marijuana

June 26, 2020

Authorities Crack Down on Illegal Dispensaries in Chula Vista

At least $10 million in products, close to $100,000 in cash, and five guns were all confiscated by police as a result of raids on illegal marijuana dispensaries in Chula Vista. The police also arrested 15 individuals who were working the illegal operations in addition to one customer. Police Lt. Dan Peak said that the arrests led to six felony and 10 misdemeanor charges.

Residents in the area complained about the illegal operations that were largely located near elementary schools. In 2018, Chula Vista legalized dispensaries but have not issued permits leading to legal cannabis operations. Since 2014, there have been over 50 dispensaries shut down by authorities. Dispensaries that are shut down will often simply reopen after a period of time or relocate their operations, making the initiative to close these businesses down very difficult.

Not only are operations illegal, police argue that they are unsafe for the public. Modifications done to buildings are not approved or inspected and could be a fire hazard or otherwise trap people in an emergency situation. The increase in pressure for recent enforcement measures has upped the ante from civil proceedings to criminal charges. April alone saw six criminal complaints filed. The local police and the City Attorney’s Office with the San Diego County District Attorney’s Office will not back down. These officials plan to continue moving forward with criminal enforcement on those locations which are illegally selling marijuana. The police indicated that at any given time, there are numerous illegally-operating dispensaries.

Marijuana Laws in California

Individuals aged 21 years or older are permitted to have a maximum of 28.5 grams of marijuana in their possession or up to eight grams of concentrated cannabis. Consuming marijuana must be done on private property. If you rent an apartment and the landlord has not given consent for smoking, you are not permitted to smoke. Also, any location where tobacco is prohibited, marijuana is also not allowed.

The cultivation of plants is legal. Individuals aged 21 years or older are allowed to grow up to six marijuana plants indoors or outdoors in areas where it is permitted through local regulations. To do business, both a state and local license are necessary. Without a license, selling marijuana is still a crime in the state of California. Licenses are issued by the Bureau of Marijuana Control. Also, selling to a minor is illegal and comes with felony charges.

Other laws say that driving with marijuana can garner you a fine of up to $100. Those who require medical marijuana can obtain it through non-profit medical marijuana dispensaries. Continue reading

June 6, 2019

Will the THC Blood Test Show I Was Impaired?

by David M. Boertje

Absent the distinctive scent associated with smoking marijuana, how can the police determine if you are driving your vehicle under the influence of marijuana? Marijuana use for personal consumption is legal in California. It is illegal, however, to drive under the influence of marijuana in California.

Field Sobriety Testing

When the police stop a driver under suspicion of driving under the influence of alcohol or drugs, including marijuana, but cannot readily observe marijuana use, they may request that the driver participate in field sobriety tests to determine if he or she is impaired by alcohol or drugs.

Generally, a suspected impaired driver may be asked to perform a series of the following tests:

The one-legged test requires you to stand on one leg for a period of time. If you are able to do so, you pass this test.
The walk and turn test requires you to walk in a straight line. You are evaluated for balance, staying on the line, walking and stopping, and following directions. If you are able to remain on the line walking as instructed, you pass this test.
The horizontal gaze nystagmus test, also known as the HGN test, requires you to follow the gaze of the police officer’s finger or an object in the police’s hand. You are evaluated for compliance with the instructions and the nature of your eye movements. If you are able to follow the gaze as instructed, you pass the test.

If you fail the field sobriety tests, the police have probable cause to arrest you under suspicion of driving under the influence of marijuana.

Chemical Tests

Every time you drive on California’s roadways, you have already consented to submit to a chemical test if asked to participate in one by law enforcement. Once in police custody, law enforcement may require you provide samples of your blood, breath, or urine to conduct chemical tests. With respect to marijuana use, the tests would measure the presence of THC, the active ingredient in marijuana to support the DUI (marijuana) element of the charge. As of the Spring of 2019, there is no breath technology that can measure THC in a person’s breath in use by San Diego’s Police Department. All three tests are less able to measure THC as time passes.

Cotton Swab Tests

In San Diego, police at DUI checkpoints may use a cotton swab to collect a saliva sample from a driver. The cotton swab test can detect the presence of THC as well as crystal meth, methadone, cocaine, and some prescription drugs.

