The Case of “Bosko” the Police Super-Dog!

By: David Sloane, NORML Attorney

Occasionally, I run across an appellate case where the court’s blind acceptance of the Police account of events surrounding a Marijuana arrest is astounding, even for me. This one comes Carrolton, Texas. (A suburb of Dallas.) In $27,877.00 CURRENT MONEY of the UNITED STATES, v. The STATE of Texas, an asset forfeiture case, the Carrolton Police alleged their dog “Bosko” from under a garage door was able to “sniff” and “alert” on the mere scent of Marijuana on currency concealed in a gym-bag under a bed in a back room of the Defendant’s parent’s home. The trial court accepted this and the appellate court agreed. According to the appellate opinion: “…In March 2007, Carrollton Police Department Narcotics Officer Mai Tran received information from a confidential informant that Roberts was trafficking marihuana and alprazolam (also known as Xanax) from a house in The Colony, Texas, where Roberts lived with his girlfriend and some friends. Officer Tran obtained a search warrant from a City of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties) and executed the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone address), in Denton County. At the Malone address, Carrollton police officers found 8.5 tablets of alprazolam, 2 tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash. Roberts was arrested. After the arrest, Officer Tran received additional information that Roberts, fearing that the police would raid his home, had moved drugs and money to two separate places. Specifically, the information was that Roberts had moved drugs to the house of James Savoldi, a friend and alleged "runner" for Roberts, and had moved money to Roberts's parents' house. Carrollton Police Officer Jeremy Sanchez, a canine handler, and his dog, Bosko, performed a " sniff search" on Savoldi's home at 4601 Freeman Drive, The Colony, Texas (the Freeman address), in Denton County. Bosko " alerted" to an odor at the front door of the house. Based on the information from the informant and the sniff search, Officer Tran obtained a search warrant for the Freeman address. During the execution of the warrant, Savoldi admitted to the police that he was holding the drugs for Roberts. Savoldi had hidden a black gym bag with approximately two pounds of marihuana at the Freeman address. When he heard from Roberts's girlfriend that the police had searched the Malone address, Savoldi took the bag of marihuana from his house to a hotel in Addison, Texas, where it was later confiscated by Carrollton police officers. Roberts pleaded guilty to the felony offense of possession of more than four ounces but less than five pounds of marihuana for the marihuana that the officers found in the Addison hotel room. While in jail, Roberts made a phone call and advised an unknown person that "the money" was in a bag under his brother's bed at Roberts's parents' house, 4628 Archer Drive, The Colony, Texas (the Archer address), in Denton County. Officer Sanchez and Bosko conducted a sniff search around the exterior of the Archer address, and Bosko alerted at the bottom of the garage door. Officer Tran obtained a search warrant for the Archer address from the same magistrate in Carrollton as the previous two warrants and executed that warrant. There, the police found $23,020 under the brother's bed, in bills of various denominations, tied with hair bands. In a written statement to the police, Roberts's brother denied any knowledge or ownership of the money. …The money recovered from the Archer address was taken to the Carrollton Police Station, where Officer Sanchez conducted another sniff search. This time, he took three new paper bags and put the money in one of them. Each bag was closed by folding over the top and all three bags were placed in a hallway about six feet apart. Bosko sniffed all three bags and alerted on the sack containing the money.” The trial court found Bosko’s sniff among other facts was enough to create a nexus between the money seized and the Marijuana to warrant an asset forfeiture where the government gets to keep the money. On appeal, the Fort Worth Court of Appeals held: “At trial, it was the State's burden to establish, by a preponderance of the evidence, a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity, which it may do by circumstantial evidence. …That is, the State must show that it must be more reasonable than not that the money was derived from the sale of controlled substances. Considering all the evidence in this case, we cannot say that the foregoing evidence is so weak or the evidence to the contrary is so overwhelming that the judgment should be set aside. See Garza, 395 S.W.2d at 823. …Accordingly, we hold that the evidence is factually sufficient to support the trial court's determination.” However, the potential of outlandishness of these claims concerning Bosko’s ability did not escape the notice of a couple of the justices in their dissenting opinion. They stated: “After the police seized the money from underneath the bed, it was taken, presumably, in a police unit that had transported drugs and drug users in the past— if police testimony of all the drugs found hidden behind the back seats of police units is to be believed— to the Carrollton police station, where Officer Sanchez put the money in one of three brand new paper bags. Again, one wonders how many drugs and drug users had been brought into the Carrollton police station before the cash in question arrived and how thoroughly either the police station or the police car was cleaned between seizures. Miraculously, the Amazing Bosko alerted on the sack containing the money. Apparently, Bosko had solved the case and provided Officer Sanchez the provenance of the money. Bosko " proved" to the police that Roberts owned the money and that it was contraband as proceeds from the sale of narcotics.” This indeed is an amazing dog!

Are Texas Hash Statutes Unconstitutionally Vague?

Recent discussions of current events have directed our attention to Texas Statutes purporting to prohibit the possession of so-called “Hash.” In the overwhelming majority of states, simple possession for small amounts of so-called “Hash” derived naturally from the Marijuana plant is treated exactly as possession of Marijuana, punishable as a misdemeanor. Even Oklahoma, known for their draconian drug laws merely treats so-called “Hash” the same as marijuana. Therefore, it comes as no surprise to me when cannabis consumers routinely react with shock, horror, and disbelief to learn they are being charged with a felony by simply possessing derivatives of their beloved plant. In Texas, possession of so-called “Hash” is classified as felony of varying degrees of severity, depending on how much so-called “Hash” is possessed by aggregate weigh.
The reason I am being really squishy on what exactly I mean by “Hash” is because I really don’t know the legal definition myself after reading it our Texas criminal statutes. Indeed, the definitions in the Criminal laws in all the states trying to distinguish components derived from only from the marijuana plant tend to get squishy. Could it be because a rose by any other name is still a rose?
The due process clause of the Fifth Amendment requires that criminal statutes give reasonably certain notice that an act has been made criminal before it is committed. Every person should be able to know with certainty when he or she is committing a crime. A statute is void when it is vague either as to what persons fall within the scope of the statute, what conduct is forbidden, or what punishment may be imposed. I believe we should now be asking if our Texas statutes pass constitutional this constitutional muster as they are written.
Texas Health and Safety Code Sec. 481.103 - Penalty Group 2, defines so-called “Hash” (although they do not call it that) as:
“Tetrahydrocannabinols, other than marijuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacology (goes on to list delta 1,3, 4, and 6 cis tetrahydrocannabinols and their optical isomers); compounds of these structures, regardless of numeric designation of atomic positions, since nomenclature of these substances is not internationally standardized.”
Well now, that certainly clears things up. That should give every citizen of normal intelligence fair and reasonable notice that beating or grinding the kief out of their misdemeanor quantity of Cannabis makes it a felony, right? In determining a statute's plain meaning, we read the words and phrases in context, and construe them according to the rules of grammar and common usage. Perhaps one of our grammatical scholars can tell us if other than marijuana being offset by commas is meant to exclude some form of marijuana that does not contain the same active components from which so-called “Hash” is derived naturally from the cannabis plant. Or can the definition still be fairly read to mean all forms of Tetrahydrocannabinols, whether synthetic or natural are excluded and therefore lawful.
This issue has been raised before. Back in 1974 the Texas Court of Criminal Appeals purported to address this very issue. In Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974) an appellant from Harris County challenged this language under then Section 4.02 of Texas Controlled Substances Act that said “Tetrahydrocannabinols other than marijuana and synthetic equivalents…” and the court went into a strained interpretation of the legislative intent of the statute and concluded that perhaps they should add these pesky commas, to offset and specifically exclude marijuana from so-called “Hash.” However it appears from the record this was a direct attack on the plain meaning of the statute rather than a challenge the statute itself was unconstitutionally vague. It is important to note in 1974 the court pointed to Schedule-1 which also then contained Tetrahydrocannabinols with an identical definition except the “other than marijuana” upon which they relied heavily on their interpretation of legislative intent that Texas meant to exclude marijuana and not the extracted active components. Tetrahydrocannabinols no longer appears in the lists of Texas Schedule-1 narcotics and are now only discussed in Schedule-2. Finally, in 1978 there was a direct Federal constitutional challenge on the vagueness of the statute arising out of the Western District of Texas. The 5th Circuit court of appeals held:
“By her petition for writ of habeas corpus appellant raised the issue presented here, that the Texas Controlled Substances Act is unconstitutionally vague because of its failure to give adequate notice of the proscription of and penalties for possession and delivery of hashish. The contention centers on the punctuation and structural make up of Section 4.02(c), Subsection N of the Texas Controlled Substances Act… Petitioner's attack on the statute under which she was convicted is without merit. The Petitioner has improperly read the statute, and under this reading, concluded that it does not encompass the activity in which she was engaged and that the way the statute was interpreted by the Texas Court of Criminal Appeals stretched it beyond its literal language, thus failing to give fair warning to the Petitioner. The statute, fairly read, gave notice to the Petitioner that her conduct was prohibited, even prior to its construction by the Texas Court of Criminal Appeals. Even more importantly, however, the Texas Court of Criminal Appeals had already construed the statute so as to reach the conduct in question prior to the date of the transaction. Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974). Thus, the criminal law in question was not so vague as to deny Petitioner her federal constitutional rights."
Rogers v. Estelle, 571 F.2d 1381 Here, the court totally dismissed the void for vagueness challenge based upon the prior holding in Texas that fair notice was given with the non-marijuana distinction then listed in Schedule-1. That distinction relied upon by the Court of Criminal Appeals no longer exist in Texas in the new Texas Health and Safety Code. And again, this was in 1978, where the public attitudes about marijuana were somewhat different than they are today. It is my opinion we should raise this challenge again when the right case comes along. Meanwhile, I guess we are all left with our gratitude that we have a government that would be so clear about the rules they use to lock their citizens away.
David B. Sloane, Attorney
DFW NORML Public Information Officer
http://www.sloanelaw.com

