Obama & Native American Chief

It IS Where You’re From AND Where You’re At When It Comes to Alleged Crimes on Tribal Land

By Cary L. Lackey, Esq., of The Law Office of Cary L. Lackey, P.C. on June 1, 2016.

With apologies to one of my favorite hip-hop groups of all time, Eric B. & Rakim, specifically, a line from “I Know You Got Soul,” a hit off of their seminal, 1987 album, Paid In Full, it pretty much DOES depend on both where you are from, and where you’re “at” when it comes to alleged crimes that occur on tribal land in the United States.

I thought about this issue while attending an Indian Law Continuing Legal Education (“CLE”) program a few months back, held at the Talking Stick Resort & Casino near Scottsdale, Arizona.   Attorneys have to have a certain amount of CLE hours every year to keep practicing law.  This year, I completed quite a bit of my mandatory CLE obligation at this particular program put on by the Federal Bar Association (of which I am a member). The FBA puts on an Indian Law Conference every year, and if you are an attorney interested in Indian law, I highly recommend it.

Indian law was one of my favorite subjects in law school back at the old alma mater, Arizona State University College of Law, and it was great seeing my old classmates, as well as my ageless professor who taught the class, Professor Rebecca Tsosie, at the Conference.  One of the things that I liked about the class was learning that Indian law, far from being isolated from other legal fields, intersects so many, including but not limited to, environmental, family, water, constitutional (obviously), intellectual property, gaming, etc.

Indian law also intersects greatly with the legal field of Criminal law, and I have had to deal with that intersection often in my practice.  I very often represent Non-Native Americans who have been accused of crimes on tribal land, most specifically, in and around the Native American gaming casinos and resorts in the metropolitan Phoenix area.  I have also represented Native American clients primarily in state court (where the alleged offenses did NOT occur on tribal land – we’ll get into that momentarily).

The first step in figuring out “where you’re at” is to establish whether you are on tribal land, or “Indian Country,” as defined in the United States Code at 18 U.S.C. § 1151.  Generally, Indian Country is “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments [ ].” 18 U.S.C. § 1151.  Accordingly, this would include gaming casinos, which are located on Indian reservations, dependent Indian communities, or allotments.

Next, the “where you’re from” part (which can be a little tricky) needs to be determined.  If you are NON-Native American, on tribal land, and are accused of committing a misdemeanor offense (like, say, a DUI under Arizona law),  which has no victim (Native American or otherwise), you will be under Arizona’s jurisdiction, and will most likely be summoned or cited to appear in Justice Court (generally, the West Mesa Justice Court for offenses allegedly committed at Talking Stick casino/resort, and the San Marcos Justice Court in Chandler for offenses allegedly committed at Wild Horse Pass casino/resort).  State jurisdiction would also extend to Non-Native Americans alleged to have committed certain felony offenses on tribal land, provided that they are not “Major Crimes” (which we will talk about shortly) OR involved a Native American victim (we’ll discuss that too).

If you are a NON-Native American facing a criminal allegation on tribal land where the victim is Native American, the matter will be heard in federal court (the U.S. District Court).  However, the 1994 Violence Against Women Act (reauthorized by Congress and signed into law by President Obama in 2013) now grants the Tribes jurisdiction over Non-Native Americans who commit domestic violence crimes against Native Americans on tribal land.

If you are a Native American accused of committing a misdemeanor offense on tribal land in a “victimless” crime (for example, a misdemeanor DUI) or where the victim is also Native American, tribal jurisdiction would apply.

However, if you are Native American on tribal land, and are accused of committing a “Major Crime,” pursuant to 18 U.S.C. § 1153 (generally, murder, manslaughter, kidnapping, maiming, incest, felony assault, assault against a minor younger than 16 years old, felony child abuse or neglect, arson, burglary, or robbery), regardless of WHO the victim is (Native American or Non-Native American), you will be in federal court.  However, if the victim also happens to be Native American, the tribe may have concurrent jurisdiction – meaning you could be prosecuted in both federal AND tribal courts.

If the accused is Native American, the alleged victim is also Native American, both are on tribal land, and the crime is NOT a “Major Crime,” the tribe will have exclusive jurisdiction.

So, as you can see, a lot depends on where you are, and who you are, when it comes to crimes allegedly committed on tribal lands.  If you are accused of committing a crime on tribal land, you need an attorney who understands these basic concepts of Indian Law and how they intersect with criminal law – federal, tribal, and state.  Please contact me if I can be of any help!

Med Marijuana

Medical Marijuana Cards and their “Equivalents:” Across State Borders, into Arizona, and Down the Rabbit Hole

By Cary L. Lackey, Esq., of The Law Office of Cary L. Lackey, P.C. on January 25, 2016.

