Arizona Court of Appeals Ignores the Arizona Medical Marijuana Act in State v. Jones

Cannabis PlantThe Arizona Court of Appeals yesterday decided State v. Jones in a perplexing 2-1 decision that appears to ignore the Arizona Medical Marijuana Act (“AMMA”).   Defendant Rodney Jones was a registered qualifying patient under AMMA allowing him to possess under 2.5 ounces of usable marijuana.  Despite having a valid medical marijuana card, he was arrested and charged for possessing a jar containing 0.05 ounces of cannabis resin known as hashish.  Notwithstanding the fact that he was a medical marijuana patient, he was convicted for possession of a narcotic drug and drug paraphernalia.  Mr. Jones was sentenced to 2.5 years of prison–for that 0.05oz jar of marijuana resin.

Judge Thompson, writing for the majority, distinguished the resin extracted from the marijuana plant as different from marijuana itself.  What is particularly frustrating with the Judge Thompson’s decision, is that it is based on old court cases decided prior to AMMA.

Obviously, as a defense attorney, I might be biased when it comes to decisions affecting a defendant’s rights.  However, I believe this decision is objectively bad in that it appears to run contrary to the law put in place as a result of AMMA memorialized in Title 36, Chapter 28.1 of the Arizona Revised Statutes.  Specifically, AMMA defines marijuana as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.”  It does not exclude resin.  To nonetheless conclude that marijuana resin should be excluded from this definition, a definition that only applies to AMMA patients, seems like an exercise of judicial activism.  The majority seems to impose its own political belief system on what it felt the law should be.

Judge Jones dissented reasoning that AMMA’s definition of marijuana includes all parts of the marijuana plant.  I am at least appreciative that one of the judges got it right, but unfortunately, majority rules even on a 3-judge panel that is the Arizona Court of Appeals.  I am hopeful that Judge Jones’ dissent provides some guidance for the Arizona Supreme Court to review and reverse the majority’s decision.

You can read the full opinion here: http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2018/CR16-0703%20OP.pdf

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I Got Into an Arizona Car Accident – What Do I Do?

car-accidentBeing involved in a car accident can be a traumatic experience no matter what the circumstances are. It is important to do the best you can to stay calm and follow these simple tips. The below tips are intended for the vast majority of auto-accidents not involving serious physical injury:

 

  1. Stay Calm and Do Not Admit Fault: Arizona is a comparative fault state meaning that liability is distributed among all persons involved in the accident based on what percent each person is at fault. As a result, it is important not to admit fault as there may have been circumstances regarding the other driver that contributed to the accident. Obviously, if the accident clearly is your fault it is okay to admit it in fairness to the other driver and so any insurance claims get promptly resolved; however, if there is any question or you are unsure…don’t do it!
  2. Exchange Information with Other Driver: For any accident involving injury or vehicle damage, Arizona law requires that at a minimum you provide your name, address, and vehicle registration number. It is important to wait for law enforcement to arrive to make sure all duties are complied with prior to leaving the scene.
  3. Take Pictures: As your claim is presented to the other parties’ insurance company and possibly litigated, photos taken while at the scene can be extremely helpful in describing the accident. It is important to take photos of the areas of damage of not just your car but any other vehicle involved in the collision.
  4. Gather Witness Information: If there are any potentially favorable witnesses on the scene, gather their contact information as they may be able to help you out later on.
  5. Contact the Police: If there is any meaningful property damage, police will fill out an accident report and write a brief narrative of what they believe happened after talking to everyone involved. This accident report will provide an initial opinion about who is at fault based on the officer’s observations and discussions. The police may also cite one or more involved persons based on this liability determination. Even if your car does not need a tow, remain on the scene until the police tell you it is okay to leave and provide the report number.
  6. Do Not Delay Getting Necessary Medical Treatment: If you suffered any physical injuries whatsoever, even if it is slight discomfort, it is important to have a medical exam to confirm what if any treatment is necessary. Do not delay as insurance companies may use a delay in treatment as a way to minimize your injuries.
  7. Contact an Attorney: I hate to make a plug here, but I cannot stress it enough how helpful the right attorney can be in an accident case. Some people do not properly realize what they are entitled to and the information needed to correctly process a claim with insurance and/or litigate it. Call an attorney to make sure you are doing everything correctly.

