Monthly Archives: March 2020

Medical Marijuana vs. Probation

With the legal use of medical marijuana on the rise, many states are being faced with the issue of what to do with their probationers who are medical marijuana card holders.

While unclear how often petitions are granted, California allows anyone on probation or in jail to petition a judge for lawful use of medical marijuana. Since 2014, the state of Washington stopped testing for marijuana in their parolees and allows them to use legal marijuana like any other citizen. Rhode Island state laws explicitly allow for parolees to continue using medical marijuana.

A recent Colorado case has pushed back on what judges are allowed to order in their courtroom when it comes to medical marijuana. Back in 2017, Alysha Walton pled guilty to driving under the influence of alcohol and speeding and agreed to probation as part of her sentence. During the process of Walton’s case, her legal team requested a hearing to allow her to continue using medical marijuana during her probation. The judge required the presence of a medical professional at the hearing in order to properly address her concerns.

When Walton appeared at the hearing without the presence of her doctor, stating that she was unable to get anyone to appear in person or by phone, the judge stated that her probation required her to abstain from medical marijuana. He did not find the presence of her medical marijuana card and a letter written by her doctor to be valid substitutes of his request for a doctor’s in-person testimony.

The Colorado Public Defender’s office took up the fight, arguing that this restriction was an abuse of the court’s power. They argued that, while she may not have brought a physical person to the courtroom as requested, she still provided adequate documentation to support her need for medical marijuana.

In 2015, Colorado passed a law dealing specifically with conditions of probation relating to the use of medical marijuana which states in pertinent part that probationers are to “[r]efrain from excessive use…of [an] abusable drug without a prescription; EXCEPT THAT, THE COURT SHALL NOT, AS A CONDITION OF PROBATION, PROHIBIT THE POSSESSION OR USE OF MEDICAL MARIJUANA…UNLESS…THE COURT DETERMINES…A PROHIBITION AGAINST THE POSSESSION OR USE OF MEDICAL MARIJUANA IS NECESSARY AND APPROPRIATE TO ACCOMPLISH THE GOALS OF SENTENCING…”

So, while Colorado state law specifically addressed the use of medical marijuana for probationers, whether a probationer was allowed to use medical marijuana rested solely within the discretion of the judge. There is, however, a problem with this.

“A person’s sentence always has a lot to do with who the judge is. And while you can never pick who your judge is, you can’t change who your judge is, you always have to know who your judge is. And if you’ve been doing this for as long as I have, you’re going to know what judges completely frown on marijuana no matter what. And you’re gonna [sic] know what judges have an open mind and are willing to follow the law because that’s what the legislature tells them to do,” Denver attorney Jay Tiftickjian told CPR News.

In Walton’s case, her lawyers argued that her case was about alcohol, not marijuana, and that the courts should not have restricted its use in the first place. They argued that inquiry of the facts of her medical marijuana use and requiring a doctor to present those facts was an abuse of the court’s power.

The court, fortunately, agreed with Walton’s attorneys in a decision issued late last year. The Court held that people sentenced to probation may use marijuana while on probation unless the prosecution can provide evidence that the use of marijuana during probation would be counter to the objectives of the person’s sentence.

While the decision to allow a probationer to use medical marijuana still rests within the discretion of the judge, their discretion to deny medical marijuana use is, at least, limited to only when the prosecutor can prove that its use would be a detriment.


Is Utah Going Too Far?

We have kept an eye out on Utah ever since they first began talking about lowering the legal BAC level to 0.05% and when they, if fact, enacted the lower BAC limit in 2019. We had hoped that the restrictions would end there, not just with Utah, but across the country, all the while watching as more and more states, including California, started to consider lowering their legal blood alcohol limits to 0.05%.

Well, it looks like Utah legislature has struck again.