Late last year, I represented a client in an outlying (from Phoenix, that is) Justice Court who had been arrested for DUI-Drugs, specifically, marijuana.  The State alleged that my client’s (1) driving had been impaired to the slightest degree by marijuana, and that (2) there was a drug and/or its metabolite (marijuana) in his body at the time.  My client was on his way to Phoenix from Nevada, and had been approved to use marijuana for medical use, by a licensed, California physician (we’ll get into why this is important a bit later).

As you may know from reading previous postings on this blog, or from elsewhere on the web, a relatively recent Arizona Supreme Court opinion, State ex rel. Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 322 P.3d 160 (2014), held that the State must show the presence of an impairing marijuana metabolite in the person’s body at the time of driving, in order to prove that there was a drug (marijuana) or its metabolite in the person’s body at the time of the DUI.  A.R.S. § 28-1381(A)(3).

More recently, on November 20, 2015 (about a week before my Trial), in Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015), the Arizona Supreme Court dealt with the issue of whether the Arizona Medical Marijuana Act (“AMMA”) immunized a medical marijuana cardholder from DUI prosecution, specifically, pursuant to A.R.S. § 28-1381(A)(3) (drug or metabolite in the person’s body).  In Dobson, Ms. Dobson, the driver, was an Oregon medical marijuana cardholder who had been stopped by Mesa Police officers, and subsequently prosecuted for DUI-Drugs.  In holding that the AMMA does NOT immunize medical marijuana card holders from DUI prosecution, the Arizona Supreme Court DID rule that the AMMA provides a DUI defendant with an “affirmative defense” to the charge. An “affirmative defense” is one where the defendant (rather than the State or government) presents evidence or a justification that, if found credible, would tend to negate the criminal liability.  Examples of affirmative defenses include self-defense, insanity, entrapment, and necessity.

Just prior to the start of my Trial, similar to the Defendant(s) in Dobson, the State filed a Motion in Limine (Latin for “motion to limit,” basically…) to preclude me from raising the affirmative defense to the (A)(3) DUI charge because my client did NOT possess an actual, California issued medical marijuana card at the time of the traffic stop.  What my client DID have on him at the time of the traffic stop was a copy of his Physician Statement and Recommendation (“recommendation”) from a California-licensed physician (which he actually showed to the arresting police officer).

California Health and Safety Code Section 11362.5, states, in pertinent part, that:

The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A)     To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(emphasis supplied).

Meanwhile, the AMMA has a provision that deals specifically with licensed, medical marijuana patients from other states, namely, A.R.S. § 36-2804.03(C):

A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows a visiting qualifying patient to possess or use marijuana for medical purposes in the jurisdiction of issuance has the same force and effect when held by a visiting qualifying patient as a registry identification card issued by the department, except that a visiting qualifying patient is not authorized to obtain marijuana from a nonprofit medical marijuana dispensary.

(emphasis supplied).

A “visiting qualifying patient” is defined in A.R.S. § 36-2801(17), as a person who “(a) . . . is not a resident of Arizona or who has been a resident of Arizona less than thirty days. (b) [w]ho has been diagnosed with a debilitating medical condition by a person who is licensed with authority to prescribe drugs to humans in the state of the person’s residence or, in the case of a person who has been a resident of Arizona less than thirty days, the state of the person’s former residence.”

It was clear (at least to me), from a plain reading of A.R.S. § 36-2804.03(C), that a medical marijuana card – or its equivalent – from another state carries the “same force and effect” in Arizona, as it would in the patient’s home state.  It was also clear (again, to me, at least) that my client’s California-physician provided recommendation was the working equivalent of a California Medical Marijuana card, and thus would carry the same force and effect in Arizona as it did in California.

As I discovered, many California medical marijuana patients that receive their respective recommendations from physicians don’t even bother with ever actually applying for, receiving, and carrying around California issued medical marijuana cards – the recommendations are enough to enable them to purchase medical marijuana anywhere in their state.

Unfortunately for my client, the Judge did not believe that the recommendation was the “equivalent” of a California medical marijuana card, granted the State’s Motion in Limine, and precluded me from raising an affirmative defense to the (A)(3) DUI charge (only).  All was not bad news, however, as we DID receive a Not Guilty verdict at the conclusion of the Trial on the (A)(1) DUI charge (driving impaired to the slightest degree by marijuana).

Currently, the case is on appeal to the next highest Court (in this case, the Superior Court), and I will keep you guys/gals posted on the outcome of that particular decision.

In the meantime, keep your eyes and ears open for new issues in this realm, as the law is constantly evolving and changing.  I’ll do my best to blog on these issues as they continue to arise.

