Driving under the Influence of Marijuana and the state of the law

Here in Pennsylvania, medical marijuana is about to become legal, so clearly our legislature will have to address that with the DUI laws which currently prohibits any amount of marijuana to be in your blood when you drive, even if you smoked it weeks earlier. So far, they’ve done nothing. It may take a few appeals from defense attorneys like me before that happens.

Years ago, that law was challenged but the Pennsylvania Supreme Court held that since marijuana was illegal, and since driving is a privilege and not a right, that you could be charged even if the amount in your system was minimal.marijuana-laws

I’ve been waiting for a client to come in and tell me she smoked in Colorado or somewhere else where it’s legal and then got pulled over in Pennsylvania days later and charged with a DUI for marijuana. I could then argue that the first part of the argument for our DUI laws was invalid because the marijuana was legal at the time smoked.

Realistically, though, if you’re not under the influence of it days later, you probably wouldn’t get pulled over anyway since you’re not showing any signs of being under the influence. A cop can’t demand you take a blood test without some sort of reasonable suspicion that you’re under the influence, even if you look like a stoner.

Where it still comes into play, though, is in situations like this: Let’s say you have had a beer and the cop smells alcohol on your breath and then makes you take a blood test. The blood test shows that your Blood Alcohol Count is .07% which is legal and under the DUI limits but the test also shows a presence of marijuana that you smoked days earlier. Now he can charge you, and in Pennsylvania the presence of drugs carries a harsher penalty than just alcohol. Technically and scientifically, you were “under the influence” of neither but legally, you were for marijuana. And that’s where the problem lies.

Remember that even when marijuana becomes legal, it will still be illegal to drive under its influence. Hell, it’s illegal to drive under the influence of cough syrup if it affects your driving.

Even in Colorado, you can’t drive while under the influence. However, their law (as I understand it) says what the limits have to be in your system, just like the law does now with alcohol. A small amount isn’t enough.

I bring this all up because of a recent decision in Arizona that held that simply having marijuana in your system is insufficient for a DUI conviction absent a showing of some sort of driving impairment. In other words, even if the amount shows that you just smoked it, if there is no evidence that your driving was impaired, you can’t be charged.  (This is unlike the “per se” alcohol laws that say if you have more than .08% in your system you can be charged even if your driving was perfect.)

Ironically, I have mixed feelings on this, as I have previously argued in favor of lowering the Blood Alcohol levels from .08% to .05% as it is in most of the rest of the world (as long as the penalty is non-criminal and minor). I personally believe that there should be a level for marijuana as well, even though I don’t know what that level should be.

Should you talk to the police?


That was easy!

Oh, fine. Let me go into a little more detail.

If you are the victim of a crime or need assistance in any way, absolutely talk to the police. But that’s not what this question is really asking. If there is any way that you might possibly be considered as a criminal, should you talk to the police (without a lawyer)? The answer is always no.shut-up

The main reason is that people just don’t know when they should or should not talk. So it’s better to just not talk in all situations.

Will it help you to talk to the police sometimes in these situations? Only if you have an air-tight alibi. (“I was in Europe all week, here’s my passport.”) The problem is that many people think what they say will help, and it doesn’t.

“If I explain to the cop why I hit the guy, he’ll certainly understand and not charge me” will not help you.

“Yes, I was there but I wasn’t involved with any of those guys” just gave the police half of what they need.

“I only had two beers, so surely the cop will understand that I’m not really drunk if I tell him that” isn’t in your best interest to say. (And don’t call him Shirley.)

It’s not your job to prove yourself innocent. It’s their job to prove you guilty. They need to prove that you were there, that you did something, and that the something you did was against the law. If you say, “Yes, I was there that night, but that didn’t happen” you’ve already made 50% of the case for them.

Remember: the police are trained to get confessions. That makes their job so much easier when that happens (and makes my job so much harder). Note that I said they are trained to get confessions. That’s not the same thing as saying they are trained to get the truth.