Possessing Grandpa's old Mossberg Shotgun can land you 10 years in prison under Federal Law if you smoke Marijuana

According to Congress, a person that uses cannabis for medical purposes or otherwise (illegal under Federal Law) effectively forfeits their right to keep and bear arms under the 2nd Amendment. 18 U.S.C. § 922(g) prohibits specified categories of persons from shipping or transporting in interstate or foreign commerce or from receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce or from possessing, in or affecting interstate commerce, any firearm or ammunition. A violation of 922(g) can lead to a maximum term of 10 years imprisonment, unless the statutory enhancements of the Armed Career Criminal Act apply.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person– …

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802));

…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has shipped or transported in any interstate or foreign commerce.

David Sloane, AttorneyDFW-NORML Public Information Officer
http://www.sloanelaw.com

Smugglers Blues

Beware in the Texas Panhandle: (Texas Counties: Potter, More, Hartley & Dallam)
In my Criminal Defense practice I am seeing some alarming trends in Police Drug Interdiction tactics in the Texas Panhandle with Colorado’s relaxation of their Marijuana laws. I am finding myself defending people in these areas more than ever before. The Texas Highway Patrol (Department of Public Safety) and a few local agencies have stepped-up and bolstered their drug interdiction tactics dramatically in the Texas Panhandle corridor leading from Colorado in an area primarily North and West of Amarillo. US Highway 87 running through Potter, Moore, Hartley, and Dallam Counties appears to be the areas where police are most active in their Drug Interdiction Efforts. With a great deal of success they are apprehending a number of person transporting varying amounts of Marijuana from Colorado into the State of Texas. Often with those caught with smaller quantities, the cannabis was still contained within packaging from a Colorado dispensary. It appears the percentage of vehicles being searched during "routine" traffic stops in this area clearly exceeds the national average, which normally runs about 5% of the number vehicles stopped resulting in a search. These searches appear to be roughly split 50/50 consensual and non-consensual with no marked differences with consent in the percentage of instances where Marijuana was found.

Police Interdiction Tactics:
The interdiction tactics being employed by Texas State Troopers appear for the most part are run-of-the-mill. Aggressive use of traffic enforcement to generate and exploit opportunities to search are generally employed such as stopping someone for exceeding the speed limit only by one or two miles an hour, or other minor moving or equipment violations. My personal favorite (certainly the most cleverly-amusing) is their use of a ‘rolling surveillance’ where in a marked patrol car they travel along in the outside lane 10-15 miles an hour UNDER the speed limit, just to see who DOESN'T have the nerve to pass them because they have a carload of Ganja. Once stopped they will ask the driver a series of questions requiring a “No” answer (such as “you don’t have anything in your car do you?”) to get the driver into a pattern of saying “No” and will then say “Oh, well then you won’t mind if I search?” Of course another way they freequently generate "reasonable suspicion" is asking a series of harmless sounding questions and looking for inconsistencies. (Where are you coming from? Where are you going? etc. This is NOT just small talk!) Virtually all non-consensual searches involving Marijuana arrests I’ve seen involve an officer claiming he smelled it. With the pungent smell of marijuana these days it no longer has to be burning to permeate the vehicle or an officer to recognize it. There is a reason they call it Dank. While stops of this nature are technically legal when they begin, they can become illegal when the depth and scope of the police inquiry and the length of detention exceeds what is reasonably necessary based upon the initial reason for the stop. For example, in the cases of a traffic violation the officer exceeds the time it takes for him to make his customary checks and issue the citation. (And he really has no business messing with the passengers in cases of an alleged traffic violation.) In cases of reasonable suspicion, the officer exceeds the time it should take for his suspicions to be refuted or confirmed via lawful means, and nothing has been said or done to raise more suspicions. An officer may not detain a motorist longer than is reasonably necessary to complete the investigation absent reasonable suspicion of additional criminal activity.

State and Federal Drug Criminal Prosecutions & Drug Asset Forfeitures:
It appears being caught with a small amount will land the person in jail on State charges and cash and asset forfeitures (such as the vehicle used.) However, the Federal authorities are very quick to adopt cases involving larger amounts; and those instances where a firearm was also found in the vehicle, which gives a Federal prosecutor an instant twenty-year bump under their statutes in the plea-bargain process. Nearly all of those caught small amounts of hash were shocked to learn they were being charged with a felony under the Texas statutes. My best advice to anyone vacationing in Colorado not coming back by way of Omaha is to say: “What happens in Colorado, stays in Colorado” if you aren’t planning on needing me.

http://www.sloanelaw.com

Required proof in possession cases.

Proximity possession cases (where the contraband is not found directly on a person, but rather, in their proximity in small amounts) are very weak at best for the prosecution UNTIL the person in question runs their mouth! The police aren’t just being smartasses when they fish for responses while brandishing the contraband with a “what have we here?” They’re wanting the person to give them evidence via verbal statement of knowledge the contraband was there, a required element of a possession offense. Merely being present at the scene where contraband is found does NOT make one guilty of possession! Admitting knowledge does!

Marijuana "420" Police Car a HIT!

NORML "420 Truth Enforcement" cop car has proven to be a tremendous hit with fans in the Dallas/Fort Worth metroplex. Sponsored by the Law Offices of David Sloane, the car was unveiled on May 7, 2011 during the world marijuana march held at the Dallas venue as seen here. David Sloane is a member the NORML National Legislative Committee and on the local DFW NORML board of directors.

This car has became one of the most photographed vehicles around. It cannot be driven or parked anywhere without people breaking out their camera phones. There was a great deal of trepidation as to how the REAL police in the area would respond. But Sloane says all in all the local police have been really good sports about it. Most are amused. Since hitting the road, the car has been stopped once by a Traffic Officer wanting to insure the light-bar did not violate any state or local laws prohibiting non-emergency vehicles from having flashing red or blue lights. Once he sae the lights were green, he was fine, and also asked if he could take pictures of the car.

If you have a local venue or event where you would like the NORML cop car to make the scene, or to arrange for one of our speakers for your group please contact us at http://dfwnorml.org. To contact Attorney David Sloane use the email link on his website at: http://www.sloanelaw.com

Attempting to Locate Witnesses - Lockdown incident at Texas Women's University. Please Help

I represent Christopher Gillette in his current difficulties with the law and Texas Women's University. I am attempting to locate student/witnesses that were present and personally heard the statements he made during his emotional outburst in a Government Class on Monday, March 1, 2011 on the campus of Texas Women's University shortly before his arrest. I am anxious to interview witnesses while their memory of exactly what was said is fresh. Likewise, I would ask them to PLEASE preserve any recordings or class notes made by them at the time of the incident or any communications in all forms (ie. Text messages, bulletins, etc.) received from the University concerning the incident. If you personally witnessed any of these events (or know anybody that did) please (have them) contact my office at 817-810-0088, or by email at davidsloanelaw@yahoo.com, or via private email through my facebook: http://www.facebook.com/profile.php?id=100001830517527

Thank you for any assistance you can provide.

David Sloane

Alan Sloane dies at 84

LAS VEGAS, NEVADA
Alan Price Sloane
Born October 29, 1926 ~ Passed on January 20, 2011