Charged with illegal use or possession of marijuana or driving under the influence of marijuana in San Diego? Hire a knowledgeable and experienced San Diego criminal defense lawyer to help you resolve your case. Continue reading

March 28, 2018

San Diego District Attorney Moving to Dismiss, Reduce Marijuana Convictions

by David M. Boertje

Under a “little-noticed provision” on Proposition 64, the voter-approved law legalizing recreational marijuana, California residents with marijuana convictions may be eligible to have those felonies and misdemeanors reduced or, in many cases, fully expunged off their criminal records, according to The San Diego Union-Tribune. According to the San Diego District Attorney’s Office, the city has proactively expunged 700 criminal records since the law came into effect at the beginning of the year and released 55 people incarcerated because of marijuana. The city still has 4,000 cases awaiting action by the courts.

For California residents who have been impacted the most severely by their marijuana convictions, so-called “high priority” convictions, the public defender’s office and district attorney’s office have moved aggressively and quickly to expunge the records. These include California residents who have marijuana convictions preventing them from gaining employment or limiting their access to government benefits or housing.

According to Summer Stephan, interim district attorney for San Diego, “We want to be pro-active. It’s clear to us that the law was written to allow this relief, and it’s important that we give full effect to the will of the people, especially for those who are most immediately affected.”

The problem, according to the San Diego public defender, is that there is no unified system for identifying marijuana-related convictions. The current database only goes back to the early 2000s, therefore, individuals with marijuana convictions in California may need to proactively petition the courts for an expungement. “It won’t happen overnight, but we are committed to seeking relief for everybody who is entitled,” said Angie Bartosik, chief deputy primary public defender. Bartosik noted that for those seeking relief under Proposition 64, there is a form available online at courts.ca.gov and, for most, filling out the form will be sufficient to expunge their records.

Effectively expunging all marijuana convictions is a statewide problem. Only 5,000 Californians have sought to have their marijuana convictions removed from their records, according to the Drug Policy Alliance. Considering the fact that there were more than 500,000 people arrested for marijuana just between 2006 and 2015, this means that hundreds of thousands or more Californians are likely eligible. In San Francisco, where only 20 people have filed petitions for expungement, district attorney George Gascon announced that the city will proactively search and expunge all marijuana convictions dating back to 1975. The San Francisco DA estimates that this would include over 3,000 misdemeanors and almost 5,000 felony convictions. Continue reading

September 29, 2017

San Diego DA’s Prosecution of Pot Attorney Sends Chills Through the Legal Community

by David M. Boertje

It has been reported throughout the years that minor drug offenders or registered marijuana businesses were being targeted by police, but now, it seems that marijuana attorneys who represent those in the marijuana businesses are now coming under fire from law enforcement. Last month, attorney Jessica McElfresh, an experienced attorney in cannabis law, had her hearing in San Diego district court. She is facing multiple felony charges for allegedly hiding hash oil from city inspectors on behalf of her client, James Slatic.

Back in May, D.A. Bonnie Dumanis filed a slew of criminal charges, alleging that Slatic and his business partners were illegally manufacturing and selling hash oil across the country. Specifically, McElfresh is accused of hiding the evidence from city inspectors during an April 2015 inspection of her client’s facilities in Kearny Mesa.

However, what most attorneys are concerned about is arguably the most sacred right in the legal profession – attorney-client privilege. Prosecutors want access to all of her records, not just the ones pertaining to the charges McElfresh is fighting. There is a particular email in question that prosecutors are using to accuses McElfresh of conspiring with her client. However, McElfresh has counseled hundreds of clients, and now those records are in front of prosecutors.

The Ethics of Marijuana Law

It has long been debated whether an attorney can take on a client in the medical cannabis business. While recreational marijuana will soon be legalized in California, it is still a Schedule I drug under the federal Substances Control Act punishable by jail time. A June 2015 ethics opinion from the Bar Association of San Francisco (Opinion 2015-1) has concluded that representation of such businesses is legal if the lawyer advises clients to adhere to state regs and discourages illegal conduct. For example, aiding a client through a business permitting process is lawful representation that does not breach ethics rules.

Attorney Client Privilege

Every state bar has a rule that protects attorney-client privilege. In California, ABA Rule 3-100 specifies that conversations and information given by a client as it pertains to professional legal advice are protected as “confidential” and inadmissible in court. However, that same rule also specifies that a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime. In the scenario above, the judge claims that McElfresh’s communication(s) fall under this narrow exception. Continue reading

September 23, 2016

The Difficulty of Enforcing Laws Against Driving While High

by David M. Boertje

NPR just published a relatively detailed story on how difficult it is to enforce DUI (driving under the influence) laws for those under the influence of marijuana. Like the rest of the nation, the state of Colorado has seen a sharp increase in marijuana DUI arrests. So far, State Patrol data illustrates that the number of citations rose from 316 in 2015 to 398 this year.

