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Proposition 47: The Safe Neighborhood and Schools Act

election-buttonProposition 47, on this November's ballot, would bring sweeping changes to how various crimes in California are classified. If passed by California voters, Proposition 47 would reduce the classification of most "nonserious and nonviolent property and drug crimes" from a felony to a misdemeanor.

The single greatest area of impact this act would have is the reclassification of the personal use of most drugs from a felony to a misdemeanor. This, in and of itself, is a huge step in a positive direction, on a multitude of levels. Other crimes that would be reclassified as misdemeanors are: Shoplifting, where the value of property stolen does not exceed $950; grand theft, where the value of the stolen property does not exceed $950; receiving stolen property, where the value of the property does not exceed $950; forgery, where the value of forged check, bond or bill does not exceed $950; fraud, where the value of the fraudulent check, draft or order does not exceed $950; and writing a bad check, where the value of the check does not exceed $950.

Further, this act would allow for re-sentencing for anyone currently serving a prison sentence for the aforementioned crimes, which could be as many as 10,000 inmates. The act would require a "thorough review" of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.

However, one major caveat to the above relates to defendants who have prior convictions for murder, rape, certain sex offenses or certain gun crimes, as they can still receive felony sentencing for the above-enumerated crimes.

This measure could have a huge fiscal impact at the state and county level, with annual savings projected to be in the hundreds of millions of dollars. Savings at the state level would be passed on to school truancy and dropout prevention, mental health and substance abuse treatment, and victim services, where the money would generate exponentially greater utility than it would incarcerating individuals convicted of the above offenses.

While reservations about some aspects of this ballot measure, such as reclassifying the theft of a firearm costing less than $950 to a misdemeanor, have been expressed, it is important to remember that Proposition 47 is a minor tweak to California's Penal and Health & Safety Codes. The counter-argument to the above is that in the vast majority of cases, the theft of a firearm would also constitute burglary, which would remain felonious conduct, and anyone who breaks into a commercial building or residential dwelling to steal a firearm, still faces the potential of a felony strike conviction, depending on the facts of the case.

On the whole, I think Proposition 47 is a major step in the right direction from both a fiscal and moral perspective, especially as it relates to the personal use of controlled substances, and how we penalize such conduct.


People v. Baniani: A Huge Win for California's Medical Marijuana Patients and Collectives- Law Office of Scott C. Thomas Press Release

Santa-Ana-Court-of-AppealsOn August 22, 2014, the Court of Appeal, Fourth District, Division Three, rendered a landmark opinion in support of the rights of qualified patients and collectives in having an affirmative defense under California's Medical Marijuana Program Act (MMPA).

Attorney Scott C. Thomas, of the Law Office of Scott C. Thomas, and Attorney Christopher Glew, of the Law Offices of Glew & Kim, were appellate counsel on the matter.

According to Mr. Thomas, "This is a landmark ruling which affirms the rights of qualified patients, who are members of a collective, to have a defense under the MMPA. No longer can prosecutors make the argument that anytime money is exchanged for marijuana, between members of a collective, the defenses afforded under the MMPA are voided because any monetary transactions are per se unlawful, or that these transactions constitute a 'profit,' in violation of the law. The case clearly spells out that anytime a criminal defendant raises a reasonable doubt as to his or her qualified patient status, they are afforded a defense under the MMPA, and the question of whether or not the collective made a profit is a question for the jury, not the trial judge, to decide."

"This decision is another giant step toward legitimacy for medical marijuana patients," said Mr. Glew. "It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws."

Baniani, the founder of Herbal Run, a medical marijuana collective in Newport Beach, CA, was represented by Mr. Glew during his first trial, and was afforded a defense under the MMPA. Accordingly,the jury on his first trial hung on both the sale of marijuana, and possession of marijuana for sale, charges. At Mr. Banianai's second trial, the trial court denied Mr. Baniani a defense under the MMPA, because the court found that there was evidence Mr. Baniani charged for marijuana. Mr. Baniani was subsequently convicted of possession of marijuana for sale.

The Court of Appeal reversed the trial court's ruling, with regard to the denial of a defense under the MMPA, and remanded it for a new trial, agreeing with appellate counsel's assertion that the denial of a defense under the MMPA was erroneous and prejudicial to Mr. Baniani, especially in light of the fact that at Mr. Baniani's first trial, when he was afforded a defense under the MMPA, the jury hung on both counts.

