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Marijuana Prohibition Evolving
By Eric Krasle
I have been following the marijuana prohibition saga as a civil libertarian and criminal attorney for more than 26 years.
Recent legislative actions in Colorado and Washington State, as well as previously in other states, achieving various degrees of re-legalization of marijuana, have made news lately as part of a national moderation of anti-marijuana laws. These progressive developments, however, while creating the perception of a sea change in social acceptance of marijuana, will not actually herald in the degree of freedom and acceptance implied by their achievement.
While various institutions, particularly among federal law enforcement, seek to nullify these very achievements, based upon preemption by Federal Law over the subject matter, the true long term developments affecting the freedoms associated with marijuana use will be in the private sector, and through subtle government imposed hurdles.
Republican-led legislative initiatives primarily aimed at cutting the initial costs of entitlement programs have been introduced to institute drug testing as a prerequisite for various state government benefits. Georgia passed such a law 2012 GA Act HB 861 affecting O.C.G.A. § 49-4-193, requiring drug testing of recipients of welfare (TANF) benefits, which will be tested in the courts. A similar statute, in Florida, however, has recently been rendered void by the US 11th Circuit Court of Appeals (also the Circuit for Georgia) in an opinion voiding the law on a balancing test, but also indirectly critical of its Constitutionality. Lebron v. Secretary, Florida D.F.C.S. 11-15258 (11th Cir 2013).
An epidemic of pain killer medication abuse has led to heavy scrutiny of pain management clinics; and new legislation in Georgia is aimed at curtailing abuses by some “pain pill factory” private entities. Already, however, pain management clinics have begun instituting a requirement of drug testing as a prerequisite to becoming or remaining a client and obtaining medicinal relief. In short, the private sector has taken up the cause of eradicating marijuana use/competition. This development is somewhat ironic; as little or no medical basis has been demonstrated for depriving medical or recreational marijuana users from obtaining needed pain medication. In fact, the very people who are, because of their pain, seeking prescription pain medication on a legitimate basis, are also the people most legitimately turning to marijuana as a low cost less addictive substitute for opiod based pain management. Their best alternative for tempering their use of prescription pain medication and avoiding addiction may, itself, be in the marijuana usage.
Generally, drug tests, whether consumer home tests, Court required test (such as for probation), or employment or insurance related tests, do not seem to differentiate (in repercussion) between drugs such as cocaine and heroin, on the one hand, and marijuana on the other. In fact, a consumer would be hard pressed to find any kind of drug test which tests for the hard drugs without testing for THC metabolites (marijuana). Yet those same tests seem to have no problem excluding tobacco and alcohol. The tests that do test for THC metabolites often fail to differentiate between the non-impairing carboxy metabolite and impairment related hydroxy metabolite. This deficiency is not based upon a lack of technology, but rather an apparent lack of willingness to depart from the status quo of marijuana demonization.
Courts step in on occasion. The Georgia Supreme Court, for instance, in Love v. State, 271 Ga. 398 (1999) basically said (paraphrasing): “Yes, Pot is illegal, but it takes more than a test showing you are using it for you to be DUI. There has to be evidence you are a less safe driver.” A better requirement would be to show impairment from the drug at the time of driving, like in other states, including where use is legal.
Currently, Federally based financial aid is also placed in jeopardy upon Court disposition of one charged with a marijuana, based offense. I refer to “the case disposition” rather than “conviction” since, in contravention of the entire intent behind First Offender treatment of defendants, even first offender disposition of drug cases can have the negative result of disqualifying one from obtaining Federal financial aid. Essentially, from a sheerly economic capitalistic standpoint, it would appear that marijuana use is perceived as a marker for higher risk behavior, by various governmental and institutional policy makers, and thus testing is a way to “weed out” participants in risk spreading models. This author anticipates that this trend will widen, and that drug testing will not just continue to be more widely used, irrespective of any logical argument in support thereof, for participation in school programs, obtaining or keeping a job, qualifying for government benefits, obtaining medical care, traveling abroad, obtaining licenses and otherwise.
Threatening the placement of some one on the No Fly List, for instance, can shape behavior without maintaining a “Law” against disfavored activity. Once, information about a positive screen, in any context, can be shared, then the stigma could be used for a number of denials.
The death of protest, in an analogous extension of this principle, came from the loss of the right to protest anonymously, in the seemingly benign case of Hibel v. Sixth Judicial District of Nevada, Humboldt County 542 US 177 (2004). Basically the Court said that the failure to identify ones self can be criminalized, even if one is not otherwise disobeying the law. Now that being on the wrong side of an issue, to the government, can label you as troublemaker, and they can put you on the “No Fly List” (ask Cat Stevens) the legal act of protesting becomes prohibitively risky.