Alan was born and raised in Oxford, Ohio. He served in the Merchant Marine at the age of 17 (with his parents approval) during the closing days of World War II. He returned to Oxford and completed his degree at Miami University graduating in 1948. He was drafted and served in the Army during the Korean War. His professional broadcasting career spanned an extraordinary 60 years beginning with his first job as a radio DJ in Cleveland hosting a late night format with romantic music. His talent took him from Cleveland radio to a position in Dallas with WFAA-TV Channel-8 as their first Weather Anchor, and co-host of a television cooking show, to WWL-TV in New Orleans where he hosted a noon talk show with a "live" in-house band led by trumpet virtuoso Al Hurt. His next move was to WAGA-TV in Atlanta where his humor and style was noticed by a Hollywood talent scout who selected him to host a bi-centennial celebration of Margaret Mitchell's Gone With The Wind. The event, staged at the Loews Grand Theater, the site of the film's original premier in 1939. Alan introduced and interviewed David O. Selznick, Olivia deHavilland and dozens of visiting celebrities including actors George Murphy and Douglas Fairbanks, Jr.
Shortly after the event, he was offered an "on-air" position with KCOP-TV 13 in Los Angeles. During his tenure with KCOP he was the West Coast host of "The Advocate" and also hosted a variety of entertaining syndicated television shows produced by Bill Burrud Productions including the American West (featured in 102 markets nationally) and This Exciting World. In addition he hosted the original Los Angeles "Dialing For Dollars" show for KCOP for over 7 years. The highly poplar program (#2 in the market, just behind #1 "As The World Turns") was formatted as a daily one hour talk show from Noon to 1:00 p.m. featuring lively celebrity interviews with authors, actors, artists - a format that suited Alan's rapier wit and style. His busy schedule during those years also included hosting the annual "Holiday Lane Parade" coverage each Christmas, entertaining at VA hospitals and hundreds of personal appearances.
In 1969 Alan moved to KABC-TV 7 in Los Angeles where he was the weekday Weather Anchor for the 5, 6, and 11:00p.m. news broadcasts and also worked special assignments for ABC Sports. He served as Pit Announcer for the Can-Am auto race series - often flying the "red-eye" from L.A. to the East Coast, returning late Sunday nights in time for his Monday weather broadcasts.
Alan covered Track & Field events for ABC at the 1968 Olympics in Mexico City and the ill-fated 1972 Olympic in Munich. While at KABC-TV , he received two Emmy Nominations (1 award), and while at KCOP he was nominated three times and received 2 Emmys. He also made numerous appearances on the popular "Love Boat" television show and appeared in national commercials for Ford Thunderbird and Kraft Cheez Whiz.
After a management shakeup at KABC, Alan created a Business Travel Weather show concept. He was able to convince American Airlines of the show's merit. He then offered the complete package to the then fledgling national "Financial News Network" (now MSNBC). He went on-air at the Network in 1982 as National Weather Anchor with his daily early morning and mid-afternoon Business and Agricultural Weather shows which also included interviews with business newsmakers. After six years with the network, Alan decided to retire - for the first time - and relocated to Las Vegas in 1988. He had often covered Las Vegas news stories for KABC, including the infamous MGM fire. So, he was well acquainted with the area. Within less than a year of retiring, he was approached by the local NBC Affiliate, KVBC-TV 3 to work part-time as the station's Weekend Weather Anchor. A year later, the station's primary weekday Weather Anchor abruptly left and Alan took over the position, working full time for the next 7 years! He also hosted a half-hour weekend program titled "Action Seniors". He retired, again, in 1997, but continued to be active - developing and hosting a weekly radio show titled "FYI The Radio Show" in Las Vegas.
Alan relocated to Carmel Valley in September, 2008 and subsequently hosted a weekly television show "Choices" at Noon on the NBC affiliate KSBW-TV 8. The show was sponsored by Monterey based Choice Home Health Care.
From his 20's into his 80's, Alan continued to be an intuitive interviewer, charming and literate, always putting his guests at ease, and knowing instinctively how to draw them into a lively conversation for the audience.
These are only a few of the highlights of a life lived to the fullest.
Alan is survived by his wife Lynne, sister Ann Leech (Canton, Ohio)
sons Lance (Studio City, CA.), Devin (Bhusto Arsizio, Italy), David (Fort Worth, Texas) daughter Gail Munger (Indianapolis, Indiana) - Grandchildren; Ryder, Jack, Matteo, Marco and Leonardo Sloane, and Joshua and Rebekah Munger
Services are scheduled for January 29, 2011 at The Lakes Lutheran Church - 8200 W. Sahara, Las Vegas, Nevada. A Celebration of Life follows at Red Rock Country Club in Las Vegas.
In lieu of flowers, donations may be made to the Alfred Price Sloane Scholarship at Miami University in Oxford, Ohio. The family is currently organizing the scholarship through the Alumni Association.

Fort Worth DWI No Refusal Weekend

New Year's Eve starts a "No Refusal" weekend in Dallas Fort Worth.

Law enforcement officials are saying for drivers, that means if a driver is pulled over on suspicion of DWI and they refuse the standard field sobriety test, officers will place them under arrest. Frankly, this more disinformation for the media because this has always been the case (being arrested when they refuse.) Drivers should continue to stand on the rights to refuse breath and blood test.

County and Municipal jails in the Dallas Fort Worth area had judges on site over the holiday to sign search warrants, as well as having a nurse available to draw blood for the purposes of determining if a driver is legally intoxicated. Some smaller police departments took those arrested directly to hospitals for blood samples after the warrant was signed.

Alcohol-related fatalities are the commonly stated reason behind the "No Refusal Law." However I have seen no evidence it makes a difference.

Citizen videotapes police misconduct

Know your Rights-Just say NO to illegal Police Searches in Fort Worth.

Know Your Rights on DWI in Fort Worth

Ways to avoid a DWI

How To Protect Your Rights During A DWI Traffic Stop in the Fort Worth area.

Let's dispense with the obvious. If you're drunk, then don't drive. Don't drive, because you don't want to hurt someone else or yourself. Don't drive, because you don't want to smash up your car or damage someone else's property. And finally, don't drive, because you don't want to get arrested, lose your license, pay huge fines, have your insurance go through the roof and perhaps even lose your job.

That said, let's move to the real world where you do not have to drive drunk to be arrested and found guilty of drunk driving. This is the world that says any person with virtually any amount of alcohol in their system is a candidate for a drunk-driving citation and 100% responsible for any accident that may occur, regardless of who caused the accident. This is not an exaggeration, and you should not assume that because you drink and drive in a responsible manner that you are immune from the "drunk-driver" label and the consequences of a drunk-driving conviction.

If you drink and drive in the Fort Worth area, no matter how conservatively, there is a real possibility that you could be stopped, arrested, and convicted of drunk driving. First, most people do not realize how few drinks it takes to exceed the legal standards of .08 % or .1 % Blood Alcohol Content (BAC). For the average sized person, three or four drinks could easily place them in the "drunk-driver" category. However, based solely on a police officer's claim that you were "impaired," even though your BAC was below the legal threshold, you can be convicted as a drunk driver. The only additional evidence needed would be proof of some measurable amount of alcohol in your system.

Is this fair? No. Is it right? No. Does this improve highway safety? No. In fact, it detracts from highway safety.

How do you avoid being caught up in a DWI nightmare in Tarrant County? Well, you could avoid drinking and driving altogether. That means no beer after the ball game, no wine with your meal, no drinking at holiday parties, sticking to soft drinks at wedding receptions, no meeting your friends after work for a drink and socializing. You get the picture. However, if you choose to drink and drive, there are a number of things you can do to lesson the likelihood of being stopped and charged with a drunk-driving violation.

Your Vehicle

Police officers in the Fort Worth area need an excuse to stop a vehicle; there must be some probable violation to justify stopping your vehicle. Frankly, they can always come up with an excuse to stop any vehicle they want to -- a dirty license plate is a violation. But, if given the choice, they will stop the vehicles with the most obvious violations. Speeding, failing to use signals, rolling through a stop sign or driving with burned out lights are common justifications for stopping a motorist. Most of these are controllable items or situations.

For example, once every two or three weeks turn on all the lights on your vehicles(s). Check both headlight beams, taillights, clearance lights, brake lights and turn signals. And don't forget the license plate light (this is a favorite!) Your headlights should be properly aimed, also. Make sure your license plates are properly affixed and readable.

Darkly tinted windows, loud exhaust pipes, broken lenses, unrepaired body damage and cracked windows all serve as the necessary excuse to stop a vehicle.

If the vehicle you are driving is registered in the name of someone who has been convicted of drunk driving it would be wise to not drink and drive in that vehicle. Police officers spend large amounts of time riding around reading license plate numbers into a central computer. When they find a vehicle licensed to someone convicted of drunk driving, especially late at night, they will always find an excuse to pull that car over.

Traffic Laws

Obviously, violating traffic laws in the Fort Worth area or elsewhere is a good way to attract the attention of police officers. At the same time, driving below an already under posted speed limit, signaling a turn a half a mile before turning or not taking your turn at a stop sign will also attract attention. It is virtually impossible to drive more than a mile or two without violating some arcane traffic law. If you have the option of pulling into a parking lot or otherwise avoid having a patrol car follow you for a long distance there will be less likelihood of being stopped for a traffic violation. Making sure to wear your seat belt is one way to convey an aura of "safety."

Driving Time And Place in the Fort Worth area

The chances of being stopped under a variety of pretenses at "bar time" are fairly high. However, the police are also attuned to special events like festivals, sports contests, large wedding receptions, church picnics and company parties. Enforcement may be intensified in these environments. If you are moving with traffic and your vehicle is well maintained and not "standing out" for any reason, you are much more likely not to be stopped for enforcement purposes.

If you have alternative routes that you can take to your destination, particularly in the later evening, that avoid those areas with the largest concentrations of taverns, bars and nightclubs, you will also be avoiding the largest concentration of enforcement activity. Taking the longer, less traveled route may turn out to be a short cut in the long run!

You've Been Stopped by the police after drinking, Now What?

Despite your best efforts, a just-burned-out headlight has given a police officer an excuse to stop you. Under other circumstances you might welcome being told about your failed headlight before you left the lighted city streets. But, you have been drinking, not in excess, but drinking never the less. What should you do?

