or uses marijuana. Our dear leaders in the federal government have declared that marijuana is verboten. Americans would never violate our divinely inspired federal drugs laws. I would be shocked if marijuana is for sale in Dallas, shocked!

Ok, all kidding aside. The hundreds of pot cases pending in Dallas County tell me that buying marijuana in Big D can't be that difficult. Perhaps a better question is "Where can't you buy marijuana in Dallas?"

Just so you know reader, Possessing or Selling Marijuana is illegal in Texas.!! Don't be like George W. Bush, Newt Gingrich, Barack Obama, Bill Clinton, The Beatles, Steve Jobs, or the new Governor of New York- Just say no!!

texas laws on possession of meth
In Texas possession of methamphetamine is at least a State Jail felony (under 1 gram). The crime, Possession of a Controlled Substance carries with it a sentence of 6 months to 2 years in State Jail (probation may be an option, or even required).

As a rule- jail in Texas sucks. However, State Jail is worse than your normal prison. Why? Unlike TDC (Texas Department of Corrections) State Jail has no "good time" credit, you have to serve your sentence day for day. So the inmates have no incentive to behave in State Jail. Ergo, they don't.

Possession of prescription amphetamines (Adderall) is a Class A misdemeanor.

alr hearing got dismissed does this help me for my dui case
It depends on why your ALR case was dismissed. If the judge found there was no probable cause to stop or arrest that will help your attorney defend your DWI case. If the case was dismissed because the right witness did not show up at the ALR hearing, then not so much. Either way, in Texas an ALR win does not prevent the State from filing a DWI case.

A wonderful victory for compassion and common sense in Texas. From the Marijuana Policy Project

A Texas patient who uses medical marijuana to treat the symptoms of HIV won acquittal on marijuana possession charges March 25 based on a “necessity defense.” Though such a defense - which requires the defendant to establish that an otherwise illegal act was necessary to avoid imminent harm more serious than the harm prevented by the law he or she broke - has rarely been successful in Texas, the jury took just 11 minutes to acquit Tim Stevens, 53. The trial was hotly contested. .

That is a good summary of the necessity defense. Exactly what harm does Marijuana Prohibition prevent anyway? I would enjoy making this argument to a jury. How a prosecutor could try and justify this cruelty to a jury is beyond me. Of course, sometimes the duty of a prosecutor is to convict, not to see that justice is done.

Stevens had never been in trouble until Amarillo police arrested him for possessing less than 4 grams of marijuana. As a result of his HIV infection, Stevens suffers from nausea and cyclical vomiting syndrome, a condition so severe that he has required hospitalization and blood transfusions in the past.

I challenge any Prohibition Apologist to justify this arrest and trial. What kind of policy justifies turning sick patients with no criminal history into defendants? Do you feel safer when we arrest people like Tim?

The common sense and decency exhibited by this Amarillo jury is typical of what we see from voters around the country,” said Ray Warren, director of state policies for the Marijuana Policy Project in Washington, D.C., and a former North Carolina Superior Court judge. “The American public doesn’t want to see seriously ill patients arrested and jailed for simply trying to stay alive with the help of medical marijuana. It’s time for legislators in Texas and around the country to follow the public’s lead and take action to protect patients, so that no one battling a life-threatening illness has to live in fear of arrest.”

Great Work by Criminal Defense Lawyer Jeff Blackburn!

The Texas Tax Code requires our State comptroller to produce tax stamps for controlled substances. Theoretically, you buy these stamps and then place them on your bag of weed, meth, or crack.

How much are these stamps? $200 per gram for eachcontrolled substance except for pot. Pot is a much more reasonable $3.50 per gram.

For some reason Texas laws refer to marijuana as marihuana. Where did they get that spelling?

Does the comptroller just fax buyer information to the cops? They are not supporsed to. It is illegal (class B misdemeanor) for the comptroller to release a buyer's information. However, I am not sure the State would be interested in prosecuting such a case.

Not A Defense
If you do buy these stamps, your drugs are not legal. From the tax code-

Nothing in this chapter provides a defense or affirmative defense to, exception to,
or immunity from prosecution under the penal laws of this state relating to controlled substances, counterfeit substances, simulated controlled substances, or marihuana.