House Bill 325 seeks to create an “Alcohol-Restricted Individual Program,” which would essentially allow the government to monitor and restrict a person’s right to purchase alcohol. According to The Salt Lake Tribune, “Under HB325, the Utah Department of Alcoholic Beverage Control would create the program, which would ‘prohibit a state store from selling, offering for sale, or furnishing liquor to an individual enrolled in the program.’”

The bill allows for individuals to join and be removed from the list voluntarily.

However, in addition to voluntary enrollment, any first-time conviction for driving under the influence could carry with it a sentence requiring a person participate in the Alcohol-Restricted Individual Program

This new requirement would be in addition to the mandatory penalties the court would hand down which includes up to 6 months in jail, fines up to $1,000 plus court costs, an alcohol assessment and attendance at a state-approved alcohol and drug educational program, and a license suspension.

State-run liquor stores would be required to scan a person’s driver license to determine whether a person is participating in the program in order to approve or deny the purchase.

A DUI conviction could potentially lead to mandatory enrolled a program that would limit, if not outright restrict a person’s right to purchase and consume alcohol.

According to Fox 13, “all alcoholic products (except beer) are sold through DABC stores. Even bars and restaurants must purchase their liquor through the state.” However, it remains unclear as to whether other alcohol-serving establishments, such as restaurants, would also be subject to the law.

Forget about restaurants, what about the many other ways that a person can get alcohol? A person convicted of a DUI could have a friend or family member purchase the alcohol for them. A person convicted of a DUI can go to a social gathering where alcohol is served, either commercially or personally.

Is it just me or does this seem like a futile attempt at the government telling us what we can and can’t consume? It certainly seems so given the many glaring issues with mandatory participation in the program.

Having said that, it’s nice to know that the legislature took at least some time to protect its citizens from governmental overreach. The bill goes on to require that “The department may not: disclose any information related to an individual currently or previously enrolled in the program, or retain any information related to an individual previously enrolled in the program.”

DUI Blood Withdrawals and the Emergence of E-Warrants

In 2013, the United State Supreme Court in Missouri v. McNeely held that a blood withdrawal was, in fact, a search which is protected under 4th Amendment of the Constitution. And since it is a search of the thing that we hold to be most private, the court held, officers must first obtain a warrant supported by probable cause to be able to forcibly withdraw blood from a DUI suspect. Prior to McNeely, a forcible blood withdrawal fell within one of several exceptions to the warrant requirement. The “exigent circumstances” exception allowed officers to forcibly withdraw blood from a DUI suspect without having to first obtain a warrant because of the risk of losing their blood alcohol content through dissipation in the body.

Since McNeely, the United States Supreme Court has declined to hear several similar cases by prosecutors hoping to overturn the decision. In doing so, the United States Supreme Court has essentially affirmed that our body is, in fact, the most private thing we own. Before law enforcement can forcibly withdraw blood, they must get a warrant.

But how much time does it take to get a warrant? Might someone sober up by the time it takes officers to obtain a warrant from a judge?

Some police agencies in Hawaii are working to address these concerns.

E-warrants cut down on DUI blood draw delays

February 29, 2020. The Maui News –  When traffic officers begin using electronic search warrants to draw blood from suspected impaired drivers this weekend, police expect to more quickly obtain key evidence in DUI crashes and arrests.

“When you’re dealing with a DUI crash or DUI arrest, time is of the essence because the alcohol dissipates in the blood,” said Lt. William Hankins, commander of the police Traffic Section. “Four or six hours later can make a significant difference.”

Rather than having officers meet a judge to have a paper search warrant reviewed and signed before it’s executed, the electronic warrants are sent by secure email for a judge to review and return, Hankins said.

“Nothing has changed with the way the warrant looks and acts,” he said. “The only thing that’s changed is the method by which it’s being delivered.

“We’re just exchanging emails back and forth, as opposed to spending 30, 40 minutes, an hour and a half, meeting a judge, then driving all the way back to the hospital” to execute the warrant.

An officer won’t have to leave his vehicle to apply for an electronic warrant, Hankins said.