First, always keep documents like your registration and insurance card in a readily accessible location. You do not want to have to fish through your glove box, or worse, to not find these documents when you need them. When the blue lights go on, find a safe place to pull over, always on the right side of the road whenever possible. Next, turn your dome light on and place both your hands on the steering wheel where the police officer can see them. This makes him more comfortable about his safety and conveys a sense of personal control on your part. If the opportunity presents itself, it's best to roll down your window and vent the passenger compartment of accumulated odors prior to actually stopping.

Be courteous, but admit to nothing. If the officer asks if you have been drinking return his question with a question, "would you like to see my license?" or "why do you ask?" Do not admit to drinking so much as one beer. You are under no obligation to give the officer any information beyond that on your driver's license. Your admission to drinking gives the officer "cause" to pursue the matter further. Without that admission he must base his decision on pursuing a DWI arrest on your driving, or mannerisms after the stop. A burned-out headlight is not an indication of impairment and neither is a refusal to chitchat about your night's events.

If he decides to push the issue, he may ask you to step out of your vehicle, which the courts say is permissible. He may ask you to perform certain tests, "just to prove you're capable of driving safely." Do not perform any of these tests. You are not required to perform these tests and there is no penalty for refusal. The ONLY reason these tests are given is to give the officer justification to require you to take a chemical test (breath, blood or urine) to determine your Blood Alcohol Content, BAC and of course more and better ammunition in court. These encounters are nearly always being videotaped. No one ever "passes" one of these roadside sobriety tests, not even the "soberest" of the sober.

Texas does require a driver to submit to a chemical test, or face administrative driver's license penalties. However, the police officer must have at least "reasonable suspicion" that you are impaired by alcohol to legally ask you to take one of the chemical tests. If you show no obvious signs of intoxication, have made no admission to drinking and have performed no tests that he can claim you performed inadequately, his grounds for forcing the testing are limited to the way you were driving and your present(unmanipulated)demeanor. If your drinking has not been clearly excessive, neither your driving nor your demeanor should support reasonable suspicion to demand a chemical BAC test. The only common defense for refusing to take a chemical test is that the officer did not have a lawful reason to stop you or probable cause to require the test. Refusal to participate in the charade of a roadside sobriety test in the Fort Worth area are not probable cause to require a chemical test.

If you are not "drunk," it is usually advantageous to you to have the stop recorded on a video camera. Most police cars in Tarrant, Parker, Wise, Denton, and Dallas County are equipped with video cameras for just this purpose. However, police officers will sometimes avoid turning the camera on if they think the resulting documentation will detract from the possibility of a conviction. Ask the officer if his car has a video camera and if he has it turned on. If he does not have the camera turned on and you believe it would be advantageous to your defense, ask him to turn it on, that you want the stop recorded. This sends a message that you are not afraid to have your mannerisms and demeanor judged by an impartial judge or jury. It's very difficult for a police officer in the Fort Worth area to claim your "speech was slurred" or that you were "staggering" when you got out of the car when a video film shows a composed articulate defendant being interrogated on an unlit roadside by a uniformed, gun-toting agent of the law.

If you notice that the officer is intent on sticking a flashlight in your face or in your car, it is probably because the flashlight is equipped with an electronic alcohol sensor that detects the presence of alcohol. Texas Alcohol Beverage Control Agents (I call them Liquor-Dicks are notorious for having these devices.) You do not have to accept this "probing." You can instruct the officer to keep the device away from your face and out of your vehicle. He is free to look into your vehicle, but only from the exterior, unless he requests to search your vehicle. NEVER voluntarily permit a search of your vehicle. To search your car, depending on the jurisdiction, an officer must have probable cause or at least reasonable suspicion, a suspicion he must be able to explain in terms of what he is looking for and why he believes he will find this specific illegal item in your vehicle. There is absolutely no good that can come to you by voluntarily allowing the police to search your vehicle.

Another pre-screening test that falls in and out of favor in DWI Arrest in the Fort Worth area is called the nystagmus test. By shining a flashlight in the drivers eyes and instructing the driver to scan left and right the officer looks for a jerking eye motion that is sometimes an indication of intoxication. It takes training and experience on the part of the police officer to perform this test. In reality, jerky eye movement or not, the officer can say he performed the test, detected the telltale eye movement, and therefore felt justified in ordering the defendant to take a chemical test. Again, you do not have to take the nystagmus test and should refuse to do so. Just as with the other pre-screening tests, the only reason they are conducted is to justify requiring a chemical test and to build a case against the defendant.

Will your refusals to cooperate with the officer's requests for pre-screening tests irritate the officer? Yes, they probably will. But, keep in mind that if he asked you to take these tests he has already decided to find a way to justify requiring you to take a mandated chemical test. There is no good reason for you to assist him in this effort. Furthermore, if he senses a lawsuit in the making, if he falsely arrests you for drunk driving, he might just decide to find an easier target to fulfill his nightly quota.

Of equal importance, without the additional evidence that the pre-screening tests provide, or pretend to provide, the prosecution will find it very difficult to make a case against you, if your BAC is close to the legal limit, or below.

Despite all evidence to the contrary, if the officer decides a chemical test is justified you typically have three choices of test procedures: Breathalyzer, urine test, or blood test. Frequently, the police will use a Breathalyzer test for the initial screening. However, you are almost always guaranteed the option of taking one of the other two tests, at your request. Of course you have the right to refuse ALL of them and absolutely should if you have any doubt what the results may be.

The Breathalyzer is the most inaccurate means of measuring your BAC. These devices are pretty much garbage. Without going into great detail, it should be understood that the error factor can be as high as 50 %. If the Breathalyzer generates a reading that confirms your BAC is within legal limits, you should be free to leave. If the Breathalyzer test results indicate an illegal BAC, you should immediately request one of the two other tests, the most accurate of which is the blood test. If the police refuse to assist you in obtaining a second test, demand an opportunity to obtain a second test, even if it must be at your own expense.

A legitimate police stop for a suspected drunk-driving incident does not have to rely on trick questions, sensing devices, or gimmicks to justify a chemical test of the driver. The driver's lack of control of the vehicle, his inability to reasonably react to questions and requests, and his physical reactions will be a dead give-away of his impaired condition. Unfortunately, the government, certain commercial interests, and self-serving organizations have institutionalized a negative stereotype of anyone who drinks and drives, no matter how responsibly. By labeling virtually all drivers who drink and drive as "drunk drivers," they have created a situation where responsible and constructive citizens are at risk of suffering huge fines, exorbitant insurance charges, loss of driving licenses, confiscation of personal property, and even incarceration, all for the singular act of violating an arbitrary and unreasonable BAC standard.

If you have been arrested for DWI in Tarrant, Parker, Wise, Denton or Dallas county and need an experienced criminal defense lawyer give me a call!

NORML - Attorney David Sloane to use Medical “Necessity” as Defense to Prosecution in Marijuana Possession case.

WEATHERFORD, TEXAS - On September 30, 2010 detectives from Weatherford Police Department appeared at the residence of a 52-year-old Weatherford man who smokes marijuana to alleviate his suffering from diabetic neuropathy with severe symptoms including chronic pain and insomnia. He has done so with the full knowledge and support of his physicians claiming they could not provide him with the synthetic substitute Marinol because it was heavily regulated and reserved for Cancer and HIV patients. The detectives told the man they had received “a tip” that he was growing marijuana on the premises. Once inside they found one cannabis plant growing and approximate 1.5 ounces of cannabis already harvested. Whether this case will be prosecuted as a misdemeanor or a felony is yet to be determined depending on the dried weight of the cannabis seized.

Fort Worth Attorney David Sloane says he intends to raise the defense of necessity as well as other procedural and constitutional grounds in defending this case. Sloane is a legislative committee member for the National Organization of Reform of Marijuana Laws (NORML) and an officer of the local DFW NORML chapter. Sloane says fifteen states now recognize the medical need and necessity of lawful marijuana use. A 2009 Texas bill that would have allowed seriously ill patients to raise a medical necessity defense to the specific offense of marijuana possession died in committee. Sloane said he sees no problem proceeding without this legislation under these circumstances. Texas penal law already provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs…the harm sought to be prevented by the law proscribing the conduct. “ Had the 2009 bill passed it might have curtailed number of needless arrest of medical patients here in Texas but that doesn’t mean the common and statutory defenses and justifications for all offenses aren’t still available to us in the courts.

I must admit I was a little intimidated in trying this even though my repeated application of the facts to the law in this case told me this is what I should do. I had never even heard of anyone else trying it here Sloane said. But then I found a case from Amarillo with substantially similar facts where it took the jury eleven-minutes to find a marijuana patient not guilty when they were given the opportunity to consider his medical necessity. I have gone from believing it would be a long-shot to believing it would be malpractice not to raise it in defending a medical marijuana patient with what appears to be a genuine need. Sloane said if the Texas legislature wants to continue dragging their heels by ignoring the medical needs of their citizens that’s fine I guess. But I’m going to do my job. And I’m hoping these judges and juries will do theirs.

University of Florida Taser Incident

Cute Video

Small Marijuana growers oppose corporate Hydrophonic farms.

A proposal to create four large-scale marijuana factories in Oakland has touched off a turf war in the lucrative market for medicinal marijuana. Established local merchants are trying to hold their ground against entrepreneurs who are seeking to gain a foothold in the rapidly evolving industry.