If you or somebody you know is involved in a car accident, call attorney Matt Maerowitz at 602-912-5897 for a free consultation.

Image courtesy of Naypong at FreeDigitalPhotos.net

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Arizona Supreme Court Holds Smell of Marijuana Alone Sufficient for Probable Cause

Marijuana law is one of the most rapidly evolving areas of law nationwide. Half of the states, including Arizona, have legalized marijuana for medical purposes. Many of these new legalization laws have been enacted within the past ten years, which has resulted in a lack of historical precedent and court confusion on how to interpret the laws.

There had previousMarijuana Hearlingly been a misconception that Arizona courts have decided the odor alone is not sufficient to support a search. However, there was actually an appellate split where two divisions of the Arizona Court of Appeals dealt with very similar issues, but came out with seemingly opposite results. In the earlier State v. Sisco, 238 Ariz. 229, (App. 2d Div. 2015) the court decided that the scent of marijuana alone does not support a search, whereas in State v. Cheatham, 237 Ariz. 502, (App. 1st Div. 2015) decided that odor alone can support a search. Although these two July 2015 cases had some arguable distinctions, the Arizona Supreme Court reviewed both decisions and provided clarity.

Today, the Arizona Supreme Court has decided that notwithstanding the Arizona Medical Marijuana Act (AMMA), the odor of marijuana alone is sufficient for an officer to have probable cause to search. Personally, I think the Court got it wrong and goes against the intent of AMMA. I think this decision detrimentally affects all Arizonans.

For example, the police can now secure a warrant to search your apartment if the police smell marijuana from outside. They might do this even if it turns out that the smell of marijuana is coming from a neighboring apartment but police confuse it for yours. I wish I could say this is such an extreme example, but this is pretty close to what actually happened in Sisco where the police first searched the wrong unit. 238 Ariz. at 232. What’s worse is you might have your apartment searched when the smell is coming from your neighbor who might actually be using marijuana under AMMA as prescribed.

The Supreme Court did note that the odor alone standard constitutes “probable cause unless” in that law enforcement officers may have evidence of AMMA-compliant use or possession that might dispel probable cause ordinarily established by just the smell of marijuana. However, in practice, I cannot imagine this making any difference. Short of a patient or caregiver providing an AMMA card it is hard to imagine what type of evidence officers might consider demonstrating marijuana use consistent with AMMA.
The only language within the decision that gives me hope is that the Arizona Supreme Court notes in Paragraph 16 of State v. Sisco that “if Arizona eventually decriminalizes marijuana, our analysis and conclusion in this context might well be different.”

The Arizona Supreme Court’s opinions may be viewed at the following links:
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150265PR.pdf
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150286PR.pdf

Image courtesy of Zuzuan at FreeDigitalPhotos.net

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Be Careful what you Post! Once Published Online, It’s Not So Private

Worldwide WebDeep into the information age of the internet, it amazes me how easily personal information can be accessed from a few keystrokes and clicks. I feel strongly about the importance of privacy; however, information on the internet is becoming increasingly less private. What is published on the internet can often be accessed by third parties whether you like it or not. As a result, it is very important to exercise restraint when posting information online.

Even without having to hire a private investigator, I often research the opposing parties and witnesses and you’d be surprised what I’ve occasionally found on the web to benefit my clients! What people sometimes forget is that although posts on social media sites like Facebook are intended to be semi-private, it normally is not all too difficult to access them. For better or worse, Arizona also provides the public with access to many criminal and civil records.

Quite frankly, I have also encountered instances where the opposition has tried to do the same against my clients. While that photo of double fisting beers may be all fun and games among your Facebook friends, it may impact you when a legal case is pursued for or against you. Also once it is on the internet, it goes into the public sphere and sometimes can be difficult to remove. Everyone has heard about employers finding prospective hires on Facebook; however, it goes well beyond that. Next time you post anything online, ask yourself whether you would feel comfortable if all of your present or future adversaries saw that content. If not, then the internet isn’t the place for it!

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

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February Myth of the Month – Make My AZ Traffic Ticket Go Away!

A lot of people, particularly those outside of Arizona, call my office in hopes that I can make a civil traffic ticket go away. Although I am not familiar with the law outside of Arizona, I have heard of other jurisdictions offering an option to plead adjudication on a traffic ticket, which more or less dismisses the charge upon payment of a fee. In Arizona, the closest thing to get a dismissal of a civil traffic violation is defensive driving school, which is a four-hour course that can be taken online.