Stay tuned…

Med Marijuana

What to do with a “Bumper Crop” of Medical Marijuana under Arizona’s Medical Marijuana Act? (Do the Scales of Justice stop at 2.5 ounces?)

By Cary L. Lackey, Esq. of The Law Office of Cary L. Lackey, P.C. on Tuesday, October 27, 2015.

Relatively recently, on August 28, 2015, Division Two (which primarily covers Pima County and the rest of Southern Arizona) of the Arizona Court of Appeals, in State v. Liwski, Case No. 2 CA-SA 2015-0044 (Aug. 28, 2015), accepted “Special Action” jurisdiction over an issue involving whether a “designated caregiver” under the Arizona Medical Marijuana Act, A.R.S. § 36-2801 through 36-2819 (“the AMMA”) could claim a defense under the AMMA that would have allowed him to possess more than the statutory amount of 2.5-ounces, and shield him from criminal prosecution.  The Court of Appeals’ decision in Liwski has serious implications for designated caregivers, and “qualifying patients,” under the AMMA, especially where an “excess” of marijuana over the 2.5-ounce limit is involved.

A “Special Action” is, essentially, a way for a ruled-against party at the trial court level, to petition a higher court, in this case, the Arizona Court of Appeals, to rule on an issue where the ruled-against party believes the trial court judge erred on a legal issue, and there is no remedy available to the ruled-against party on appeal.

In Liwski, the trial court ruled that the defendant, Mr. Ryan Gillie, could present a defense based on the AMMA that, as a “designated caregiver,” he was permitted to carry more than the statutorily prescribed amount of 2.5-ounces of medical marijuana, in order to dispose of it (by transferring it to another “qualifying patient,” that Gillie was not the “designated caregiver” for).

Before we get into the meat and potatoes of the Arizona Court of Appeal’s decision, let’s review some of the applicable provisions of the AMMA, as well as the underlying facts of the case.

First, pursuant to the AMMA, a “designated caregiver” is defined as a person who:

(a) Is at least twenty-one years of age.

(b) Has agreed to assist with a patient’s medical use of marijuana.

(c) Has not been convicted of an excluded felony offense.

(d) Assists no more than five qualifying patients with the medical use of marijuana.

(e) May receive reimbursement for actual costs incurred in assisting a registered qualifying patient’s medical use of marijuana if the registered designated caregiver is connected to the registered qualifying patient through the department’s registration process. The designated caregiver may not be paid any fee or compensation for his service as a caregiver. Payment for costs under this subdivision shall not constitute an offense under title 13, chapter 34 or under title 36, chapter 27, article 4.

A.R.S. § 36-2801(5).

A “qualifying patient,” “means a person who has been diagnosed by a physician as having a debilitating medical condition.”  A.R.S. § 36-2801(13).

An “allowable amount of marijuana,” is defined by the AMMA as:

(a) With respect to a qualifying patient, the “allowable amount of marijuana” means:

(i) Two-and-one-half ounces of usable marijuana; and

(ii) If the qualifying patient’s registry identification card states that the qualifying patient is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the qualifying patient is moving.

(b) With respect to a designated caregiver, the “allowable amount of marijuana” for each patient assisted by the designated caregiver under this chapter means:

(i) Two-and-one-half ounces of usable marijuana; and

(ii) If the designated caregiver’s registry identification card provides that the designated caregiver is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the designated caregiver is moving.

A.R.S. § 36-2801(1) (emphasis supplied).

The AMMA provides criminal and civil protection to qualifying patients and designated caregivers, under the following terms:

A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau:

  1. For the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana.

  2. For the registered designated caregiver assisting a registered qualifying patient to whom he is connected through the department’s registration process with the registered qualifying patient’s medical use of marijuana pursuant to this chapter if the registered designated caregiver does not possess more than the allowable amount of marijuana.

  3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

A.R.S. § 36-2811(B) (emphasis supplied).

Gillie, a designated caregiver under the AMMA for at least one qualifying patient, was apparently stopped by police and found in possession of 3.5-ounces of marijuana.  He was arrested, and officers subsequently discovered growing equipment, and marijuana plants, at his home.  Gillie was formerly charged by the Pima County Attorney’s Office with Possession of Marijuana for Sale (a Class 4 felony since we are only talking about 3.5-ounces total), Production of Marijuana (a Class 5 felony), and Possession of Drug Paraphernalia (a Class 6 felony).