Look, I’m a trial lawyer. I’m trained to get confessions in a different way. I look at the statements made by officers and witnesses and look for errors, mistakes, misunderstandings, and lies. And I will use what you said against you at trial whenever I can. You’ll have to explain why you said what you did when you did. You think the District Attorney isn’t going to do the same thing to you, the defendant? Why give the DA the ammunition needed for that?

No, remain silent, as is your Constitutional right. Provide your name and address and identification if asked; don’t argue with the officer; don’t talk about your rights; remain polite and calm. Let the lawyer do the arguing for you later.

If nothing else, by not talking, I can work out a better deal for you if you have to plead to a crime. If you’ve already given the police everything they need, I have nothing to negotiate with on my side; nothing I can offer in exchange for a better deal.

The best legal advice I can give anyone is really quite simple:

Shut up!

Criminal defense attorneys support crime!

There’s a new meme out there against Hillary Clinton which is full of lies, false quotes, and misleading information but that’s nothing new. (You can read about it on Snopes if you wish). The part that bothers me is this:

It criticizes her for representing a criminal when she was a young defense attorney and calls her an “advocate for rapists.”justice

This is the kind of attack we’ve seen before, usually from conservatives. It’s sad that I am seeing my liberal friends post this crap.

Conservatives who say things like that are hypocrites who say they love America while hating one of the very reasons the Founding Fathers fought the revolution: To rebel against a government that ignored basic rights. They put those rights in the first Ten Amendments: The right to counsel, the right to remain silent, the right to not be searched without a warrant and probable cause, the right to be free from cruel and unusual punishment — more than half of the Bill of Rights are about criminal rights.

And what’s to prevent the government from abusing these rights? Why, it’s defense attorneys.

But when we hold police responsible for illegal searches or argue that our clients’ rights are being abused, what do people say? “Oh, he got off on a technicality.” Yes, a technicality called the United States Constitution — the very foundation of our nation.

This is like the people who demand that freedom of speech be denied to speech they disagree with while defending that same right for themselves. Our freedoms are meaningless if they don’t apply to everyone, even people we hate.

Look, most of the people I represent are guilty of something. 95% of all cases end up with a plea. My job is to make sure that the innocent are defended and the guilty don’t have their rights denied or otherwise get screwed by the system.

This is patriotic. This is exactly what the Founding Fathers intended. This is what makes America great — that we, the people, can stand up to a powerful government that does wrong and can win without resorting to violence.

To imply that a defense attorney performing his or her job “supports crime” is an insult not just to attorneys, but to all Americans.



Don’t Listen to Republicans telling you the Democrats do the Same Thing

Republican Senators announced today that they would refuse to even consider anyone Obama nominates for the Supreme Court, despite the fact that the President has almost an entire year left in his term. (Apparently, in their minds, Obama only gets 3/5ths of a term).

This is completely unprecedented.w936uez3tdwl6tlcz20y (1)

But hey, don’t let facts stand in your way, Republicans. You never have before.

I’ve certainly seen a lot of it recently.

First, they claimed that Senator Chuck Schumer had given a speech where he said that the Senate should not approve of a Bush nominee in his final year. Of course, all you have to do is read the transcript of that speech to see that the comment was followed by “except in extraordinary circumstances” — and then he explained that the Senate should not approve someone so far out of the mainstream as to be unacceptable.

In other words, the Senate should do its job, have hearings, but should exercise its Constitutional duty to deny a candidate they disagree with.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

Then they pointed out how Obama had objected to Justice Alito when he was a Senator, and had threatened a filibuster over it. Yet the Senate still had hearings about the candidate and ultimately did approve him.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

Then they found a quote from Joe Biden which basically said that the Senate should not be a rubber-stamp and should refuse to accept any candidate they don’t think would be a good choice.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

And it goes on. The right wing blogs post articles about how the Democrats have stood up to Supreme Court nominees in the past, and then they feebly try to fool their gullible readers into thinking this is the same thing as refusing to even hold hearings on any candidate.

It’s sad that some of my more intelligent conservative friends fall for this bullshit, but that’s what it is. There is no way to compare the Senate’s legitimate function to “advise and consent” and even to reject nominees they don’t want with the current Republican policy of sticking their fingers in their ears and saying “Lalalalala I can’t hear you” concerning any candidate.