"This victory follows in the steps of the Colvin and Jackson decisions, and will put an end to prosecutors arguing that qualified patients, who collectively associate to cultivate marijuana, are not afforded a defense under the MMPA. Now prosecutors will have to put the issue before a jury, who will receive an MMPA affirmative defense jury instruction, and prove their case beyond a reasonable doubt. It's a big win for the medical marijuana community," said Mr. Thomas.

Case reference number G048535 (Super. Ct. No. 10HF1852)


Know Your Rights

Coachella-five-weekends

If you've ever watched "Cops," you've heard the phrase, "Anything you say can, and will, be used against you, in a court of law." With Weekend 1 of Coachella right around the corner, I thought it might be helpful to give you all a quick rundown of what your rights are, and how to invoke them, should you find yourself being questioned by the police.

First off, do not initiate contact with the police. Why? Well, once you initiate contact with law enforcement, it is deemed a consensual encounter, and should the officer notice that, say, you have dilated pupils, you have effectively opened the door for the officer to investigate you based on any observations made during the conversation. Put simply, if you walk up to the horse-mounted police officers to pet the horse, you're gonna have a bad time!

Next, if an officer approaches you, do not answer any questions; politely state that you will not answer any questions and ask the officer if you are free to leave or if you are being detained. If the officer tells you you're free to go, get out of there; if the officer tells you that you are being detained, politely state that you're invoking your right to remain silent and will not answer any questions without your attorney present.

More often than not, people think they will curry favor with law enforcement officers by answering questions or making admissions. However, this is NEVER the case. While it is essential to treat the officers with respect and to be polite, you will not do yourself any favors by answering questions posed by law enforcement officers. Nothing good, in my experience, has ever come from speaking to the police who are investigating you.

I am often asked how one should go about invoking their rights, in a polite way; the linked youtube video provides an excellent example of how to politely assert your rights to a law enforcement officer. The video can be found at the following address: https://www.youtube.com/watch?v=qkKk5VAy59w (skip to the 1:00 mark for the good stuff).

Also, if you feel you might have trouble asserting your rights or articulating your thoughts, print out a Miranda response card, which can be handed to an officer instead of orally invoking your rights, and can be found on my Law Office's Facebook page at the following address:

Lastly, and most importantly, my advice is to not break the law. Period. That being said, be safe out there, stay hydrated, and have (legal) fun!


Marijuana and California DUI Law

handcuffs-marijuanaAB 2500, authored by California State Assemblyman Jim Frazier, is a proposed amendment to California's DUI statute, Vehicle Code § 23152, et. seq. The bill proposes the addition of a new "f" count, which states, "It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code)." What does this mean? Essentially, it would be unlawful to drive a vehicle in California with any detectable amount of THC, or any of the other enumerated substances, regardless of whether or not it is psychoactive.

With regard to marijuana, this proposed amendment becomes particularly problematic. Most drugs, like cocaine and methamphetamine, are water soluble, and stay in a person's system for a couple days. Marijuana, on the other hand, is fat soluble, and can stay in a person's system from a couple days, to up to three months, and in some cases, beyond. Weight, body fat, amount consumed, and in particular, the frequency of usage, all determine how long a person will test positive for marijuana.

The issue with this proposed amendment is that there is no rational nexus between trying to prevent impaired driving and punishing drivers who are completely sober, but may have used a substance within the past couple days, or worse, the past couple months, and test positive on a drug test. At its core, it seems as though this proposed amendment seeks to punish those who use marijuana and other substances, under the guise of preventing driving under the influence.

This is especially disconcerting when you take into account that Vehicle Code § 23152(e) provides that, "It is unlawful for a person who is under the influence of any drug to drive a vehicle." Here, the law makes sense because we are punishing drivers who drove "under the influence of any drug," not drivers who tested positive for a drug.

Although this bill has not yet been passed, it illustrates an alarming trend in perverting the purported purpose of a law, to target specific groups of people.


Vehicle Searches

I know I have touched on this issue before in previous blog posts, but the one questions clients and friends always ask me is "Do I have to let the police search my car when they ask?" The simple answer is a resounding NO!

Even during vehicle stops for minor traffic violations, it is not uncommon for officers to ask the stopped motorist for permission to search their car. Why do they do this? Well, it really comes down to the shift from American Law Enforcement being "peace officers," and transitioning into "police officers." The change may seem to be nothing more than semantics, but in practce, the consequences are far reaching. Instead of being tasked with maintianing public order (i.e. peace officer), police now actively seek out crimes for the sake of seeking out crimes. That is to say, any opportunity a police officer has to look for criminal conduct, they will seize upon it.