These taxes are obviously not meant to generate revenue. They are merely another tool to take money from defendants. The real crime is the sales tax Texas loses on the daily marihuana sales in our state. Instead of wasting millions on incarceration we should be generating revenue.

These are like questions in a way. Each reader is looking for specific information. So let me treat these as a Q/A session.

Remember, this isn't legal advise. You pay for that. This is blogging.

Search Terms- Where to Find Marijuana Detox Drink in Dallas, Texas

Reader, I feel for you. I believe marijuana should be legal and treated like alcohol. I also have no idea where to get a detox drink in Dallas.

I know what you are thinking. If only you had done some crack, or shot some heroin- because those drugs will not stay in your system as long. Let me assure you that smoking pot is still a much safer recreational experience than other illegal drugs.

I suspect you must take a drug test for probation, or trying to get a job.

If you are on probation that is a great time to quit smoking weed. The State of Texas only approves cigarettes and doctor prescribed drugs while you are on probation. So get some Camels and/or a script for Marinol.

If you are trying to get a job- Don't work for those idiots. Any company that would waste money screening for cannabis does not deserve your talents.

Search Terms- Field Sobriety Test False Positives

Depends what research you use. Since the SFST are completely subjective they are subject to false positive results. Research has shown a false positive rate between 22-47%.

Search Terms- How Should US War On Drugs Be Changed

Easy. First, here are all my posts on the subject. In Sum- We should allow adults to legally buy the drugs they want for recreational use. That will end the black market, and empty our prisons. We can then focus these criminal justice resources on killers, rapists, terrorists etc. For further reading try StopTheDrugWar.Org.

Labels: DWI, Marijuana, War On Drugs

Here is a letter Rick sent out to the membership today. Compare his views with the taxpayer funded cannabis propoganda on ONDCP.

TV Host Rick Steves: NORML, Good Citizenship and You!
December 31, 2007

Hello NORML Supporters!

I’ve found a great niche in life. I love to travel and I love to teach travel. Travel carbonates my life. When we travel, we find new wonders and new ways of looking at things. And travel is a great teacher. By traveling, I’ve learned that the costly prohibition against marijuana is a uniquely American crusade. In Europe these days, a joint is about as exciting as a can of beer.

As author of thirty best-selling travel guidebooks and host of the popular TV series, Rick Steves’ Europe, I’m a public person. I pride myself on being honest; open to other viewpoints, and caring. These are all reasons why I speak out publicly against the counter-productive and wrong-minded US prohibition against marijuana.

It’s striking to me that here in America, a nation which has championed freedom since even before the French Revolution, 40,000,000 citizens smoke pot recreationally yet so few will admit it publicly. People call my outspokenness on pot courageous.

If it takes courage to speak the truth, then it is even more important to do so.
For the better part of the past five years, I’ve served proudly on the Advisory Board of the National Organization for the Reform of Marijuana Laws (NORML) – America’s leading drug law reform group.

During my NORML tenure, I’ve said loud and clear that I believe responsible adult use of marijuana is a civil liberty; that the current prohibition against pot is as counter- productive and costly to our society today as the prohibition against alcohol was back in the 1920s and 30s. I’ve said that if the goal of our nation’s drug policy is harm reduction (rather than locking people up), problem cannabis use should be treated as a health problem rather than a criminal problem. (That’s the pragmatic European approach.) Further more, I believe that if our government managed to lock up every pot smoker in the USA, our country would instantly become a much less interesting place to call home.

I’ve enjoyed sharing these ideas during my keynote speeches at national NORML Conferences and I shared my thoughts on drug policy reform in a recent Los Angeles Times editorial. In fact, in my lectures all over the USA, I share frankly and openly how America’s “War on Drugs” is failing while Europe’s more pragmatic approach is much more effective.

In America you can be hard on drugs or soft on drugs. Europe offers a third choice—smart on drugs.