A nonprofit, nonpartisan news organization providing local coverage of the San Francisco Bay Area for The New York Times. To join the conversation about this article, go to http://www.baycitizen.org.

Under the proposal, which will be debated by the City Council on Tuesday, Oakland would issue four permits to operate the factories, which are currently not limited in size or scale. One would-be applicant is planning a 7.4-acre complex that could produce over 21,000 pounds of marijuana a year.

Based on current prices, such a factory would generate about $60 million in annual revenue, more than twice the gross receipts for Oakland’s four medical marijuana dispensaries last year.

Taxes on cannabis cultivation and sales could generate millions of dollars for Oakland, once the program is up and running, and create hundreds of jobs, according to supporters. The ordinance — written by Councilwoman Rebecca Kaplan, who is also a mayoral candidate, and Councilman Larry Reid — would also require the factories to pay a $211,000 “regulatory fee.”

“I think it’s a total win-win for everyone,” Ms. Kaplan said last week, after the Public Safety Committee voted 3 to 1 on Tuesday to send the cultivation ordinance to the full City Council.

The proposal is creating discord between businesses seeking to preserve the status quo and others who are trying to carve out new businesses in advance of Proposition 19, a November ballot measure that would legalize marijuana for adult recreational use in California.

“It’s big business; you’re talking about manufacturing gold,” said Jeff Jones, a longtime marijuana activist working with the legalization effort. “There’s going to be stakeholders, different opinions and different approaches, which lead to bickering like in any other marketplace.”

One of the most vocal critics of the cultivation proposal is Stephen DeAngelo, executive director of Harborside Health Center, the largest medical marijuana dispensary in the world. With outlets in Oakland and San Jose, Harborside has 58,000 members, or patients, who can buy dozens of strains of marijuana packaged in vacuum-sealed bags or in edible forms ranging from cookies to gelato.

The dispensary receives its marijuana from about 400 member/suppliers who deliver one or two pounds of cannabis at a time. Allowing large-scale production in Oakland would crowd out those small growers, according to Harborside officials and the dispensary’s lawyer.

“Why does this whole new system have to be created?” Mr. DeAngelo asked in an interview. “Let’s bring these citizen farmers out of the shadows and into the light and give them a role in this new industry.”

Jeff Wilcox, a Bay Area businessman, is an outspoken proponent of the industrial pot permits as well as a leading advocate for the Proposition 19 initiative. Mr. Wilcox is hoping to obtain one of the four permits to build AgraMed, a marijuana production complex on 7.4 acres beside Interstate 880 near Oakland International Airport.

AgraMed would include a bakery to create edible forms of marijuana, a lab to test for potency and contaminants and 100,000 square feet of cultivation space. If he obtains a permit, Mr. Wilcox said, he will offer to lease space to smaller growers.

James Anthony, a lawyer for Harborside, said Mr. Wilcox was a “Johnny-come-lately” motivated by profit, not by the desire to help patients who use marijuana for medical reasons.

Mr. Wilcox responded that Harborside and its supporters had been “sitting in the back just waiting.”

“They started this campaign of lies to kill the cultivation permits,” he said.

Mr. DeAngelo said he was not opposed to the Oakland plan, but wanted to see a permit process that would benefit smaller growers, an opinion that was echoed by many Tuesday at the meeting of the Public Safety Committee.

Oakland is known as a marijuana-friendly city, but friendliness was sometimes in short supply last week as Council members heard hours of contentious public comment on the proposed ordinance.

The Council chambers were filled with members of the Bay Area cannabis industry: dispensary owners, lawyers specializing in medical-marijuana law, would-be permit applicants, subcontractors who see the proposed factories as a means to expand their businesses and growers of all stripes.

A nonprofit, nonpartisan news organization providing local coverage of the San Francisco Bay Area for The New York Times. To join the conversation about this article, go to http://www.baycitizen.org. Some expressed concern that allowing industrial marijuana factories would drive down prices and squeeze out local cultivators.

“I think this ordinance is nothing more than a municipally sanctioned monopoly on medical cannabis,” one grower told the committee.

In a compromise effort, Vice Mayor Jean Quan and Councilwoman Patricia Kernighan suggested that Ms. Kaplan and Mr. Reid devise a similar permit process for medium-sized facilities. Those new rules will be up for discussion in September, but in the meantime, some growers worry that they are being run out of business.

“It’s politics,” said Dan Grace, who runs a 3,000-square-foot nursery for young pot plants called clones. “All you can count on is what we have now, and what we have now is not a process that allows for medium-sized growers.”

Councilwoman Nancy Nadel drew some applause from the audience when she raised concerns that the cultivation ordinance was not legal under state or federal law. “I don’t see any rush to do this until we know what happens in November,” Ms. Nadel said, referring to the ballot initiative.

Ms. Quan warned, however, that if Oakland did not act quickly, other cities could seize the opportunity to become a hub for the expanding medical-marijuana industry. “I want Oakland to be in place, so I want to move this out,” she said.

The debate was heated in part because the proposed ordinance has gone through several revisions, and rumors have swirled about the regulations. City Council members said they received a flood of calls amid concerns that all dispensaries would be required to buy marijuana from the industrial facilities. But that is not a requirement.

Until recently, cultivation of medical marijuana has not been closely regulated in any California cities.

“Our real goal is to eliminate a lot of the public problems stemming from illegal and unregulated cultivation,” said Dhar Mann, an Oakland businessman who plans to apply for one of the permits if the proposal passes.

A report attached to the proposal said residential electrical fires in Oakland rose from 133 in 2006 to 290 in 2009, a spike, it said, “likely attributable to cannabis cultivation.” There were also eight robberies, seven burglaries and two homicides linked to marijuana growing, the report said.

Mr. Mann, 26, owns a 15,000-square-foot hydroponic supply store called iGrow, which will soon open franchises in eight states. He recently scouted another large-scale warehouse with an architect and security contractor in the hope of growing marijuana there.

If he receives a permit, Mr. Mann said, he will outfit the building with solar panels, a grass roof and a state-of-the-art security system.

New Jersy to become 15th State recognizing Medical Marijuana...yet the Feds STILL list it as Schedule 1 Narcotis as having "no medical use."

Five months before its new medical marijuana law is set to take effect, New Jersey this week moved further away from having answers to basic questions about how the law will work — specifically, who will grow the marijuana and who will dispense it.

Chris Christie’s administration had been pursuing a plan to make Rutgers University the only approved cultivator of cannabis, and to make teaching hospitals the only places where patients could get it.

But on Thursday, Rutgers announced that it would not participate for fear of losing grants from the federal government. State officials said the hospitals had the same concern.

State laws legalizing medical marijuana are at odds with federal law. The Obama administration has stopped the practice of raiding marijuana dispensaries in those states, but the Drug Enforcement Administration remains reluctant to grant permission to grow the plants, even for medical research.

“This is genuinely something we were interested in doing,” said Robert M. Goodman, the executive dean of agriculture and natural resources at Rutgers. “We have agricultural stations; we have programs in medicinally reactive plants, in chemical biology, in pharmacy. It’s a potential new crop for the state, and we’re interested in promoting the state’s economy.”

But, he added, “it just puts too much at risk,” jeopardizing research grants, contracts, student aid or other funds from Washington.

Fourteen states have passed laws allowing medical use of marijuana, but New Jersey’s, signed in January, is in some ways the strictest. The law was written to prevent the proliferation of growers and dispensaries seen in states like California and Colorado, at first limiting the state to six dispensaries run by nonprofits, and it prohibits patients from growing the plants themselves.

New Jersey allows doctors to prescribe marijuana only for patients with terminal illness or a fairly limited set of specific, chronic conditions, and limits each person to two ounces per month, compared with as much as 24 ounces in other states.

Governor Christie, a Republican who took office days after the law was enacted, has sought to make it still more restrictive in the way it is carried out. The administration is supposed to put regulations in place for carrying out the law by Oct. 1, and the law is scheduled to go into effect on Jan. 1.

Michael Drewniak, the governor’s chief spokesman, said Friday that the administration still expected to have dispensaries ready to open in 2011.

“As we’ve said all along, we’ve been considering other options beyond the Rutgers plan,” Mr. Drewniak said, “and we will continue working diligently to implement a high-quality and secure program.” He declined to elaborate.

The governor is angry about the university’s decision, according to officials who were granted anonymity to comment on private discussions, and so are some legislators. Assemblyman Reed Gusciora, a Democrat from Mercer County who was one of the primary sponsors of the legalization bill, said “the university is chickening out” by not testing federal authorities’ willingness to grant a waiver.

State Senator Nicholas P. Scutari, a Democrat from Linden who was the other main sponsor, said that Mr. Christie wanted too much control over the program and that the state would have no choice but to approve private growers.

“We’ve known this was going to be a concern for Rutgers from the get-go, but the administration indicated no, it’s not going to be a problem,” Mr. Scutari said. And the hospitals, he said, “have got the same exact issue.”

The New Jersey Council of Teaching Hospitals declined to comment, but several people briefed on the discussions said the hospitals wanted some kind of guarantee that they would not be jeopardizing federal money.

Mr. Christie has said he had concerns about how to carry out the law with enough security. At his request, the Legislature delayed putting the law into effect for 90 days.