Going back to the vehicle stop for a traffic violation, this trend is put into sharp focus. Instead of merely citing the offender and letting him or her go on their way, police officers use the traffic violation as a means of "getting their foot in the front door" for further investigation of any unrelated criminal conduct.

Most people, when confronted by a police officer who wishes to search their car, bow to the power of the badge and aquiece for a multitude of reasons; maybe they have nothing to hide but are intimidated by the badge, or maybe they have something to hide and think cooperation will be their ticket to freedom, or maybe they just don't know their rights. In any case, there is no reason to ever say yes to a police officer who wishes to search your car.

I say this because, regardless of your answer, if the police have probable cause to search your vehicle, they are going to search your vehicle. End of story. This is why it is smart to refuse consent to search; if the cops are asking for your consent, they probably do not have probable cause to search your car, and are using intimidation or coercion to gain consent. Remember, it is perfectly legal to refuse an officer's request to search your car.

I hope this helps to flesh out this issue, and remember, the best answer, when a cop asks to search you or your vehicle, is NO!


SB 794 And Its Impact On A Criminal Defendant's Right To A Fair Trial

SB 794 is a bill that seeks to reduce the number of peremptory challenges afforded to a criminal defendant in a misdemeanor trial from ten to five, in the name of judicial economy (i.e. saving money). Before I go any further, I must explain the purpose and history of peremptory challenges to provide the proper context.

Firstly, peremptory challenges are used during voir dire (jury selection) to dismiss potential jurors without cause. This means, as long as the motivation is not rooted in race or gender, a juror can be excused, using a peremptory challenge, without showing that he or she cannot be fair and impartial, is incapacitated, is incompetent, is related to any party or witness, is a participant in previous litigation on the same matter, all of which are what constitutes cause. Given that courts, especially with regard to misdemeanor cases, limit voir dire to as little as ten minutes for each side, peremptory challenges serve as the last line of defense for attorneys to dismiss jurors who may be overly partial to the opposing side. Remember, voir dire occurs in open court, so jurors' answers to questions posed by attorneys are not always honest, given the nature of the process. Peremptory challenges allow attorneys to excuse jurors who they feel may be "hiding the ball," absent a showing of cause.

Now for a little history; peremptory challenges are rooted in Roman law, where both sides were allowed to select 100 potential jurors, and both sides were afforded 50 peremptory challenges to dismiss jurors, thereby leaving 100 of the initial 200 jurors, to decide the case.

In California, the right to peremptory challenges is almost as old as the state; California Code of Civil Procedure Section 231 was enacted in 1851, and later codified in 1872. Under CCCP Section 231, a person alleged to have committed a crime in a criminal case, where the punishment may exceed 90 days, is afforded 10 peremptory challenges, and six peremptory challenges are allowed for those facing misdemeanors with a sentence of 90 days or less.

SB 794 aims change over 160 years of California law, by reducing the number of peremptory challenges, in misdemeanor cases, to five, regardless of the amount of potential custody time. This will affect the People's ability to have a fair trial, and more worrisome, it will make it harder for criminal defendants to receive a fair trial, especially in conservative counties like Orange County.

This bill is opposed by both the California District Attorneys Association and the California Public Defender's Association, two groups which rarely agree on anything. It is safe to say that any gains in judicial economy will be offset by juries that are less diverse, less informed, and more prejudiced towards one side or the other.

The right to a fair trial is the cornerstone of a free and open democracy; SB 794 will have the effect of eroding that right and creating adverse consequences for our democratic society.


What Is An "Expungement" And What Does It Do?

ExpungementGiven the economy and today's job market, more and more people are trying to clean up their criminal records so they can remain competitive, or at the very least, have a shot at landing a job. Heck, even landlords are utilizing background checks to select tenants in today's crazy rental market.

I am often asked if there is any way to "seal" a California conviction and, unfortunately, the short answer is no. However, do not despair as a dismissal under Penal Code §1203.4, often erroneously referred to as an "expungement," is the next best thing, and, under California law, is the most effective vehicle for "cleaning up" one's record.

How does a Penal Code §1203.4 dismissal work? Upon receipt of the appropriate paperwork, the court will make a determination if said petition should be granted. If the Penal Code §1203.4 dismissal is granted, the court will vacate the conviction.

What does this mean for the petitioner? Well, for starters, it means that, subject to certain caveats, the petitioner does not have to disclose the prior conviction to any prospective employer, landlord, etc. Given that prospective employers conducting a background check will be able to see that there was, at one time, a conviction that was subsequently dismissed, they are barred from asking about it pursuant to California Labor Code §432.7(a).