Colorado’s marijuana DUI law is modeled on the one for alcohol, which sets a number for blood-alcohol levels to determine when someone is too intoxicated to drive. For pot, that number is five nanograms of THC per milliliter of blood. That means it is illegal to drive if you have anything over that level. However, according to the Center for Medicinal Cannabis Research at the University of California, San Diego, measuring a person’s THC is actually a poor indicator of intoxication. This is because unlike alcohol, THC gets stored in your fat cells, and is not water-soluble like alcohol. As a result, one can still test positive for THC even a week after consumption. This is something defense attorneys all too easily point out.

As far as policy implications, scientists at UCSD say that what cops really need is a simple roadside sobriety test.

Driving Under the Influence of Marijuana in California

Aside from normal DUIs, California is one of the many states that have a specific statute that addresses driving while under the influence of marijuana. See CA Vehicle Code 23152(e). One is considered “under the influence” of marijuana if, as a result of consumption, his or her mental and physical abilities are impaired so that he or she cannot drive like a sober person.

The tricky thing with driving while under the influence of marijuana is that there is no “per se” amount of THC in the bloodstream that can easily establish impairment unlike alcohol (.08%). Chemical tests still cannot accurately reveal how much THC one has consumed, or how recently. As a result, police will have to look to other factors, such as: your driving pattern, physical appearance, statements to police, and your performance on field sobriety tests.

If convicted of a marijuana DUI, one may face probation for three to five years, and six months in jail. You will also face extensive fines and a suspension of your driver’s license. If someone is injured or killed as a result of the impaired driving, then one may be facing a felony charge punishable by state imprisonment and a suspension of a driver’s licenses for a year. Continue reading

June 10, 2016

California Prepares to Green the Pot Industry

by David M. Boertje

In the drought-ridden state of California, illegal pot farmers have been harming the watersheds, wildlife, and endangered species with the pollution runoff from their pot growing operations. While California was the first state to legalize the use of medical marijuana, the state is now struggling with environmental enforcement as illegal farms pollute the state’s waterways, poisoning the endangered salmon, steelhead trout, and Pacific fish. Unscrupulous growers who are unwilling to pay taxes or pay for permits have remained a problem. They are also likely exporting their marijuana across state lines to sell.

Because marijuana still remains illegal under federal law, farms stay hidden in forested, undeveloped watersheds so as not to gain the attention of federal authorities. The runoff of pesticides, THC, etc. from these farms has poisoned wildlife, and the water diversions from streams to water the plants have exacerbated the state’s drought and disturbed the surrounding ecosystem that depends on the water.

Legislation signed by Gov. Jerry Brown in October calls for the state to start regulating the cultivation industry and begin issuing permits for commercial growers in 2018. California will award licenses to commercial growers who also have local permits that are approved by the city, as an attempt to discourage backwoods, illegal farms.

January 1, 2016

Police Search Ensues After Viral Facebook ‘Toddler Pot’ Video

by David M. Boertje

The holiday month kicked off with a not-so-festive video that was uploaded on Facebook by an unknown man, pressuring a toddler, who is wearing diapers, to smoke what appears to be a marijuana blunt. The video was uploaded in the Chicago, Illinois area and drew such a national public outrage, that the Chicago Police Department is now looking for the man who uploaded the video. Additionally, detectives with the Area South Special Victims unit have become involved to investigate the footage. A spokesperson for the Illinois Department of Children and Family Services also would not confirm whether they will be investigating the video, and the Attorney General’s office announced that it would not.

It is unknown when the video was taken or uploaded, but the man who filmed it may face child endangerment charges if caught. The man behind the camera is heard telling the toddler “smoke” and “inhale.” When the video ends the man appears to be saying “let me hit that.”

California Child Endangerment Law

November 20, 2015

Feds Launch Nationwide Synthetic Drug Crackdown

by David M. Boertje

According to the Federal Drug Enforcement Administration (DEA), Federal drug agents have arrested more than 100 people across the country in the latest phase of a national crackdown on manufacturers and purveyors of synthetic drugs. Since July of 2014, it is reported that the DEA, in cooperation with other state and federal agencies, has arrested over 151 people in 16 states. Government agents also seized more than $15 million in cash and assets as part of Project Synergy, an ongoing DEA crackdown on synthetic drugs. Most recently, agents in the Southern California area seized $500,000 in cash and 200 pounds of synthetic drugs. This crackdown operation ended in October 2015.

The DEA has been focusing on synthetic drugs, including bath salts, Spice, and Molly since their use gained widespread popularity because they do not show up on drug tests. Additionally, six new synthetic drugs have increased the number of drug-related deaths in San Diego within the last year. Authorities have never seen these compounds in autopsies before.

What You Need to Know About Synthetic Marijuana