The Illuminati Killed Scalia!

All the evidence is there, clearly. How can you sheeple not see it? It must be the chemtrails Obama is spraying into the air.

Look, Obama wanted him dead and we all know Obama runs the Illuminati (I mean, I don’t think I need to go into the obvious evidence for that). antonin_scalia3-620x412And Obama is clever — he has a lot of enemies, and he is throwing us off his track by having someone near the bottom of his enemies list killed instead of ones at the top! Further, instead of having Scalia killed near the start of Obama’s term in order to prevent Scalia from voting against Obama’s wishes (as he has done for seven years), he decided to wait until his term is almost up where the death does him the least amount of good!

What a distraction! Good thing we aren’t going to fall for that (mostly because our tinfoil hats prevent the chemtrails and hidden radio waves from brainwashing us).

Obama is even clever enough to plan this at a time when Scalia was surrounded by his friends instead of when he was alone in his home. Obviously, he used mind wave technology to make the friends hear Scalia say that he didn’t feel well just before he went to bed and then to have all of the friends not notice the ninja assassins creeping into Scalia’s bedroom. But we’re not fooled!

It’s perfect! It’s so perfect because absolutely no one, including his own family, thinks there was anything suspicious about an overweight 78-year old dying in his sleep, and so have they have not requested an autopsy.

Clearly Obama did this. Who else would want Scalia dead?

No. Wait. I just realized. Who would most want Scalia dead? Scalia, the “strict constructionalist” who could convince a majority of the court that someone born in Canada should not be considered a “natural born citizen” and thus ineligible to be President? Someone from Texas, maybe (where Scalia died)?

The plot thickens!

Why you should be happy Scalia’s gone

No, I am not celebrating Scalia’s death. I am celebrating him not being on the Court any more. I am happy that he can no longer cause harm. I would be just as happy had he merely resigned. CbIYxk6UAAAdFXX

Much of the problem with Scalia concerned his religious beliefs. He believed in a literal devil — that Satan was coercing other people to support gay rights and liberal politics. Since Scalia saw himself as doing God’s work, therefore anyone who held a different position from him was not only wrong, but evil. That is a dangerous and frankly unAmerican view for someone on the Supreme Court to have.

Intertwined with that was his conviction that not only should we consider what the Founding Fathers wanted when they wrote the Constitution, but his belief that he, and he alone, knew exactly what that was — and, amazingly, it always fit perfectly with his own views!

I’ve ranted against this kind of Constitutional fundamentalism before, pointing out that writing from the time clearly indicates that even the Founding Fathers disagreed. Hell, within a few years there were cases before the Supreme Court to determine the meaning of the Constitution because they couldn’t agree.

This attitude of “there is only one interpretation of the Constitution and it’s mine” falls squarely into his religious belief again, since he had the same view of the Bible.

And then for him to pretend that politics had nothing to do with his decisions! He’d claim to care about “state’s rights” unless a state wanted to manage its own electoral process (“but that could allow Gore to be President and we can’t have that!”). He’d say “we can’t overturn the decisions made by a democratically elected legislature” while striking down the Voting Rights Act passed by a huge majority. The only consistent thing about his decisions were his arrogant opinions that insulted everyone who disagreed with him.

But mostly I loathed the man for being so evil, so hateful of anyone different from him — for comparing gays to child molesters and saying blacks should attend lesser colleges because they’re not as smart as white people; for not caring if innocent people get executed; for arguing that discrimination against women was perfectly fine; for saying the sort of thing that, had he been head of the KKK (where he’d fit right in), you would all be saying “I’m glad he’s gone.”

Scalia is one of the main reasons that trust in the Supreme Court has dropped over the years. We used to hold our Court in high esteem, because they were the best and brightest, separate from politics, incorruptible. Then Scalia came along, thumbed his nose at Court ethics (claiming that he didn’t have to follow the same rules other federal judges follow concerning conflict-of-interest laws, “gifts” from people who had cases before the Court, and so on), insulted the other judges in his opinions, ranted publicly about “homosexual agendas” while commenting about upcoming cases, pushed the court to make political decisions like Bush v. Gore, and otherwise did everything he could to ruin hundreds of years of the Court’s image.