Woman Driving
Although I have a strong understanding of this area of law, I rarely get involved in civil traffic violations because successful completion of traffic school is a way to basically ensure dismissal. I understand this may seem contrary to last month’s myth, but I pride myself on being open and upfront on the value I can provide. Nonetheless, there are certain time and eligibility restrictions of traffic school that may warrant hiring an attorney. For example, if someone has a commercial driver’s license (CDL), a civil moving violation has very serious consequences even if cited while driving a personal vehicle. A CDL holder is generally not eligible for defensive driving school and risks losing his or her job if found responsible.

What I have also found is that sometimes someone thinks all they have is just a simple traffic ticket when it is actually something much more serious. I have dealt with several people charged with excessive speed or driving on a suspended license, and until calling me do not quite realize this is a criminal matter. For criminal speeding, driving school is entirely discretionary so hiring an attorney may help in navigating options and presenting your case.

If you have been charged with a traffic violation, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.
Image courtesy of Toa55 at FreeDigitalPhotos.net

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January Myth of the Month – I Don’t Need an Attorney

Legal Advice PhotoOn an earlier post, I talked spoke about Miranda and that the officer’s failure to read Miranda rights on arrest is ordinarily not enough to dismiss the case.  However, even when a person is told the right to an attorney, a lot of people will still not exercise the right!  This is shocking because immediately consulting with an attorney, even while still under investigation by the police, can be extremely helpful.  So this leads me to this month’s myth: I don’t need an attorney. If charged with a crime, even a misdemeanor, you can almost always benefit from having an attorney.

Some attorneys will use over-the-top scare tactics—for example, telling prospective clients that they can expect six months jail for a regular first offense DUI.  Although the consultation is “free” these attorneys make sure the client doesn’t leave without paying over $5,000 for continued representation…or else!  Although a great way to secure business, this tactic is completely unreasonable and prevents the client from making a truly informed choice.

Because of a few bad attorneys doing it all wrong, I understand why some people accused of the crime are hesitant to have a consultation.  However, the truth is a brief 30-60 minute consultation with a knowledgeable attorney is incredibly valuable.  There can be a lot going on that is overwhelming and having an attorney by your side is necessary to not only help defend your case, but keep you well-informed.

If charged with a crime, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of by Stuart Miles at FreeDigitalPhotos.net

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Myth of the Month – Ignorance of Facts v. Law

Confused Mistake of FactThe whole myth of ignoring the law as a possible (albeit mistaken) defense to prosecution is probably now dispelled. By now a lot of people have heard of the old phrase, “ignorance of the law is no defense.” In fact, Arizona criminal law specifically states that ignorance of the law does not relieve a person of criminal liability.

On the other hand ignorance of a fact may be a defense for an offense that requires a guilty mind. See ARS § 13-204. For example, say you are in possession of an item that you did not realize was stolen. This may be a defense to theft, which requires a culpable mental state. However, a mistake of fact does not mean that the State will not attempt to pursue criminal charges. Nonetheless, it is important to know that a mistake of a particular fact can be a defense as it functions differently from a mistake of law.

It is difficult to determine what defenses may be available without discussing the particular situation with a criminal defense attorney. If you are charged with a crime, call attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of Master isolated images at FreeDigitalPhotos.net

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Arizona Supreme Court Issues Opinion Regarding Marijuana DUIs. How does Dobson v. McClennen change the DUI landscape?

On November 20, 2015 the Arizona Supreme Court issued Dobson v. McClennen an important opinion in the marijuana DUI arena. Although the Court took a middle-ground approach in considering the State’s and Defendant/Petitioner’s arguments, it now allows the Arizona Medical Marijuana Act (AMMA) to be used in a marijuana DUI case. For the vast majority of marijuana DUIs prosecuted in Arizona, this case does not mean a whole lot. However, this does modify the November marijuana DUI myth of the month.

A defendant charged with marijuana DUI now has a defense if both: (1) the defendant was using marijuana pursuant to a medical marijuana card under AMMA and (2) the marijuana or its metabolite was in a concentration insufficient to cause impairment. This is certainly a positive step for defendants, and in my opinion, society. It is important to note that the decision does NOT allow someone to drive while under the influence of marijuana, even with a card. Additionally, a defendant is tasked with the burden of proving the marijuana is in an insufficient quantity to cause impairment, which may be an uphill battle requiring expert testimony.