As I mentioned earlier, there are some exceptions to a petitioner's right to non-disclosure of a prior conviction that is dismissed, pursuant to Penal Code §1203.4. What are these exceptions? As Penal Code §1203.4 states, once a dismissal is granted, "the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission." Thus, unless the petitioner falls into one of the specifically itemized categories listed above, he or she need not disclose a dismissed conviction, and prospective employers are statutorily barred from inquiring about it.

Who is eligible for a Penal Code §1203.4 dismissal?

-Anyone convicted of a misdemeanor or felony who has completed the proscribed period of probation.

-Anyone convicted of a misdemeanor or felony who is currently on probation. In order to be eligible for the Penal Code §1203.4 dismissal, the petitioner must first motion for the court to terminate probation early. As a rule of thumb, courts are reluctant to grant motions for early termination of probation unless the majority of the probationary period has expired. For example, if the petitioner is placed on three years probation, courts like to see that at least two years of the probationary period have been served.

-Anyone who is convicted of a misdemeanor or felony who is not placed on probation can petition the court for a Penal Code §1203.4 dismissal one year from the date of conviction.

Who is not eligible for a Penal Code §1203.4 dismissal?

-If you currently have criminal charges pending against you or are on a grant of probation related to a different case.

-Anyone convicted of a misdemeanor or felony who has not paid off the fines and/or restitution ordered by the court.

-If you were convicted of a felony and sentenced to state prison.

-Anyone convicted of violating Vehicle Code sections 2800, 2801, 2803, or 42001(b), or Penal Code sections 261.5(d), 286(c), 288, 288a(c), 288.5, or 289(j), as these violations are non-dismissible.

*It should also be noted that anyone seeking a dismissal, on a case where they violated their grant of probation, will be at the mercy of the court's discretion.

A couple of quick closing thoughts: anyone whose conviction requires them to register as a sex offender, or which prohibits them from owning a firearm, or from driving, will still be subject to those requirements/prohibitions. Further, despite a dismissal, if the petitioner picks up a new case, the old case, which was dismissed, can still be used to increase punishment on the new case, or can be used as a priorable offense.

I hope that this post is helpful to you all, and if you have any questions, comments, or concerns, please feel free to call me at (949)945-2085, or email me at SThomas@ScottCThomasLaw.com.


Roadside Drug Tests: What You Need To Know

436926-lapd-officer-demonstrating-the-oral-swab-toolStarting at the end of 2013, the LAPD rolled out a new mouth-swab roadside drug testing kit for use at DUI checkpoints. Well, for 2014, patrol officers now carry these kits as part of their standard issued equipment, so we will undoubtedly see their use rise. Below is what you MUST know about these tests and your legal rights.

First, these kits test for seven different drugs, but will inevitably be used most on drivers suspected of driving while under the influence of marijuana. There is no legal requirement that a driver submit to such a test. Nowhere is it codified that a driver must submit to an oral-swab drug test if they are suspected of DUI for drugs. However, that will not stop officers from using intimidation, coercion, or outright misrepresentations to try and steer drivers to consent to these tests.

At this point, it's critical to make an important distinction: oral roadside drug tests are different than the breath or blood sample you are required to give, post DUI arrest. Failure to give a breath or blood sample, post DUI arrest, can result in a one-year license suspension, under California's implied consent law, in addition to potential DUI charges. However, with regard to these oral-swab drug tests, you have the right to refuse them and face no penalty, despite what officers in the field may threaten.

Given the rise in number of medical marijuana patients and collectives in the state, there are many drivers on the road who are medicated; it is only a matter of time until the legislature acts to address this trend and makes these roadside drug tests mandatory. However, for the time being, know your rights and recognize that you do have the right to refuse oral-swab roadside drug tests without consequence.


Arrests for Minor Infractions

stop-frisk_1_7-18-12You can only be arrested for committing misdemeanors and felonies, right? A cop can't arrest you for something as trivial as not wearing a seat belt or not having a valid form of identification...right? Well, unfortunately, wrong!

The sad and alarming answer is YES! According to the United States Supreme Court in Atwater v. City of Lago Vista, an officer who has probable cause to believe a crime has been committed, even a minor traffic violation, has the authority to arrest. What was the offense in question in that case? Driving without a seat belt, a misdemeanor punishable only by fine in Texas, the state the case arose out of.