The plan to use Rutgers and teaching hospitals would have given the state far more direct control over the program than the Legislature intended, but for the most part, lawmakers said they were amenable to the idea if it would work.

Veteran's Hospitals easing rules on Medical Marijuana us will not affect hosptals in Fort Worth, Texas

DENVER — The Department of Veterans Affairs will formally allow patients treated at its hospitals and clinics to use medical marijuana in states where it is legal, a policy clarification that veterans have sought for several years.

A department directive, expected to take effect next week, resolves the conflict in veterans facilities between federal law, which outlaws marijuana, and the 14 states that allow medicinal use of the drug, effectively deferring to the states.

The policy will not permit department doctors to prescribe marijuana. But it will address the concern of many patients who use the drug that they could lose access to their prescription pain medication if caught.

Under department rules, veterans can be denied pain medications if they are found to be using illegal drugs. Until now, the department had no written exception for medical marijuana.

This has led many patients to distrust their doctors, veterans say. With doctors and patients pressing the veterans department for formal guidance, agency officials began drafting a policy last fall.

“When states start legalizing marijuana we are put in a bit of a unique position because as a federal agency, we are beholden to federal law,” said Dr. Robert Jesse, the principal deputy under secretary for health in the veterans department.

At the same time, Dr. Jesse said, “We didn’t want patients who were legally using marijuana to be administratively denied access to pain management programs.”

The new, written policy applies only to veterans using medical marijuana in states where it is legal. Doctors may still modify a veteran’s treatment plan if the veteran is using marijuana, or decide not to prescribe pain medicine altogether if there is a risk of a drug interaction. But that decision will be made on a case-by-case basis, not as blanket policy, Dr. Jesse said.

Though veterans of the Vietnam War were the first group to use marijuana widely for medical purposes, the population of veterans using it now spans generations, said Michael Krawitz, executive director of Veterans for Medical Marijuana Access, which worked with the department on formulating a policy.

Veterans, some of whom have been at the forefront of the medical marijuana movement, praised the department’s decision. They say cannabis helps soothe physical and psychological pain and can alleviate the side effects of some treatments.

“By creating a directive on medical marijuana, the V.A. ensures that throughout its vast hospital network, it will be well understood that legal medical marijuana use will not be the basis for the denial of services,” Mr. Krawitz said.

Although the Obama administration has not embraced medical marijuana, last October, in a policy shift, the Justice Department announced that it would not prosecute people who used or distributed it in states where it was legal.

Laura Sweeney, a spokeswoman for the Justice Department, would not comment spefically on the veterans department policy. “What we have said in the past, and what we have said for a while, is that we are going to focus our federal resources on large scale drug traffickers,” she said. “We are not going to focus on individual cancer patients or something of the like.”

Many clinicians already prescribe pain medication to veterans who use medical marijuana, as there was no rule explicitly prohibiting them from doing so, despite the federal marijuana laws.

Advocates of medical marijuana use say that in the past, the patchwork of veterans hospitals and clinics around the country were sometimes unclear how to deal with veterans who needed pain medications and were legally using medical marijuana. The department’s emphasis on keeping patients off illegal drugs and from abusing their medication “gave many practitioners the feeling that they are supposed to police marijuana out of the system,” Mr. Krawitz said.

“Many medical-marijuana-using veterans have just abandoned the V.A. hospital system completely for this reason,” he said, “and others that stay in the system feel that they are not able to trust that their doctor will be working in their best interests.”

In rare cases, veterans have been told that they need to stop using marijuana, even if it is legal, or risk losing their prescription medicine, Mr. Krawitz said.

David Fox, 58, an Army veteran from Pompey’s Pillar, Mont., uses medical marijuana legally to help quiet the pain he experiences from neuropathy, a nerve disorder. But he said he was told this year by a doctor at a veterans’ clinic in Billings that if he did not stop using marijuana, he would no longer get the pain medication he was also prescribed.

A letter written to Mr. Fox in April from Robin Korogi, the director of the veterans health care system in Montana, explained that the department did not want to prescribe pain medicine in combination with marijuana because there was no evidence that marijuana worked for noncancer patients and because the combination was unsafe.

“In those states where medical marijuana is legal, the patient will need to make a choice as to which medication they choose to use for their chronic pain,” Ms. Korogi wrote. “However, it is not medically appropriate to expect that a V.A. physician will prescribe narcotics while the patient is taking marijuana.”

Mr. Fox was shocked by the decision, he said.

“I felt literally abandoned,” he said. “I still needed my pain meds. I thought they were supposed to treat you. It was devastating for me.”

Mr. Fox, who said that at one point he was weaning himself off his pain medication for fear of running out, has held one-man protests in front of the clinic, carrying signs that read “Abandoned by V.A., Refused Treatment.”

Veterans officials would not comment on specific cases, citing medical privacy laws.

This month, Dr. Robert A. Petzel, the under secretary for health for the veterans department, sent a letter to Mr. Krawitz laying out the department’s policy. If a veteran obtains and uses medical marijuana in accordance with state law, Dr. Petzel wrote, he should not be precluded from receiving opioids for pain management at a veterans facility.

Dr. Petzel also said that pain management agreements between clinicians and patients, which are used as guidelines for courses of treatment, “should draw a clear distinction between the use of illegal drugs, and legal medical marijuana.”

Dr. Jesse, the veterans department official, said that formalizing rules on medical marijuana would eliminate any future confusion and keep patients from being squeezed between state and federal law.

Steve Fox, director of government relations for the Marijuana Policy Project, which favors the legal regulation of the drug, called the decision historic. “We now have a branch of the federal government accepting marijuana as a legal medicine,” he said.

But Mr. Fox said he wished the policy had been extended to veterans who lived in states where medical marijuana was not legal.

He said it was critical that the veterans department make its guidelines clear to patients and medical staff members, something officials said they planned on doing in coming weeks.

Said Dr. Jesse, “The whole goal of issuing a national policy is to make sure we have uniformity across the system.”

Why is Marijuana Illegal? An Insightful History of the Criminalization of Marijuana

According to an insightful article i found in the history of marijuana laws, I found the following article at drugwarrant.com. Why is Marijuana Illegal?

7000-8000 B.C.

First woven fabric believed to be from hemp.
1619

Jamestown Colony, Virginia passes law requiring farmers to grow hemp.
1700s

Hemp was the primary crop grown by George Washington at Mount Vernon, and a secondary crop grown by Thomas Jefferson at Monticello.
1884

Maine is the first state to outlaw alcohol.
1906

Pure Food and Drug Act is passed, forming the Food and Drug Administration. First time that drugs have any government oversight.
1913

California, apparently, passes the first state marijuana law, though missed by many because it referred to “preparations of hemp, or loco weed.”

1914

Harrison Act passed, outlawing opiates and cocaine (taxing scheme)
1915

Utah passes state anti-marijuana law.
1919

18th Amendment to the Constitution (alcohol prohibition) is ratified.
1930

Harry J. Anslinger given control of the new Federal Bureau of Narcotics (he remains in the position until 1962)
1933

21st Amendment to the Constitution is ratified, repealing alcohol prohibition.
1937

Marijuana Tax Act
1938

Food, Drug and Cosmetic Act
1951

Boggs Amendment to the Harrison Narcotic Act (mandatory sentences)
1956

Narcotics Control Act adds more severe penalties
1970

Comprehensive Drug Abuse Prevention and Control Act.
Replaces and updates all previous laws concerning narcotics and other dangerous drugs. Empasis on law enforcement. Includes the Controlled Substances Act, where marijuana is classified a Schedule 1 drug (reserved for the most dangerous drugs that have no recognized medical use).
1972

Drug Abuse Office and Treatment Act.
Establishes federally funded programs for prevention and treatment
1973

Drug Enforcement Administration (DEA)
Changes Bureau of Narcotics and Dangerous Drugs into the DEA
1974 and 1978

Drug Abuse Treatment and Control Amendments. Extends 1972 act
1988

Anti-Drug Abuse Act.
Establishes oversight office: National Office of Drug Control Policy and the Drug Czar
1992

ADAMHA Reorganization.
Transfers NIDA, NIMH, and NIAAA to NIH and incorporates ADAMHA’s programs into the Substance Abuse and Mental Health Services Administration (SAMHSA) Many people assume that marijuana was made illegal through some kind of process involving scientific, medical, and government hearings; that it was to protect the citizens from what was determined to be a dangerous drug.

The actual story shows a much different picture. Those who voted on the legal fate of this plant never had the facts, but were dependent on information supplied by those who had a specific agenda to deceive lawmakers. You’ll see below that the very first federal vote to prohibit marijuana was based entirely on a documented lie on the floor of the Senate.

You’ll also see that the history of marijuana’s criminalization is filled with:

Racism
Fear
Protection of Corporate Profits
Yellow Journalism
Ignorant, Incompetent, and/or Corrupt Legislators
Personal Career Advancement and Greed
These are the actual reasons marijuana is illegal.


Background

For most of human history, marijuana has been completely legal. It’s not a recently discovered plant, nor is it a long-standing law. Marijuana has been illegal for less than 1% of the time that it’s been in use. Its known uses go back further than 7,000 B.C. and it was legal as recently as when Ronald Reagan was a boy.