At an evidentiary hearing held prior to trial, Gillie presented evidence that he intended to deliver 2.5-ounces of the 3.5-ounces of marijuana he possessed to a qualifying patient that he was the designated caregiver for, and the excess, 1-ounce remaining to another, presumably, qualifying patient that “he was not the designated caregiver” for.  Liwski, Ariz. Ct. App. (Aug. 28, 2015), at ¶ 2 (emphasis supplied).

The Court of Appeals in Liwski noted that a designated caregiver could assist up to five qualifying patients with medical marijuana, but – surprisingly – didn’t really hone in on the fact that the excess, 1 ounce was going to a patient that Gillie was NOT designated the caregiver for.

The Court of Appeals, instead, focused on the “immunity” from prosecution provisions of A.R.S. § 36-2811(B)(2)-(3), and their inapplicability to Gillie’s situation.

Specifically, the court first noted that Gillie had violated (B)(2)’s restriction of a being a registered designated caregiver with more than the allowable amount of marijuana, since he possessed 3.5-ounces of medical marijuana, 1-ounce over the 2.5-ounce limit.

The court next dispensed with Gillie’s argument that (B)(3), somehow, granted him, as a designated caregiver, immunity from prosecution, since, he possessed the excess, 1-ounce of marijuana prior to offering or providing it to a qualifying patient, in exchange for nothing of value.  The court reasoned that (B)(3) did NOT “create a separate allowance for possession, but rather creates a means by which a [qualifying patient or designated caregiver] can ensure they do not possess more than the allowable amount of marijuana,” by, essentially, transferring it in exchange for nothing of value.  Liwski, at ¶¶ 10, 18.

The important thing to take away from the Court of Appeal’s Liwski decision is that the courts are going to hold qualifying patients’ and designated caregivers’ proverbial feet to the fire when it comes to the statutory limits of possession medical marijuana.  Anything over 2.5-ounces is strictly verboten, and it appears that law enforcement and prosecuting agencies – statewide – will not hesitate to arrest and prosecute, respectively, medical marijuana cardholders that are even, literally, 1-ounce over the threshold.

Ultimately, the Court of Appeals vacated the trial court’s denial of the prosecution’s motion to preclude Gillie’s “immunity” defense, and sent the matter back to the trial court for resolution; however, Gillie’s attorneys have since filed a Petition for Review (of the Court of Appeals’ decision) with the Arizona Supreme Court – so stay tuned (I will update this blog post after the Arizona Supreme Court either denies to review Gillie’s Petition, or accepts it, and makes a ruling).

In the interim, if you are a designated caregiver with up to 5 qualifying patients, make sure you do not possess, at any given time, more than 2.5-ounces of marijuana when you delivering same to a qualifying patient.  Moreover, if you have a “bumper crop” of marijuana that amounts to more than 2.5-ounces, your best bet is not possessing more than 2.5-ounces of the “excess” when you are transferring/donating it to a non-profit dispensary or (other) qualifying patient.

If you, or a loved one, as a qualifying patient or designated caregiver under the AMMA, ever face criminal prosecution for Possession of Marijuana, Possession of Marijuana for Sale, and/or Possession of Drug Paraphernalia charges, please do not hesitate to contact me for help.


Maricopa County Ain’t Mayberry and MVD Ain’t Hooterville When It Comes to Aggressive (and Reckless) Driving

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. on Thursday, October 15, 2015.

About 2 or 3 times a week, I get calls or emails from people who have been stopped and cited, or in some cases, arrested, by police officers in Maricopa County (usually on the freeways, but sometimes, on city streets) for Aggressive Driving or Reckless Driving.

Most recently, earlier this week, I received a call from a fellow who had been stopped and almost arrested for Aggressive Driving by an Arizona Department of Public Safety (“DPS”) Officer on I-10.  This particular guy had been accused of speeding, which he denied, and of making unsafe lane changes.  He was very upset about the whole deal, and felt that he had been “targeted” by the DPS Officer.

One of the things that stuck out about this particular call was that this fellow had blown off and rejected a plea offer made by a Deputy Maricopa County Attorney and was now set for Trial.  I asked him several pointed questions about the nature of the plea offer, he told me it was to Excessive (or, Criminal) Speeding, Arizona Revised Statute section 28-701.02, which is a lower level misdemeanor, and carries FAR less draconian penalties at MVD on their point system (3 points as opposed to 8 and an automatic suspension of his driver’s license/privilege to drive), in addition to exposing him to far less jail time (zero if he took the plea), than he’d face if he were convicted at Trial (up to 6-months, maximum, in jail).  I asked him if the plea allowed (or disallowed) a request to have the Judge send him to Defensive Driving School in lieu of being convicted on the Criminal Speeding, and he said that he “didn’t know.”