Right now you may be thinking, "Hey, it's a minor traffic violation, but in Texas it's a misdemeanor, which makes sense, because everything is bigger in Texas. They could never do that in California where not wearing your seat belt is merely an infraction!" Well, here comes the California Court of Appeal to tell you just how wrong you are. Taking the above a step further, People v. McKay stated that so long as an officer has probable cause to believe that an individual has committed an infraction, the officer has the authority to arrest that individual. What crime did the defendant commit in McKay? Riding a bicycle in the wrong direction on a residential street. The story gets worse for Mr. McKay, as he was searched incident to arrest, and was found to have methamphetamine in his possession, which illustrates just how quickly encounters with law enforcement can spiral out of control. That means if an officer decides to arrest you for an infraction, you will be searched incident to that arrest, which may open up a whole host of new problems for you.

As if things could not get any worse, if you are cited for failing to produce adequate identification, pursuant to Vehicle Code §40302, the police not only have authority to search your person and arrest you, but if you are driving, they are also permitted to conduct a limited warrantless search of the interior of the vehicle, where such documentation would ordinarily be kept. In practice, that means a cop, at the very least, will tear apart your vehicle to search for your identification, should you fail to produce it. This may have some adverse consequences on your liberty if you have anything illicit in your glove box or center console, where such items are often kept. Even if you are playing on the right side of the law, and have nothing illegal on you or in your vehicle, if the officer is having a bad day, you may still find yourself in police custody for the underlying infraction violation.

What then is the takeaway from all this? Well, the obvious one is that the police can pretty much arrest you for anything, as long as the conduct violates a statute, even if it is an infraction punishable by fine only. Now, most police officers are not in the habit of arresting people for rolling through a stop sign, mostly a function of the time, resources and energy such arrests would require on a daily basis. However, it is important to be cognizant of the fact that law enforcement officers have the authority to arrest for minor infractions when you put yourself in situations where law enforcement officers are present i.e. bars, sporting events, clubs, etc. While it is unlikely you will be arrested for a minor infraction violation, if you give an officer a reason to exercise this authority, I'm sure he or she would be more than happy to oblige!


Warantless Searches

Vehicle Search

The police need a warrant, probable cause, or reasonable suspicion to conduct a search of your person or vehicle...right? Wrong! Police can conduct warrantless searches, not supported by probable cause or reasonable suspicion, under the guise of "officer safety" and what are known as "administrative searches."

Law enforcement officers have wide latitude in conducting searches to ensure that officer safety is maintained. In Terry v. Ohio, The United States Supreme Court stated that if an officer has reason to believe he or she is dealing with an individual who may be armed, the officer is allowed to conduct a pat down search of the individual for weapons. The search must be an open-palm pat down of the exterior of a subject's clothing and the officer must have articulable facts that form the basis of the officer's belief that an individual may be armed. The scope of a Terrysearch can extend to the inside of a vehicle, anywhere that is within an arm's reach of any of the vehicle's occupants.

On paper this makes sense, however, in practice, law enforcement officers use Terry searches as a means of searching an individual when lacking reasonable suspicion to support said search. More often than not, the facts the officer articulates that led to his or her safety concerns are dubious at best. However, courts are reluctant to suppress evidence derived from these searches out of fear of compromising officer safety.

Another way in which law enforcement conducts warrantless searches is by way of administrative searches. If you find yourself wondering what exactly an administrative search is, think of an airport security line. The reason why it is lawful for our baggage and person to be searched at an airport is that the public safety interest in conducting such searches outweighs the intrusion into our privacy, and the searches are conducted in such a way as to leave little to no discretion, regarding who will be searched, to the officer. The same holds true for DUI and license checkpoints.

Now, where things get a little sketchy is when law enforcement officers use administrative searches to conduct a search of a vehicle that they otherwise could not lawfully conduct. A prime example is the DUI arrest. Following the U.S. Supreme Court decision in Arizona v. Gant, auto searches incident to the arrest of a driver for DUI were found unconstitutional. The reasoning behind this decision is that once a motorist is arrested for DUI, he or she is already outside of their vehicle, and thus, are unable to reach any weapons that may be concealed in the vehicle, thereby negating the necessity of a search of the vehicle incident to arrest. However, if an officer has a hunch that the vehicle may contain contraband of some kind, he or she can get around this prohibition by ordering the vehicle impounded; once impounded, an inventory search of the vehicle is conducted to determine what property is in the vehicle. This is done to protect both the arrestee and the law enforcement agency; it also has the ancillary benefit of allowing law enforcement to conduct a thorough search of a vehicle they could not otherwise lawfully search.