Many of my friends and workmates are concerned that my speaking out against America’s failed pot policies is dangerous. But you don’t need to smoke pot to oppose a law that criminalizes it. As an American, I insist on the freedom to oppose a law I think is wrong. As a businessman, I’ve found no real backlash. As a parent, I have credibility with my children on drug abuse issues.

I’ve explained my beliefs on countless radio and TV interviews. Invariably, those interviewing me express admiration for my common-sense stance—but only after the mic is turned off. (Candor would threaten their jobs.) My political representatives understand and respect my viewpoint – even if they are afraid to make it an issue in today’s political environment. And personally, I am embracing one less lie than most of my countrymen. That’s a good thing. It just feels right to speak publicly about the wrongness of making the responsible adult use of marijuana a crime.

When it comes to smoking pot, the only shame I feel is how our nation treats its citizenry.
I feel shame when I read that 80,000 Americans are in jail today on marijuana charges. I feel shame that the US arrests over 800,000 Americans a year for marijuana—90 percent for simple possession. I feel shame when I listen to America's Drug Czar parrot administration lies about the effects of pot so that our government can continue to deny its therapeutic use for seriously ill patients who so vitally need it. I feel shame when I learn about the billions of taxpayers’ dollars our government spends targeting and jailing non-violent marijuana smokers, while at the same time it denies needed funding for necessary social programs such as health care, education, and treatment for victims of hard drug abuse. And I feel frustrated here in “the land of the free and the home of the brave” that I am one of just 3 or 4 paltry (no offense, boys) celebrities with the nerve to admit publicly that they smoke pot.

I believe the mature adult recreational use of marijuana is a civil liberty
Our responsible, adult, pot-smoking friends and workmates should not be criminals. That’s a big reason why I’ve chosen to devote my time, energy, and financial resources to supporting NORML’s tireless efforts. Today I’m asking you do the same.

Together, supporting groups like NORML, we are making substantial progress toward ending the prohibition of our age. Over 4 million Americans are tuning into NORML’s daily podcast and more than 375,000 people have recently signed up to support NORML on the social networking website Facebook. However, these totals still represent only a fraction of the tens of millions of Americans who – like me – understand that marijuana is best treated as a soft drug—taxed and regulated like alcohol and tobacco.

NORML is not a charity…it’s a service, fighting our battle in Washington, DC.
If you agree with me, support NORML financially with an end-of-the-year gift. If you’re reading this letter you’ve given money to NORML in the past. Thanks for your support. We need to continue giving…again…and again…until pot smokers are no longer criminals in the USA. We must work together and support the dogged and heroic struggle NORML is waging. Together, we can bring an end to a prohibition that is bringing far greater harm to our nation than the problem it is trying to address.

Matching Grant—Double Your Donation!
Please join me in making a tax-deductible donation of $100 or more to NORML. Your end-of-the-year contribution will help to assure that NORML can continue its vital work. Plus, thanks to support of longstanding NORML funders, the amount you donate to NORML today will be matched dollar for dollar (up to $30,000) – making your contribution go twice as far and work twice as hard.

As 2008 approaches, let me propose a New Year’s resolution. Let this be the year you educate your friends about the importance of bringing sanity to our drug laws and to challenge those who believe that the responsible and recreational adult use of marijuana is a civil liberty to join NORML. Here’s a New Year’s challenge: Make a commitment to encourage at least three friends to become paying dues members of NORML.

In this political season, if responsible citizens who enjoy a little marijuana recreationally spoke honestly and publicly about this, perhaps our nation’s leaders would realize it is not political suicide to advocate pragmatic European-style drug policy reform.

Thank you again for your financial support of NORML. Together we can teach America that by taking the crime out of marijuana, our nation will be a better place.

Happy travels (even if you’re just staying home),

Rick Steves
NORML Advisory Board
Edmonds, Washington
http://www.ricksteves.com/

I wonder how long the feds can argue that marijuana is not medicine when we will soon have two prescription drugs based on cannabis.

MEDICAL MARIJUANA, The Trojan Joint?
Medical Marijuana is a topic I have mixed emotions about. On one hand, I believe any movement that results in arresting less people for pot is good. One the other hand, I believe that Americans, as free people, should have the right to smoke what they want, regardless of medicinal value. Pot should be available for any use, recreational or medicinal.