The marijuana (hemp) plant, of course, has an incredible number of uses. The earliest known woven fabric was apparently of hemp, and over the centuries the plant was used for food, incense, cloth, rope, and much more. This adds to some of the confusion over its introduction in the United States, as the plant was well known from the early 1600’s, but did not reach public awareness as a recreational drug until the early 1900’s.

America’s first marijuana law was enacted at Jamestown Colony, Virginia in 1619. It was a law “ordering” all farmers to grow Indian hempseed. There were several other “must grow” laws over the next 200 years (you could be jailed for not growing hemp during times of shortage in Virginia between 1763 and 1767), and during most of that time, hemp was legal tender (you could even pay your taxes with hemp — try that today!) Hemp was such a critical crop for a number of purposes (including essential war requirements – rope, etc.) that the government went out of its way to encourage growth.

The United States Census of 1850 counted 8,327 hemp “plantations” (minimum 2,000-acre farm) growing cannabis hemp for cloth, canvas and even the cordage used for baling cotton.

The Mexican Connection

In the early 1900s, the western states developed significant tensions regarding the influx of Mexican-Americans. The revolution in Mexico in 1910 spilled over the border, with General Pershing’s army clashing with bandit Pancho Villa. Later in that decade, bad feelings developed between the small farmer and the large farms that used cheaper Mexican labor. Then, the depression came and increased tensions, as jobs and welfare resources became scarce.

One of the “differences” seized upon during this time was the fact that many Mexicans smoked marijuana and had brought the plant with them, and it was through this that California apparently passed the first state marijuana law, outlawing “preparations of hemp, or loco weed.”

However, one of the first state laws outlawing marijuana may have been influenced, not just by Mexicans using the drug, but, oddly enough, because of Mormons using it. Mormons who traveled to Mexico in 1910 came back to Salt Lake City with marijuana. The church’s reaction to this may have contributed to the state’s marijuana law. (Note: the source for this speculation is from articles by Charles Whitebread, Professor of Law at USC Law School in a paper for the Virginia Law Review, and a speech to the California Judges Association (sourced below). Mormon blogger Ardis Parshall disputes this.)

Other states quickly followed suit with marijuana prohibition laws, including Wyoming (1915), Texas (1919), Iowa (1923), Nevada (1923), Oregon (1923), Washington (1923), Arkansas (1923), and Nebraska (1927). These laws tended to be specifically targeted against the Mexican-American population.

When Montana outlawed marijuana in 1927, the Butte Montana Standard reported a legislator’s comment: “When some beet field peon takes a few traces of this stuff… he thinks he has just been elected president of Mexico, so he starts out to execute all his political enemies.” In Texas, a senator said on the floor of the Senate: “All Mexicans are crazy, and this stuff [marijuana] is what makes them crazy.”

Jazz and Assassins

In the eastern states, the “problem” was attributed to a combination of Latin Americans and black jazz musicians. Marijuana and jazz traveled from New Orleans to Chicago, and then to Harlem, where marijuana became an indispensable part of the music scene, even entering the language of the black hits of the time (Louis Armstrong’s “Muggles”, Cab Calloway’s “That Funny Reefer Man”, Fats Waller’s “Viper’s Drag”).

Again, racism was part of the charge against marijuana, as newspapers in 1934 editorialized: “Marihuana influences Negroes to look at white people in the eye, step on white men’s shadows and look at a white woman twice.”

Two other fear-tactic rumors started to spread: one, that Mexicans, Blacks and other foreigners were snaring white children with marijuana; and two, the story of the “assassins.” Early stories of Marco Polo had told of “hasheesh-eaters” or hashashin, from which derived the term “assassin.” In the original stories, these professional killers were given large doses of hashish and brought to the ruler’s garden (to give them a glimpse of the paradise that awaited them upon successful completion of their mission). Then, after the effects of the drug disappeared, the assassin would fulfill his ruler’s wishes with cool, calculating loyalty.

By the 1930s, the story had changed. Dr. A. E. Fossier wrote in the 1931 New Orleans Medical and Surgical Journal: “Under the influence of hashish those fanatics would madly rush at their enemies, and ruthlessly massacre every one within their grasp.” Within a very short time, marijuana started being linked to violent behavior.

Alcohol Prohibition and Federal Approaches to Drug Prohibition

During this time, the United States was also dealing with alcohol prohibition, which lasted from 1919 to 1933. Alcohol prohibition was extremely visible and debated at all levels, while drug laws were passed without the general public’s knowledge. National alcohol prohibition happened through the mechanism of an amendment to the constitution.

Earlier (1914), the Harrison Act was passed, which provided federal tax penalties for opiates and cocaine.

The federal approach is important. It was considered at the time that the federal government did not have the constitutional power to outlaw alcohol or drugs. It is because of this that alcohol prohibition required a constitutional amendment.

At that time in our country’s history, the judiciary regularly placed the tenth amendment in the path of congressional regulation of “local” affairs, and direct regulation of medical practice was considered beyond congressional power under the commerce clause (since then, both provisions have been weakened so far as to have almost no meaning).

Since drugs could not be outlawed at the federal level, the decision was made to use federal taxes as a way around the restriction. In the Harrison Act, legal uses of opiates and cocaine were taxed (supposedly as a revenue need by the federal government, which is the only way it would hold up in the courts), and those who didn’t follow the law found themselves in trouble with the treasury department.

In 1930, a new division in the Treasury Department was established — the Federal Bureau of Narcotics — and Harry J. Anslinger was named director. This, if anything, marked the beginning of the all-out war against marijuana.

Anslinger was an extremely ambitious man, and he recognized the Bureau of Narcotics as an amazing career opportunity — a new government agency with the opportunity to define both the problem and the solution. He immediately realized that opiates and cocaine wouldn’t be enough to help build his agency, so he latched on to marijuana and started to work on making it illegal at the federal level.

Anslinger immediately drew upon the themes of racism and violence to draw national attention to the problem he wanted to create. He also promoted and frequently read from “Gore Files” — wild reefer-madness-style exploitation tales of ax murderers on marijuana and sex and… Negroes. Here are some quotes that have been widely attributed to Anslinger and his Gore Files:

“There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”

“…the primary reason to outlaw marijuana is its effect on the degenerate races.”

“Marijuana is an addictive drug which produces in its users insanity, criminality, and death.”

“Reefer makes darkies think they’re as good as white men.”

“Marihuana leads to pacifism and communist brainwashing”

“You smoke a joint and you’re likely to kill your brother.”

“Marijuana is the most violence-causing drug in the history of mankind.”
And he loved to pull out his own version of the “assassin” definition:

“In the year 1090, there was founded in Persia the religious and military order of the Assassins, whose history is one of cruelty, barbarity, and murder, and for good reason: the members were confirmed users of hashish, or marihuana, and it is from the Arabs’ ‘hashashin’ that we have the English word ‘assassin.’”

Yellow Journalism

Harry Anslinger got some additional help from William Randolf Hearst, owner of a huge chain of newspapers. Hearst had lots of reasons to help. First, he hated Mexicans. Second, he had invested heavily in the timber industry to support his newspaper chain and didn’t want to see the development of hemp paper in competition. Third, he had lost 800,000 acres of timberland to Pancho Villa, so he hated Mexicans. Fourth, telling lurid lies about Mexicans (and the devil marijuana weed causing violence) sold newspapers, making him rich.

Some samples from the San Francisco Examiner:

“Marihuana makes fiends of boys in thirty days — Hashish goads users to bloodlust.”

“By the tons it is coming into this country — the deadly, dreadful poison that racks and tears not only the body, but the very heart and soul of every human being who once becomes a slave to it in any of its cruel and devastating forms…. Marihuana is a short cut to the insane asylum. Smoke marihuana cigarettes for a month and what was once your brain will be nothing but a storehouse of horrid specters. Hasheesh makes a murderer who kills for the love of killing out of the mildest mannered man who ever laughed at the idea that any habit could ever get him….”
And other nationwide columns…

“Users of marijuana become STIMULATED as they inhale the drug and are LIKELY TO DO ANYTHING. Most crimes of violence in this section, especially in country districts are laid to users of that drug.”

“Was it marijuana, the new Mexican drug, that nerved the murderous arm of Clara Phillips when she hammered out her victim’s life in Los Angeles?… THREE-FOURTHS OF THE CRIMES of violence in this country today are committed by DOPE SLAVES — that is a matter of cold record.”
Hearst and Anslinger were then supported by Dupont chemical company and various pharmaceutical companies in the effort to outlaw cannabis. Dupont had patented nylon, and wanted hemp removed as competition. The pharmaceutical companies could neither identify nor standardize cannabis dosages, and besides, with cannabis, folks could grow their own medicine and not have to purchase it from large companies.

This all set the stage for…

The Marijuana Tax Act of 1937.

After two years of secret planning, Anslinger brought his plan to Congress — complete with a scrapbook full of sensational Hearst editorials, stories of ax murderers who had supposedly smoked marijuana, and racial slurs.

It was a remarkably short set of hearings.

The one fly in Anslinger’s ointment was the appearance by Dr. William C. Woodward, Legislative Council of the American Medical Association.

Woodward started by slamming Harry Anslinger and the Bureau of Narcotics for distorting earlier AMA statements that had nothing to do with marijuana and making them appear to be AMA endorsement for Anslinger’s view.