The take away from all of this is that if law enforcement officers want to search you or your vehicle, they probably will find a way, even without a warrant, probable cause, or reasonable suspicion. The best thing you can do if you find yourself in a bad spot is to politely state that you are invoking your right to remain silent and request that all questioning cease until counsel is present.

All hope is not lost as a good criminal defense attorney should be able to flesh out the details that would demonstrate to the court that the officer's are using these tactics to circumvent the requirements of the Fourth Amendment at a suppression hearing. If you or anyone you know feel as though you were the victim of an unlawful search, do not hesitate to contact my office as I offer free consultations and I am happy to review the strengths an weaknesses of a case, as well as any defenses, all free of charge.

Using Medical Marijuana In California

Scott C Thomas Criminal Defense Attorney California Medical Marijuana DUI

It never ceases to amaze me how often I hear people say that because they have a physician's recommendation to use medical marijuana, or a Medical Marijuana Program Act ID card, they can smoke marijuana anywhere while doing anything...even while driving! Before delving into the inaccuracies of the above statement, let me be crystal clear on one issue: possession of marijuana is illegal under Federal law and any advice rendered, applies only to California state law.

Before I explain where you can smoke medical marijuana legally in the state of California, perhaps it would be better to start by explaining where you cannot smoke medical marijuana. Under California state law, you cannot smoke medical marijuana in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat. That being said you are free to smoke in any place that is not listed above.

However, one thing to be cognizant of is that it is not always easy to determine whether you are within 1,000 feet of a school, recreation center, or youth center. That being said, it may be advisable to only use medical marijuana within the confines of your home, out of an abundance of caution. Just because you can do something, does not necessarily mean you should, and smoking marijuana in public will certainly get the attention of any law enforcement officers who may be downwind.

I can already hear people saying, "well it says you cannot smoke in a car that is being operated...so why not just pull over and box the car? It's not being 'operated!'" NO! Bad idea! I say this because, while the conduct may technically be lawful, you are exposing yourself to a potential DUI investigation. If you are caught smoking in your car, even if not in operation, the first thing a police officer will do is try to determine if you were driving under the influence. If the car is warm to the touch, or there are other indicia that the car was recently driven, the officer can certainly take you in for DUI based upon the circumstantial evidence. Whether or not charges will be filed invariably depends on the facts of the case, but why even put yourself through this?

If you're a qualified patient with a valid physician's recommendation to use medical marijuana, or have a Medical Marijuana Program Act ID card, you have a lot of latitude, subject to the aforementioned restrictions, on just where you can toke up. The question you have to ask yourself is whether or not it is worth a negative experience with law enforcement. I mean come on, who really wants to deal with cops when they're high? Sometimes, it's safer just to stay at home and get high on the couch!


Understanding Pretext Stops

Scott C Thomas Criminal Defense Attorney Pretext Stops
Ever watched an episode of Cops? Ever notice how officers will post up outside a house known for drug sales, wait for a customer to drive away, then pull them over for a seemingly miniscule Vehicle Code violation? What's the first question the cop ALWAYS asks? "Got any drugs in the car?"

This is what is known as a "pretext stop," and according to the US Supreme Court in Whren v. United States and Arkansas v. Sullivan, an officer's subjective intentions are irrelevant so long as there is probable cause, independent of those suspicions, to believe a crime, no matter how minute, has been committed. Put another way, once lawfully pulled over, officers are free to investigate any potential unrelated criminal activity. This was not always the case. Until these relatively recent decisions came down, these types of tactics were deemed unconstitutional and viewed as a way for officers to circumvent the warrant requirement of the Fourth Amendment.

What is even more unsettling, even if an officer pulls you over for violating the "wrong" statute, the stop does not violate the Fourth Amendment, so long as there is a "right" statute that applies to your conduct. That is to say, if an officer pulls you over for speeding, but it turns out that you were not in fact speeding, the stop is still legal so long as there is another basis for the stop, such as having a broken tail lamp.

Pretext stops also go hand-in-hand with racial profiling. If an officer has a hunch someone is up to no good, even if it is because of the color of his or her skin, the officer is free to stop the person and question them about any and all criminal conduct, so long as there is a basis for the vehicle stop.

The lesson to take away from this is that you can be pulled over for the smallest of infractions as pretext for a collateral criminal investigation and that officers have a great deal of leeway in justifying such stops. You've been warned!