Marijuana use, in the same way, will continue to be more discouraged by forced disclosure, and stigma, and repercussions.
Upon decrimilization/re-legalization, however, how much can a private employer or offer of services to the public, such as in insurer, discriminate against users? Well, we all know about higher rates and denials for tobacco users imposed by insurers, but the health argument is nowhere near the same with marijuana, still, though, with usage perceived as a “marker,” one would expect similar adverse treatment. Recent developments regarding the ability of employers to discriminate against tobacco users in their off time) indicate that unless there is a state anti-bias law to protect tobacco users) there would be no protection.
Eventually the pendulum may swing back as the realities of stigmatizing or depriving the masses produces its own problems. Some legislators realize that the wider such nets are cast, the more likely they will not be tolerated. “Test for Welfare” legislative proposals are often countered by proposals to include legislators in the testing.
Workers compensation insurers, for some time now, have offered substantial discounts (such as 14%) on premiums for employers who have a drug-testing program, particularly not exempting marijuana. Employers can achieve cost savings in their workers compensation premiums by instituting the drug-testing program, although it is not necessarily prudent to do so. A manufacturing plant in Athens, Georgia, who chose not to institute the testing program, even though their main competitor, a Tennessee plant of another company, had taken advantage of this incentive. The end result, reportedly, was that the Athens plant actually ended up increasing their market share when the Tennessee plant, as a result of the testing, lost so many employees that it could not keep up its production schedule.
Small restaurants make the same choice, to staff well despite higher premiums. Similarly, large sophisticated German companies, instead of testing for off duty alcohol use and discriminating on that basis, have exacted a hiring competitive edge by offering beer in vending machines at work.
The current long-term regarding liberalization of marijuana in these ways, is more restrictive, irrespective of the short term legislative achievements, but the resulting wholesale restrictions on autonomy and opportunity for users will eventually cause a push back to this trend.
Managing Your Encounter at a Police DUI Checkpoint or During an Encounter
Basic Premise of DUI Roadblock and Police Encounter Defense
“I am willing to do anything that you order me to do but I do not wish to do anything that I am not required to do.” This is your mantra. Learn it, remember it and practice it.
Things to remember during a police encounter
· Cameras are rolling. Remember that you are playing to the camera. Everything that you do must convince the jury that you are safe and not intoxicated.
· Be polite.
· The officer is looking for 4 or more “cues” (indicators of your intoxication.) What you do during a police encounter largely is determined by how many indicators that you believe that you have. The police gather these indicators through questioning, testing and observation of your behavior.
Preparation before driving where you may have a potential encounter with the police
· Have your drivers license, registration and insurance handy. Presenting all three immediately without being asked or fumbling for them shows you to be aware, sober and on your game.
· Use Mouthwash before starting your car
· Use Visine before starting your car
· Open all windows
· Have an inhaler handy to use in front of police
· Have a prearranged story for why you are out late. For instance, you were called to help a friend in need. Sometimes the officer will say “I smell alcohol”. Your story should fit. For instance, maybe you were helping a drunk friend who poured a drink down your back. (Remember to point out where liquid was poured down your back)
· Take off any club bracelet, wash off any hand stamp.
· Tell your passengers not to speak if you are stopped – protocol is that the officer must request another officer for each person who engages them.
The right attitude during the encounter
Both you and your passengers should place both hands on the open window sills. This should be done casually not eagerly. Be polite. Don’t fidget or make excuses.
Handling the interview with the Officer.
Beyond your initial story, there are certain questions that you should be prepared to answer. The main questions is “Have you been drinking tonight?” There are of course two answers:
· I have been drinking – You should answer “No” to this question. Answering “yes” is an indicator. You’ve just given the officer one of his indications. This answer will also be followed by “how much”, “where were you drinking” and other questions meant to trip you up and provide more indicators. Everyone says “2 beers” when asked how much. Don’t do it. If you find yourself later in the interview after a breathalyzer being proven wrong about drinking, a safe response is “Oh, I had some wine with my meal. I don’t really count that!”
· I have not been drinking – Remember your story regarding why you are doing out so late.
· Do not get out of your car unless ordered.
· Have your hands visible on car window side with your documentation as the officer walks up. Do not do any thing sudden. Have your passengers shut up with their hands in front of them.