Understand that a Court will NOT appoint an attorney to represent an indigent person (a person that cannot afford an attorney) facing criminal charges IF the prosecutor is not seeking probation or jail time (up front).  In this person’s case, the State just wanted a fine.  Thus, this fellow had no attorney to advise him of his options, nor did he have anyone to explain to him the draconian implications that he and his privilege to drive would face from MVD, should he be convicted at Trial.

What brings me to Mayberry and Hooterville was this guy’s expressed belief to me that he would simply go to Court, meet with a kindly judge, explain his situation, and be told “well son, you seem like a nice boy, let me just tell the prosecutor to dismiss this whole thing, and you just go on home!”

Like I told him, this ain’t Mayberry.

First, the criminal justice code in this state (and many others) were re-written during and immediately after the Reagan era. During the hey days of the Reagan “revolution,” legislators and many people believed that criminals/people accused of crimes had been, somehow, “coddled” by “liberal judges” in the past, and that judicial discretion in criminal cases needed to be limited, so these criminals would not “get away” and would “get what they deserved.”  The practical impact of this limited judges from exercising discretion to what they saw fit in the particular case that was before them, to following mandatory sentencing provisions written into these revised criminal codes.  Statutes re-written by legislators and signed into law by governors now instructed the judges as to what they “shall” and “shall not” do, as opposed to what they “may” and “may not” have done in the past.

Second, prosecutors – particularly ones beginning their legal careers – which is often the case of prosecutors handling these types of lower-level, misdemeanor traffic cases in the Maricopa County Justice Courts, especially – do NOT get promoted and receive raises from their supervisors by “looking out” for the “little guy,” and “cutting breaks” for people.  They are there to do a job – and that job is to convict people of crimes when they believe there is a reasonable likelihood of doing so.

In this fellow’s particular case, he was charged with Aggressive Driving, which is basically comprised of civil or criminal speeding, PLUS:

  • failure to obey traffic control devices, and/or
  • passing or overtaking on the right, off the roadway/pavement, and/or
  • making an unsafe lane change, and/or
  • following too closely, and/or
  • failure to yield the right of way.

Now, a police officer COULD cite someone separately with one or more of these offenses, as I have seen many citations where they do just that.  When/If the officer DOES ultimately decide to cite someone with Aggressive Driving, it ups the “ante,” if you will, considerably.

The penalties for a first time conviction of Aggressive Driving, as a Class 1 misdemeanor, are:

  • up to 6-months in Jail, and/or
  • up to 3-years of supervised or unsupervised probation, and/or
  • up to a $2,500 fine plus an 84% surcharge, and
  • mandatory Traffic Survival School (which is NOT Defensive Driving School – where you attend or complete it online and get the ticket dismissed – but an ALL day, in-person program where your fellow students will primarily be people convicted of DUIs, Reckless Driving, and Racing), and/or
  • a 30-day suspension of the person’s driver’s license/privilege to drive (which is, mercifully, left up to the discretion of the judge, in THIS particular instance).

Going to Trial on a “the cop had it out for me” defense is usually NOT going to work, especially in a case such as the one we have here where the Trial is NOT jury eligible (however, Reckless Driving IS jury eligible).

What this caller needed was an attorney that had a firm understanding of the statutes at play here, as well as the consequences for the person’s driver’s license that he faced at MVD, rather than going it alone, and stepping into a Trial that he was ill prepared to defend.

Med Marijuana

A Metabolite By Any Other Name…

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Friday, December 19, 2014.

Back in November of 2010, Arizona voters narrowly passed (with 50.1% of the vote) what was then called Proposition 203, which “legalized” medical marijuana.

Against this backdrop, the Arizona Supreme Court, in an April, 2014 decision, State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), essentially defined what type of drug metabolite is illegal when it comes to Arizona’s DUI law.  Specifically, one of Arizona’s DUI statutes prohibits a person from driving or being in actual physical control of a vehicle “while there is any drug . . . or its metabolite in the person’s body.” A.R.S. § 28-1381(A)(3).  The Arizona Supreme Court, in the Harris decision, made it clear that only a metabolite that causes impairment runs afoul of the law (A.R.S. § 28-1381(A)(3)).

In Harris, the defendant, Hrach Shilgevorkyan, was stopped by Mesa police officers for speeding and making unsafe lane changes.  Following the stop and some field sobriety tests, Mr. Shilgevorkyan (hereafter, “Mr. S”) admitted to the officers that he had smoked “weed” the previous night. The officers promptly arrested Mr. S, and had his blood drawn.

The test of Mr. S’s blood revealed only the presence of Carboxy-THC, which is a metabolite, or by-product of the body breaking down the primary psychoactive component of marijuana, tetrahydrocannabinol (better known as “THC”).

