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Major Activist Charged with Transportation and Possession for Sale of Marijuana
Posted by: Rich Poland
March 11, 2008

   This story is long and winding.  In August of 2005, a Marijuana Activist was stopped at 3:00 a.m.  He was driving a distinctive vehicle which was similar to a vehicle used in a homicide the week prior in a neighboring town.  The police stopped the vehicle and when they asked the driver for his ID, he told them it was in his back pack which was in his trunk.  Upon opening the trunk and his backpack, the officers could see two marijuana pipes.  They inquired about marijuana and the driver said that he had some, but he had a medical mariuana card.  The officers found 6 baggies of marijuana.  Each baggie contained less than three grams, but the officers came to the conclusion that since there were six baggies, the driver must have been going to sell them.  He was arrested.  A case was not filed until 18 months after.  One of the factors tiping the scale in favor of filing a case, rather than permitting the possession was the fact that the Activist had a flyer in his backpack which indicated that "Medical Marijuana Slips were $100 and Hash, Buds, Clones".  It appeared as an advertisement for sale.

     The defense was that as an activist, my client wanted everyone to use MJ and wanted it to be legal. He provided a referral service only.  He never sold marijuana, but he encouraged its use and encouraged people to get med slips if they qualified.  He had referred several people to doctors and to marijuana dispensaries.

       We contested every part of the case.  A motion was made to dismiss because of the long delay.  Because of the delay, my client could not get proof of his purchases because the dispensary had gone out of business.  The judge reasoned that we did not show prejudice because we didn't know what the person we couldn't find was going to say. I explained to the judge that that was the problem. That was the prejudice and there was no justifiable reason for it.  The Judge was unmoved and the case went on.  We brought a motion to dismiss based on the illegal stop.  The police could never show any documentary evidence of a murder in the neighboring town which involved a distinctive vehicle.  The judge relied on the fact that the defendant was speeding to justify the stop and the search was deemed consensual.

         The DA's original offer was 120 days in jail and felony formal probation. This was rejected.  The next offer was 90 days. Also rejected. The "final" offer was no time and formal probation to charges that would remain felonies forever.  Rejected.  During the plea negotiations, the DA became aware of the Chakos case which holds that an ordinary police officer cannot testify as an expert in a medical marijuana case because he has no expertise in MEDICAL marijuana.  In our case, the DA was able to find a police officer who would say that he had sufficient experience to qualify as an expert.  He would opine that the fact that the marijuana was packaged in six separate baggies was sufficient to indicate that the marijuana was possessed for sale.  I thought this was a silly opinion, but coupled with the flyer and the background of the defendant, a conviction might be possible.

          The problem with a conviction was the spector of formal probation and testing.  Each drug test would show marijuana and would cause many court appearances for violations.  There is caselaw which indicates that medical marijuana is a valid drug and a person cannot be violated for taking prescription medicine. In addition, the reasons for the prescription are not relevant, in short, the court must take the doctor's diagnosis as fact and cannot practice medicine.  But there is always the problem of abusing the law--on both sides.

           Because the DA was hardworking and ethical, a solution was reached that benefited both sides. The defendant plead guilty to a possession of hashish as a felony which would be reduced to a misdemeanor in two years. The probation was informal--no probation officer, no cost, no testing.  When the case is reduced to a misdemeanor, it will be dismissed.  My client lives his life as normal.

            The reason he was arrested was because of the packaging. Pure and simple.  He had less than an ounce of MJ, but it was separated.  He said it was to keep the distinct "flavors" of marijuana, separate.  We had a marijuana expert who would say this was reasonable, but the fact that he carried six baggies around and two pipes was curious. 

             The lesson of this case is that if you're on medical marijuana, be careful what you transport.  The police are trained to be suspicious of any drugs possessed in quanties or packaging that looks like it is not for personal use.  An arrest and even a conviction are possible, even in cases where it is clear there are no sales.  A legal defense in a full blown drug trial can be expensive.  The best marijuan expert in the field charges $1,500 as a retainer and the trial fees can make the retainer a mere drop in the bucket.  There is a lot of downside risk to transporting more marijuana than you are going to use in a short period of time.

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