Basic premise – DUI testing is not required before an arrest. Strategies after an arrest are covered below. Remember to do everything that an officer ORDERS you to do but when asked to take a test, but remember your mantra “I am willing to do anything that you order me to do but I do not wish to do anything that I am not required to do.” Make sure to ask the officer if any test is required. They will try to blow off an answer but be sure to restate that your understanding of the officers response is that the test in not required. Be pleasant. Tell the officer that since “the test is not required, that you do not wish to trouble him.” You are sure that he’s probably given it 10 times that night so you will spare him the trouble since it is not required. Specific advice about tests if you find yourself in a testing situation are below:
Eye test (or HGN test) – Never volunteer to take this test. Instead, remember to remind the officer that he indicated that this test was not required. The eye test alone can give the officer all 5 of the indicators that he needs to arrest you for DUI. Politely remind the officer that you thought he said it wasn’t necessary and that you don’t want to bother him with something unnecessary. If you find yourself taking the test, remember these pointers:
· Never touch the vehicle, especially while getting out. It would be considered an indicator that you needed the vehicle for support.
· Tell the officer “I cannot see me taking the test. How do I know how I did?” The officer’s judgment is subjective and thus the test is unreliable.
· They are to avoid this test if you have certain eye problems in your history (slow eye).
Handheld Breathalyzer – Reasons to refuse this test
· I thought you said it wasn’t necessary.
· The test is not accurate
· I am asthmatic (remember the inhaler). Many police procedures have exceptions for asthmatics. Butyrol can also affect test results.
Walking and turning – Contrary to popular belief, this test is not about walking a straight line. The test is about patience and following directions. The thought is that intoxicated individuals are impatient, cocky and don’t listen to directions. The test requires that you tap the back of your heel against the front of your foot as you step. It also requires that you take short, choppy steps and not spin at the end. Here are a few tips about taking the test if you should find yourself in that position.
· Don’t be a smartass. Listen to what the officer says. Ask him about anything that is unclear. Remember that you will be facing into his headlights and lights.
· Don’t balance with your arms. This is an indicator.
· Actually tap your heel into your toe as you walk. Tap hard if necessary.
· There will usually be an odd number of steps since odd is harder than even.
· Don’t spin at the end. Take short, choppy steps.
· Remember if the officer says “clockwise turn” or counterclockwise turn” at the end of your steps.
· Take short, choppy steps
Excuses for not taking the “walk/turn” test.
· I have a bad knee
· You said it wasn’t required
One leg stand test - Contrary to popular belief, this test is not just - just about keeping your balance. The test is about patience and following directions. The thought is that intoxicated individuals are impatient, cocky, and don’t listen to directions. Usually if people know how long a test will take, they can stand on one foot easily for that period of time. The officer will usually say, “stand on one foot until I tell you to stop”. Since this is a test of patience, an intoxicated person will be thinking “How long does this damn test take?”. Be patient. The test is usually 40 seconds.
Excuses for not taking the “stand on one leg” test.
· I have a bad knee
· You said it wasn’t required
After an Arrest
If you should find yourself arrested for DUI, here are a few thoughts to keep in mind.
· An implied consent warning should be given within one hour.
· You are being recorded in the police car. Remember that you are playing for the camera and the judge and jury will see this. Keep it together.
· You will be asked to take a test at the police station
Whether you take the test depends on how many indicators of DUI that you think that you have.
If the answer is “Yes” – If you think that you scored poorly (they will not tell you what your score is), request your own test. The police must “reasonably” accommodate you in this. They must take you to an ATM and to a local hospital. Remember how long hospitals take? The chances are good that your score will be much lower when your test is taken. Bear in mind that the test may also indicate other illegal substances. If you think you will score well, then your own test will not be necessary.
Excuses for not taking the test:
“I want to take my own test anyway so I don’t want to waste your time”
If the answer is “No” - Failing to take the test is an indicator of DUI however you should refuse the test if you believe that you are over the limit. Its not a great defense but may win at trial. There is a mandatory 1 year suspension of your drivers license upon a refusal of the test. This can often be removed during the case by your attorney.
Reasons to refuse the test
· I shouldn’t take it because I’m cooperative with the officer’s advice.
· Refuse saying that because officer has been belligerent or untruthful, so you are distrustful.
You can still get a DUI if you are under .08. However, the presumption is that .01-.06 does not make you a less safe driver. .06-08 is neutral.We offer a wide array of legal advice and services. Please feel free to browse our website. You will have an opportunity to find out what services we offer. You may meet our staff. You may browse our scrapbook to learn more about what we've done and where we are going. Also you can learn how to contact us to receive a free consultation. If you have any questions, please don't hesitate to let us know. We'll get right back to you. Thank you for visiting.