Mr. S was subsequently charged by the State with 2 counts of DUI:  driving while impaired to the slightest degree by drugs, A.R.S. § 28-1381(A)(1), AND driving with a drug or its metabolite in the body, A.R.S. § 28-1381(A)(3).

An evidentiary hearing was held before the Trial court where the following facts were acknowledged by the court:  (1) Hydroxy-THC, a marijuana metabolite that causes impairment, does not exist in the blood for very long, (2) Hydroxy-THC and Carboxy-THC are the 2 major marijuana metabolites, (3) Carboxy-THC is inactive and does NOT cause impairment, and (4) Carboxy-THC can remain in a person’s body for as many as 28-30 days after ingestion of marijuana.

After the Trial court granted Mr. S’s Motion to Dismiss, the State appealed, and the matter eventually wound up before the Arizona Supreme Court.

The defense argued that “metabolite,” which is not defined anywhere in the Arizona statutes, is singular and not plural as it is written in A.R.S. § 28-1381(A)(3), and thus since the primary metabolite of marijuana, Hydroxy-THC, was not found, the analysis should end there.

The State countered with the argument that “metabolite” means ALL metabolites, primary or otherwise; there is a flat ban on any and all metabolites pursuant to A.R.S. § 13-1381(A)(3).

The Arizona Supreme Court found neither argument especially persuasive. They took issue with the State’s argument, reasoning that if there was a flat ban on ALL drugs and metabolites, otherwise legal conduct (i.e., ingesting medical marijuana) would be outlawed, specifically mentioning the AMMA.

The Court noted “[b]ecause Carboxy-THC can remain in the body for as many as 28 to 30 days after ingestion, the State’s position suggests that a medical marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.”

The Court then moved on to the legislative history behind the DUI-drug/metabolite statute and noted that the Arizona Legislature, in their infinite wisdom, sought to prevent impaired driving.

The Court subsequently held that the “metabolite” referenced in A.R.S. § 28-1381(A)(3) is limited to any of a proscribed substance’s metabolites that are capable of causing impairment.” (emphasis supplied).

Because Carboxy-THC, the only metabolite found in Mr. S’s blood, did not cause impairment, the Arizona Supreme Court vacated the Court of Appeals’ prior decision reversing the Trial court’s original dismissal of the case, and affirmed the Trial court’s dismissal.

What this means is that a marijuana user who ONLY has Carboxy-THC (or any other non-impairing marijuana metabolite) in his/her system, cannot be prosecuted for an (A)(3) Drug-DUI, and the State would be hard-pressed to convict on an (A)(1) (impaired to the slightest degree) as well.

Isley Bros

Medical Marijuana: Between the States

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Thursday, July 24, 2014.

With apologies to the Isley Brothers, much has been written, separately, about the medical marijuana laws in Arizona, California, NevadaOregon, Washington, and Colorado, but less about what happens when a medical marijuana card holder with an amount of medical marijuana in his or her possession from one state, is found in possession of that marijuana in another state (between the states, or sheets, if you will…)

Very recently, I had this exact issue arise in a case of mine.  My client, a valid medical marijuana card holder from California, was a passenger in a vehicle that was stopped in metropolitan Phoenix, Arizona for speeding. During the officer’s investigation, he contacted my client, and during the course of the conversation, my client admitted to possessing a small amount of medical marijuana that he had purchased in his home state. The officer, apparently not understanding the Full Faith and Credit Clause of the United States Constitution, subsequently arrested my client for Possession of Marijuana, a felony under Arizona law.

Interestingly enough, the authors of Arizona’s medical marijuana statute must have contemplated such issues arising, as A.R.S. section 36-2804.03(C) states:

A registry identification card, or its equivalent, that is issued under the laws of another state . . . that allows a visiting qualifying patient to possess or use marijuana for medical purposes in the jurisdiction of issuance has the same force and effect when held by a visting qualifying patient as a registry indentification card issued by the department, except that a visiting qualifying patient is not authorized to obtain marijuana from a nonprofit medical marijuana dispensary.

Since my client had a valid, California issued medical marijuana card, and he did not obtain the marijuana from an Arizona nonprofit dispensary, we were able to get the possession case dismissed in its entirety.

The moral of this story is to make sure that you have a valid, up-to-date medical marijuana card in your possession at all times when you travel to or through Arizona, and that the medical marijuana you carry is identifiable as being from your home state.  As can be seen from my client’s unfortunate experience, you could still be subject to arrest from an uninformed police officer, but you can mitigate the damages such an experience presents by hiring an experienced, Arizona-licensed criminal defense attorney who is familiar with Arizona’s medical marijuana laws to help you.