He also reproached the legislature and the Bureau for using the term marijuana in the legislation and not publicizing it as a bill about cannabis or hemp. At this point, marijuana (or marihuana) was a sensationalist word used to refer to Mexicans smoking a drug and had not been connected in most people’s minds to the existing cannabis/hemp plant. Thus, many who had legitimate reasons to oppose the bill weren’t even aware of it.

Woodward went on to state that the AMA was opposed to the legislation and further questioned the approach of the hearings, coming close to outright accusation of misconduct by Anslinger and the committee:

“That there is a certain amount of narcotic addiction of an objectionable character no one will deny. The newspapers have called attention to it so prominently that there must be some grounds for [their] statements [even Woodward was partially taken in by Hearst's propaganda]. It has surprised me, however, that the facts on which these statements have been based have not been brought before this committee by competent primary evidence. We are referred to newspaper publications concerning the prevalence of marihuana addiction. We are told that the use of marihuana causes crime.

But yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marihuana habit. An informed inquiry shows that the Bureau of Prisons has no evidence on that point.

You have been told that school children are great users of marihuana cigarettes. No one has been summoned from the Children’s Bureau to show the nature and extent of the habit, among children.

Inquiry of the Children’s Bureau shows that they have had no occasion to investigate it and know nothing particularly of it.

Inquiry of the Office of Education— and they certainly should know something of the prevalence of the habit among the school children of the country, if there is a prevalent habit— indicates that they have had no occasion to investigate and know nothing of it.

Moreover, there is in the Treasury Department itself, the Public Health Service, with its Division of Mental Hygiene. The Division of Mental Hygiene was, in the first place, the Division of Narcotics. It was converted into the Division of Mental Hygiene, I think, about 1930. That particular Bureau has control at the present time of the narcotics farms that were created about 1929 or 1930 and came into operation a few years later. No one has been summoned from that Bureau to give evidence on that point.

Informal inquiry by me indicates that they have had no record of any marihuana of Cannabis addicts who have ever been committed to those farms.

The bureau of Public Health Service has also a division of pharmacology. If you desire evidence as to the pharmacology of Cannabis, that obviously is the place where you can get direct and primary evidence, rather than the indirect hearsay evidence.”
Committee members then proceeded to attack Dr. Woodward, questioning his motives in opposing the legislation. Even the Chairman joined in:

The Chairman: If you want to advise us on legislation, you ought to come here with some constructive proposals, rather than criticism, rather than trying to throw obstacles in the way of something that the Federal Government is trying to do. It has not only an unselfish motive in this, but they have a serious responsibility.

Dr. Woodward: We cannot understand yet, Mr. Chairman, why this bill should have been prepared in secret for 2 years without any intimation, even, to the profession, that it was being prepared.
After some further bantering…

The Chairman: I would like to read a quotation from a recent editorial in the Washington Times:

The marihuana cigarette is one of the most insidious of all forms of dope, largely because of the failure of the public to understand its fatal qualities.

The Nation is almost defenseless against it, having no Federal laws to cope with it and virtually no organized campaign for combating it.

The result is tragic.

School children are the prey of peddlers who infest school neighborhoods.

High school boys and girls buy the destructive weed without knowledge of its capacity of harm, and conscienceless dealers sell it with impunity.

This is a national problem, and it must have national attention.

The fatal marihuana cigarette must be recognized as a deadly drug, and American children must be protected against it.
That is a pretty severe indictment. They say it is a national question and that it requires effective legislation. Of course, in a general way, you have responded to all of these statements; but that indicates very clearly that it is an evil of such magnitude that it is recognized by the press of the country as such.
And that was basically it. Yellow journalism won over medical science.

The committee passed the legislation on. And on the floor of the house, the entire discussion was:

Member from upstate New York: “Mr. Speaker, what is this bill about?”

Speaker Rayburn: “I don’t know. It has something to do with a thing called marihuana. I think it’s a narcotic of some kind.”

“Mr. Speaker, does the American Medical Association support this bill?”

Member on the committee jumps up and says: “Their Doctor Wentworth[sic] came down here. They support this bill 100 percent.”
And on the basis of that lie, on August 2, 1937, marijuana became illegal at the federal level.

The entire coverage in the New York Times: “President Roosevelt signed today a bill to curb traffic in the narcotic, marihuana, through heavy taxes on transactions.”

Anslinger as precursor to the Drug Czars

Anslinger was essentially the first Drug Czar. Even though the term didn’t exist until William Bennett’s position as director of the White House Office of National Drug Policy, Anslinger acted in a similar fashion. In fact, there are some amazing parallels between Anslinger and the current Drug Czar John Walters. Both had kind of a carte blanche to go around demonizing drugs and drug users. Both had resources and a large public podium for their voice to be heard and to promote their personal agenda. Both lied constantly, often when it was unnecessary. Both were racists. Both had the ear of lawmakers, and both realized that they could persuade legislators and others based on lies, particularly if they could co-opt the media into squelching or downplaying any opposition views.

Anslinger even had the ability to circumvent the First Amendment. He banned the Canadian movie “Drug Addict,” a 1946 documentary that realistically depicted the drug addicts and law enforcement efforts. He even tried to get Canada to ban the movie in their own country, or failing that, to prevent U.S. citizens from seeing the movie in Canada. Canada refused. (Today, Drug Czar John Walters is trying to bully Canada into keeping harsh marijuana laws.)

Anslinger had 37 years to solidify the propaganda and stifle opposition. The lies continued the entire time (although the stories would adjust — the 21 year old Florida boy who killed his family of five got younger each time he told it). In 1961, he looked back at his efforts:

“Much of the most irrational juvenile violence and that has written a new chapter of shame and tragedy is traceable directly to this hemp intoxication. A gang of boys tear the clothes from two school girls and rape the screaming girls, one boy after the other. A sixteen-year-old kills his entire family of five in Florida, a man in Minnesota puts a bullet through the head of a stranger on the road; in Colorado husband tries to shoot his wife, kills her grandmother instead and then kills himself. Every one of these crimes had been proceeded [sic] by the smoking of one or more marijuana “reefers.” As the marijuana situation grew worse, I knew action had to be taken to get the proper legislation passed. By 1937 under my direction, the Bureau launched two important steps First, a legislative plan to seek from Congress a new law that would place marijuana and its distribution directly under federal control. Second, on radio and at major forums, such that presented annually by the New York Herald Tribune, I told the story of this evil weed of the fields and river beds and roadsides. I wrote articles for magazines; our agents gave hundreds of lectures to parents, educators, social and civic leaders. In network broadcasts I reported on the growing list of crimes, including murder and rape. I described the nature of marijuana and its close kinship to hashish. I continued to hammer at the facts.

I believe we did a thorough job, for the public was alerted and the laws to protect them were passed, both nationally and at the state level. We also brought under control the wild growing marijuana in this country. Working with local authorities, we cleaned up hundreds of acres of marijuana and we uprooted plants sprouting along the roadsides.”
After Anslinger

On a break from college in the 70s, I was visiting a church in rural Illinois. There in the literature racks in the back of the church was a lurid pamphlet about the evils of marijuana — all the old reefer madness propaganda about how it caused insanity and murder. I approached the minister and said “You can’t have this in your church. It’s all lies, and the church shouldn’t be about promoting lies.” Fortunately, my dad believed me, and he had the material removed. He didn’t even know how it got there. But without me speaking up, neither he nor the other members of the church had any reason NOT to believe what the pamphlet said. The propaganda machine had been that effective.

The narrative since then has been a continual litany of:

Politicians wanting to appear tough on crime and passing tougher penalties
Constant increases in spending on law enforcement and prisons
Racist application of drug laws
Taxpayer funded propaganda
Stifling of opposition speech
Political contributions from corporations that profit from marijuana being illegal (pharmaceuticals, alcohol, etc.)
… but that’s another whole story.


--------------------------------------------------------------------------------
Interlude…





--------------------------------------------------------------------------------

This account only scratches the surface of the story. If you want to know more about the history of marijuana, Harry Anslinger, and the saga of criminalization in the United States and elsewhere, visit some of the excellent links below. (All data and quotes for this piece came from these sources as well).

• The History of the Non-Medical Use of Drugs in the United States by Charles Whitebread, Professor of Law, USC Law School. A Speech to the California Judges Association 1995 annual conference.

• THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION by
Richard J. Bonnie & Charles H. Whitebread, II. VIRGINIA LAW REVIEW. VOLUME 56 OCTOBER 1970 NUMBER 6

• The Consumers Union Report – Licit and Illicit Drugs
by Edward M. Brecher and the Editors of Consumer Reports Magazine

• The History of the Marihuana Tax Act of 1937
By David F. Musto, M.D., New Haven, Conn.
Originally published in Arch. Gen. Psychiat. Volume 26, February, 1972

• The Report of the National Commission on Marihuana and Drug Abuse
I. Control of Marihuana, Alcohol and Tobacco.
History of Marihuana Legislation

• The Marihuana Tax Act of 1937.
The history of how the Marihuana Tax Act came to be the law of the land.

• Marijuana – The First Twelve Thousand Years by Ernest L. Abel, 1980