“We’re saving tons of time and getting a much more true and accurate reading of what someone’s blood-alcohol content is at the time of an arrest or a crash,” he said.

Police are using an $8,600 federal Department of Transportation grant to pay for training, consultation and other costs to implement electronic search warrants under a state law that took effect Jan. 1. The cost is expected to drop by half next year.

“Electronic warrants will enable law enforcement to investigate crimes in a timely and efficient manner,” said Maui County Prosecuting Attorney Don Guzman, who has assigned two deputy prosecutors to handle and review the warrants. “In particular, we need effective strategies to combat impaired driving, which are time-sensitive investigations due to the fast metabolization of alcohol and drugs in a person’s body.

“Electronic warrants will streamline this process, reduce the amount of time lost in gathering vital evidence, and provide police officers and prosecutors an effective system to help keep our community and roadways safe, while ensuring appropriate judicial review and compliance with constitutional rights.”

Police worked with the Judiciary and judges to implement the program, which allows for up to 1,000 electronic warrants this year.

While only traffic officers will be using electronic warrants for now, eventually officers in other divisions also could begin using e-warrants, Hankins said.

In the past, police would use forcible extraction to draw blood from suspected impaired drivers, he said.

But the Supreme Court ruled it was unconstitutional to do so without a warrant.

“It’s made it a little bit more difficult for us to get these blood draws, to get a true and accurate reading of blood-alcohol content,” Hankins said.

For warrants obtained by telephone, officers have to record the conversation with a judge and transcribe it by the next day.

That takes hours that an officer otherwise could spend on the road looking for other impaired drivers, said DUI Task Force Sgt. Nick Krau.

With electronic search warrants, “it’ll literally cut the time it takes us to get a warrant in more than half,” Krau said.

“Maui County has an extremely skilled, hardworking, dedicated DUI Task Force,” he said. “But you can only enforce the laws and use the tools made available to us by our elected officials and the community.

“When the Legislature passed the e-warrant law, it was a huge win for public safety and the safety on our roadways. It is definitely a game changer for what we do.”

Sgt. Kenneth Kihata, who heads the Vehicle Homicide Unit that investigates fatal and near-fatal crashes, said electronic warrants could be returned within a few minutes, compared to three or four hours for paper warrants.

“Basically, it’s making the process more efficient,” Kihata said. “All these fatalities are preventable senseless deaths.”

Last year, traffic officers applied for about a dozen warrants to draw blood from suspected impaired drivers.

Some cases involved fatal crashes and others involved habitual DUI offenders, who have at least two prior DUI convictions within 10 years, and refuse to give blood or breath samples, Hankins said.

“Those are the most dangerous,” he said. “To be able to get blood and get people convicted, it’s all going to save lives in the end.”

He said the use of electronic warrants is another tool for police, who have been working with Mothers Against Drunk Driving and the community to try to prevent an “epidemic” of drunken driving by raising awareness about its dangers.

As of Thursday, police had made 115 impaired driving arrests this year.

This year, police began enforcing a county law allowing police to tow vehicles of drivers arrested for impaired driving. Since enforcement began Jan. 17, about 40 vehicles have been towed, with the registered owners responsible for towing and storage fees generally ranging from $400 to $600.

Hankins said one arrested driver, who had thousands of dollars in tools in his truck, thanked officers for towing the vehicle so it would be safe.

“The people who are getting arrested now know their behavior is wrong,” Hankins said. “The public generally acknowledges that DUI is unacceptable behavior. The hard part is changing the behavior.

“We want to do everything we can to stop impaired driving, to save lives.”


While Maui’s approach may be a novel way to address the issue with the time it takes to obtain a warrant and the natural dissipation of alcohol in a person’s system, let’s just hope that expediency doesn’t affect the quality of warrant or information needed to obtain it.

Marijuana Smell and the 4th Amendment

The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.

The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.

Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.

For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.  

But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?

In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.

However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link:

In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”

Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.

In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.

The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.