The Worst of Both Worlds: Think Twice before Refusing a Breath or Blood Test in Arizona

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Thursday, July 24, 2014.

Many Arizona motorists would be surprised to learn that by simply driving a motor vehicle in the state, they have already consented to alcohol testing if arrested for driving under the influence (“DUI”).  This is typically referred to as Arizona’s “admin per se” or implied consent law.

In fact, this “implied consent” is rooted in an Arizona statute, A.R.S. section 28-1321, that allows police to subject a driver to blood, breathalyzer, or urine tests if the officer has a reasonable belief that the driver is under the influence of alcohol, or is under 21 years of age with alcohol in his or her system.  Arizona law also expressly permits the police – and the police alone – to choose the type of testing they will administer.

While drivers may attempt to refuse such to submit to such alcohol testing, there are severe penalties for doing so in Arizona.  For instance, if a driver refuses alcohol testing in Arizona after being arrested for a DUI, the arresting officer will not only require the driver to surrender his or her driver’s license, but will also inform the driver that their license will be suspended for one year – which typically goes into effect 15-days later.  It should be noted that this suspension period increases to two years for a second refusal within seven years.

A driver accused of refusing a test may request a hearing on the matter, but there is a limited time within which to to make such a request (15-days from the date the implied consent affidavit was served on the driver by the police officer).  Moreover, the hearing following a refusal only addresses a limited number of issues, which include:

  • Whether the arresting officer had reasonable grounds to believe the driver operating the vehicle was under the influence of alcohol or drugs
  • Whether the driver was under arrest
  • Whether the driver refused testing
  • Whether the driver was informed of the consequences of a refusal

If a driver fails to request a hearing – or, if at the hearing, the wrongful refusal is upheld – the driver’s license will be suspended.  However, after the completion of 90-days of the suspension, the driver may apply for a special ignition interlock license.  If approved, the driver must keep an ignition interlock device installed in his or her vehicle for the remaining period of his or her license suspension.

The Worst of Both Worlds

Under Arizona law, when a driver is arrested for DUI, any failure on his or her part to expressly agree to or complete alcohol testing will be deemed a refusal.  While the police can not typically “force” a driver to submit to testing, this does NOT apply if the police can ultimately obtain a search warrant for the driver’s blood (which then would allow the police to forcibly obtain the blood sample). Thus, a driver can wind up with the worst of both worlds: a driver’s license suspended for one year, AND criminal DUI case with their blood-alcohol content used against him or her.

In addition, the police can administer a blood-alcohol testing without the express consent of the driver when the driver is unconscious; under the theory that a driver in an unconscious state is unable to withdraw his or her implied consent provided for under Arizona law.

It is important for drivers to consider all of the possible ramifications for refusing alcohol testing under Arizona law.  After all, even if a driver refuses a test, the driver could still end up with a DUI case anway. Given the intricacies present in Arizona DUI law, it is best to consult with a skilled, Arizona-licensed DUI defense attorney if you are ever in the unfortunate position of being charged with a drunk driving offense.

Bieber Canada

Oh, Canada! Is Biebs Headed Back to the True North as an Immigration Consequence to his Potential Criminal Conviction(s) in the U.S.?

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Monday, January 27, 2014.

Pop star Justin Bieber’s recent arrest on DUI, drag racing, and resisting arrest charges in Miami has much of the legal blogosphere (and some fans) wondering whether the arrest and/or conviction on any or all of the charges will affect Bieb’s residency status here in the United States.

For those that are not aware, do not have teenaged daugthers, or have been living under a rock for the past 5 years, Justin Bieber is a mega popular pop star that hails from Stratford, Ontario, Canada.  Mr. Bieber is more than likely here in the United States on an O-1 Visa.

According to U.S. Citizenship and Immigration Services, an O-1 Visa is granted to individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry, and has been nationally or internationally recognized for those achievements.  Biebs is arguably eligible for an O-1B Visa for his “extraordinary ability in the arts.”  O-1 Visas initially allow the alien to reside in the U.S. for 3-years, but can be extended upon application for 1-year increments after the initial 3-year period expires.  My guess is that Mr. Bieber is currently residing in the United States on one of the 1-year extensions.

The DUI and drag racing charges should not affect Mr. Bieber’s residency status that much, if at all, as neither are deportable offenses.  The resisting arrest charge, however, requires further analysis.

First off, I am an Arizona-licensed attorney, and am not licensed in Florida, but as I understand it, from reading media reports, Mr. Bieber has been charged with “resisting arrest, without violence,” which (lucky for Mr. Bieber) is a misdemeanor offense.  In Arizona, resisting arrest is a felony, and it has been my experience (particularly in Maricopa County, Arizona) that prosecutors, more often that not, are “Gung Ho” on these types of cases.