If you have been charged with a marijuana DUI find out if you have a defense by calling attorney Matt Maerowitz for a free consultation at 602-912-5897.

Posted in Criminal Law, DUI, Marijuana | Tagged | 9 Comments

DUI Myth of the Month – The Curious Case of Marijuana DUI

Marijuana LeafIn Arizona, you can be convicted of a DUI if driving while a drug is in your system. For prescription drugs, there is a defense to DUI if the driver has a drug in his or her system but was taking the drug as prescribed by a doctor. In such cases, a patient may still get a DUI but the State must prove that the driver was impaired. However, marijuana is still treated differently even if the driver has a medical marijuana card.

Under the current state of the law, it makes ZERO difference whether you have a medical card or not for purposes of DUI. In other words, so long as there is an active metabolite of marijuana in your system while driving, you are guilty of DUI. Sometimes, this can be difficult to determine because a person who has recently smoked marijuana, but no longer high may sometimes have no signs of impairment for the task of driving. Unlike alcohol where there is a consensus that all people are impaired at a level of .08 or higher, there is no such consensus when it comes to marijuana. Nonetheless, it is illegal to drive if the marijuana metabolite hydroxy-THC is still lingering in a person’s system.

As a result, even if using marijuana as a qualified patient, you cannot drive regardless of whether impaired or not. Given the strong smell of marijuana even a routine civil traffic stop may quickly turn into a marijuana DUI once the officer approaches the vehicle. Importantly, the consequences of a marijuana DUI are particularly harsh and includes mandatory jail and a one-year revocation of a person’s driver’s license.

If you have been charged with a marijuana DUI, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of Paul at FreeDigitalPhotos.net

*NOTE: A couple weeks after writing this, the Arizona Supreme Court changed the marijuana DUI landscape allowing a new, but limited defense.  See my post on the recent change: https://maerowitzlaw.com/2015/11/25/arizona-supreme-court-issues-opinion-regarding-marijuana-duis-how-does-dobson-v-mcclennen-change-the-dui-landscape/

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October DUI Myth of the Month – Arrested for DUI? I thought I Passed the Tests!

Officer PointingPrior to making a DUI arrest, a police officer will ask the subject to perform a series of field sobriety tests unless there is a legitimate concern for the subject’s safety. The primary tests are: Horizontal Gaze Nystagmus (eye test), the Walk and Turn, and the One Leg Stand. Occasionally, the officer will request additional tests, but there has not been much peer-reviewed literature suggesting the accuracy of other tests. A lot of people agree to take these tests whether they are sober or not, “If I don’t feel drunk, I’ll be able to pass these, easy peasy.” When someone then gets arrested for DUI, he or she is a bit shocked thinking all the tests were passed except perhaps the breathalyzer. However…

If you have been arrested for DUI, you probably failed the tests.

In many respects, these tests are designed to make you fail as law enforcement look for various signs that they do not tell you about while performing the tests. For example, one of the tests, the Walk and Turn, the officer asks the subject to take nine heel-to-toe steps forward, turn and nine steps back. Sounds easy enough right? However, simply “completing” this test upright is not enough to pass…not even close. The officer is looking for eight different “clues of impairment” and only need to observe two in order to conclude that you “failed” the test. For example, missing heel-to-toe even on just one of the eighteen steps is one of the clues and if just one more of the other seven clues is presented, it is counted as a failure (a few of the other clues include stepping off the line, even when imaginary; starting the test too soon; and making an improper turn).

Needless to say, these tests are not easy. Importantly, if the officer incorrectly observes the clue or fails to properly administer the test, the results become suspect but may still be difficult to challenge. I know exactly what the officers are looking for and I would still be hesitant to take any of the tests sober!

It is worth noting, that refusing the field sobriety tests may be used against you in Court. State ex rel. Verburg v. Jones, 211 Ariz. 413, 415, 121 P.3d 1283, 1285 (App. 2005). However, officers need probable cause to make an arrest and sufficient evidence of a DUI is sometimes lacking without test results. As a result, it is typically advisable to politely decline to take any pre-arrest tests and immediately request an attorney.

If you have been stopped or arrested for DUI, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of vectorolie at FreeDigitalPhotos.net

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