Johnny Walker Blue is not medicine, it cures nothing. I still consume it, even though a side effect of drinking aged Scotch is intoxication. We ended Alcohol Prohibition without requiring that "medical alcohol" be legalized first.

Prohibitionists often argue that MM is simply a "trojan horse" to legalize cannabis funded by the evil George Soros. I have to plead guilty to that charge. I hope that MM will take away the stigma and fear around marijuana and speed up the inevitable legalization of cannabis. I have never met George Soros, but he should feel free to sponsor this blog.

The debate on cannabis is shifting. Medical pot is happening, Barack Obama has come out for legal medical use. Here is a great page of videos on all the canidates MM stances.

The debate over MM will end with legal prescription drugs like Sativex and Marinol available for certain "good" uses like pain management and fighting cancer, while recreational use is still banned.

Whereas, getting high is not recognized as a medical treatment, anxiety relief is. What separates taking Xanax to treat "anxiety" from smoking pot for a simliar purpose? Is it because the government (FDA, DEA) has not blessed marijuana for "anxiety" treatment. Is that really why we arrest 750,000 cannabis consumers a year?

I believe the arguments surrounding marijuana are moving towards an inevitable debate on the sovereignty of your mental state.

Who Owns Your Mental State?
Here is a recent video of John McCain trying to justify Prohibition. John implies that drugs, unlike alcohol, can not be used responsibly and therefore must be banned. He also states that while you can drink without getting drunk, drugs have this awful side effect- intoxication. Here is a great video of Bill O'Reilly throwing a hissy fit over the idea that you have any right to get "intoxicated."

The argument of Mr. McCain, Mr. O'Reilly and other Prohibition apologists is that the federal government has a higher claim to your sobriety than you do. You somehow need government permission to pursue "intoxication" on any level, and then only through approved substances.

The right to control your mind should be one of the basic tenets of freedom. Unfortunately we have accepted the paradigm that the FDA, DEA, and Pharma companies can and should have a monopoly on what you can do to your own mind.

Next time an Austin Cop questions you, ask for a lawyer. That is what Austin PD did when asked about their Austin Energy customer data mining program. Here is the quote from KXAN

An APD representative agreed to talk to KXAN Austin News about using energy
usage information, but just before the interview, the agency got a call from its
attorneys, advising to refrain from commenting on the issue.

"State law allows us to share information with other governmental entities, and
APD is, of course, a city department," said Ed Clark of Austin Energy. " And so,
really and truly, we wouldn't have a basis on which to deny information to them,
and on the other hand, we are interested in assisting them."

Only a bureaucrat, or a fool, could be proud of the disease, death, corruption, and mass incarceration caused by the drug war.

Sounds like a logical move. Medical marijuana has been routinely dismissed as a "trojan horse" by the Bush Administration.

I wish this trojan horse wasn't necessary. The argument against prohibition should win on the logic of allowing free markets and free people to make decisions that do not harm others.

Marijuana should not be legal because it could possibly be medicine. It should be legal because we are free.

Alcohol isn't medicine. Tobacco doesn't cure anything. We tolerate these "drugs" because of tradition, not science.

The idea that cancer and AIDS patients are going to be arrested for pot smoking is something most Americans find revolting. Medical Marijuana generates an emotional response that other anti-prohibition arguments can not match. Americans want to help patients who are suffering. If only the suffering caused by prohibition was as compelling.

I spent so much time as a prosecutor on POM cases. I always wanted to give "deferred" so that it wouldn't destroy the defendant's chances for student loans etc.

I remember reading POM Police Reports and always asking "And?" at the end.

For example, the report summary would say "Pulled suspect over for speeding, 56 in a 45. A consent search yielded a small quantity of a green leafy substance believed to be Marijuana." And?

This is valuable law enforcement time and effort being documented for my prosecutorial review. Who is safer because of this arrest? What was accomplished?

That being said... I hope they allow these studies. Arresting recreational pot smokers is stupid, arresting cancer patients who smoke pot, is evil.