In the immigration realm, Mr. Bieber could be subject to removal from the U.S. if the resisting arrest were to be deemed an “aggravated felony,” or if any, all of the charges were deemed to be “crimes involving moral turpitude.”

A crime of violence would be considered an “aggravated felony” pursuant to 8 U.S.C. section 1101(a)(43) of the Immigration and Naturilization Act (“INA”), so long as the crime is punishable by a sentence of 1-year or more.  Here, Biebs would seem to be in pretty good shape, as the Florida resisting arrest offense that he has been charged with states that the offense was committed “without violence.”  In addition, since the Florida offense is a misdemeanor, it is only punishable by “up to” 1-year of imprisonment.

Resisting arrest could also be deemed to be an “obstruction of justice” offense (and it is defined as such under the Florida statute), which could subject the alien to removal, pursuant to 8 U.S.C. section 1101(a)(43)(S).  Here again, however, Mr. Bieber is probably safe, as the subsection requires that the offense requires punishment of more than 1-year imprisonment.

Mr. Bieber could also be on the slow boat back to Canada if it were deeemed the offenses were crimes of moral turpitude (“CIMT”) under the INA.  Biebs could arguably be deported if he were found to be (1) convicted (2) of crime(s) involving moral turpitude (3) committed within 5-years after “entry,” and (4) a prison/jail sentence of 1-year or longer may be imposed.

Is resisting arrest a CIMT?  Probably yes, with the caveat that some violence towards the police officer must have occurred.  Moreover, the other elements of the definition would have to apply:  Mr. Bieber would have to be convicted, the resisting arrest would have to be deemed a CIMT (which it probably isn’t, since it did NOT involve violence), the offense would have to have been committed within 5-years of Biebs’ entry into the U.S. (which it probably was), and a prison/jail sentence of 1-year or more may be imposed.

To be on the safe side, if I were representing Mr. Bieber on the criminal case, and there were no defenses to the allegations, I would try to negotiate a plea where Mr. Bieber would only have to plead guilty or no contest on one of the offenses other than the resisting arrest (with the remainder to be dismissed), and try to get the prosecutor to agree – in writing – that the offensecould only be punishable by up to 364-days of imprisonment (to avoid any possible issues with the 4th prong of the CIMT definition).

I’ve read a few blogs where attorneys were predicting fire and brimstone for Mr. Bieber, particulary when it came to the immigration consequences of his potential criminal conviction(s).  In the end, I am a Belieber that Mr. Bieber, with skillful representation, will be just fine in both arenas (criminal and immigration).

Big Brother

Police Video Surveillance at ASU…Necessary or 1984?

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Friday, October 18, 2013.

Recently, a politically conservative Phoenix City Councilman, Sal DiCiccio, complained to the media about “big brother” type aspects of police surveillance at tailgating activities on the Arizona State University main campus prior to the Sun Devil vs. USC Trojans game on September 28, 2013.  You can read one local TV station’s spin on it here.  Specifically, Mr. DiCiccio publicly took issue with the presence and use of a Phoenix Police vehicle, circulating among tailgaters, that had a camera attached to a pole atop the vehicle, presumably, recording images of the people present.

Mr. DiCiccio’s politics and mine are complete polar opposites, but I share his concern.  Why is a Phoenix Police Department “Homeland Security Team” (whatever that is) on campus in another city, where not only ASU Police, Tempe Police, and the Arizona Department of Public Safety are present?

Predictably, the response from Phoenix Mayor Greg Stanton, was, essentially, “don’t worry about what the police are doing; we are trying to protect you from a Boston Marathon-type scenario.”

Sorry Mayor, but we as citizens DO need to be concerned about what the police are doing.  It is clear that police are charged with investigating crimes, and may even stop, briefly detain, and frisk a person if they have reasonable suspicion to believe that criminal activity is afoot, and the person has a weapon.  See Terry v. Ohio, 392 U.S. 1 (1968).  I don’t have an issue with police officers from ANY jurisdiction (so long as they’re authorized to be there) walking around observing tailgaters on campus before a big game, making sure that people are safe, and that crimes aren’t being committed, the problem I have is with the police RECORDING  images of these same people legally minding their own respective business.

What public safety issue is advanced by recording images of people eating hot dogs and drinking beer prior to a football game?  Who is reviewing the images, how long are they kept, and where are they kept?  How, exactly, does that public safety issue, if there is one, trump the privacy rights of the individuals recorded, especially in Arizona, where the Arizona Constitution’s safeguard against the invasion of the right to privacy by the police is even stronger than that of the United States Constitution?