Damn right I’m glad he’s gone.



Another Sham Grand Jury

Is anyone really shocked that a DA persuaded yet another grand jury not to indict a police officer?

You can blame the jurors but I think the blame lies squarely on the DA’s shoulders, because Grand Juries are basically scams that allow the DA to subvert the system.

Most people don’t know what a Grand Jury is, so let’s clear that up first.*

There is a huge difference between a Grand Jury and a jury.  A jury is selected by a prosecutor and a defense attorney, who question each potential juror and have the right to remove any they think are possibly biased.  Then a trial that is open to the public is held. Both sides present evidence and witnesses. Both sides can cross examine and challenge anything the other side does.  A judge is presegrandjurynt to make sure it all runs fairly.  Both sides then give closing arguments summarizing their version of what happened.  And in order to find guilt, the jury needs  to be unanimous and convinced “beyond a reasonable doubt.”

A Grand Jury is none of those things. A Grand Jury is a group of citizens who have not been questioned about possible bias. A Grand Jury hearing is closed and secret and not open to the public. The DA presents whatever evidence he wants to without the worry that a defense attorney may cross-examine his witnesses or challenge his evidence. There is only one side presented. There is no judge. And then the only question the jurors have is whether there is enough evidence to send it to a real jury to determine guilt or innocence.

That is a very low burden to meet, which is why 99.99999% of all Grand Juries result in an indictment.

It would be much better if we didn’t call these things Grand Juries, because people hear “jury” and they think “trial.” There is no trial in a Grand Jury.

They’re scams. If a DA wants the Grand Jury to indict, he introduces only that evidence that supports his side and ignores all the evidence that does not. If the DA wants the Grand Jury not to indict, he does the opposite.

President of the Pennsylvania Association of Criminal Defense Lawyers (and friend) Jim Swetz pointed this out:  Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

So if a DA does not get an indictment, it pretty much means he had no intention of getting one — making the whole thing a political farce, done so he can fool people who don’t understand what a Grand Jury is to think that “justice was done.”

In every other country and in many of the states, Grand Juries are no longer used. And for good reason.

If the purpose is to determine whether there is enough evidence to bring a case forward, it’s much better to have a preliminary hearing instead, open to the public, where evidence can be challenged by a defense attorney and reviewed by an independent judge.

But DAs like Grand Juries because it gives them an advantage.

It allows them to put witnesses on the stand, under oath, without having to deal with defense attorneys objecting or judges stopping them from asking questions they are not supposed to be asking. And then they have advance notice of what witnesses will say at the preliminary hearing and at the trial. If a witness changes his or her testimony, the DA can whip out the transcript of the Grand Jury and impeach their testimony. It’s also a great way to grab up a bunch of suspects, get them under oath, and force them to testify so you can figure out who to charge for the main crime and who to charge with conspiracy.  (Note:  Defense lawyers are allowed to attend but can only advise their clients not to speak; we can’t object to questions or cross-examine.)

The rules here in Pennsylvania allow DAs to hold onto those transcripts of the preliminary hearing and not show the defense attorneys until the actual literal last minute. Seriously. I had a trial a while ago that lasted three weeks and after one of my witnesses took the stand, then the DA had to give me a copy of the transcript from the Grand Jury that he was going to use to impeach her during his cross-examination. The trial stopped for an hour while I and the other defense counsel rushed through reading it so we could “prepare.” No wonder DAs like that!

Grand Juries are a waste of taxpayer time and money, harking back to old English common law, predating the Constitution and the rights we usually take for granted (such as open hearings and the right to cross-examine).

Here’s what you need to remember: A Grand Jury is not an adversarial proceeding. It’s a government activity, run completely by the government. And in too many cases involving police abuses, the government investigated the government and decided that the government did nothing wrong.

And that should make everyone mad, liberal or conservative.

*Much of today’s post is copied from previous posts about Grand Juries, so forgive me for that