Free in Kentucky: Legalized Marijuana

Free in Kentucky: Legalized Marijuana: This post might seem 3 weeks late – but I promise, there’s a reason for it.  We’ll talk about the timing relevance later. On January 1,...

Legalized Marijuana

This post might seem 3 weeks late – but I promise, there’s a reason for it.  We’ll talk about the timing relevance later.

On January 1, 2014, the weed fairy (with the help of state legislature) brought Colorado the gift of legal pot.  The streets were alive with the patchouli smelling masses – thrilled to spend 2 or 3 times the street market value for legalized marijuana.  There were literally thousands of people in line at numerous dispensaries. 

Local black market drug dealers were on suicide watch.

You know how every year we hear about black Friday shoppers fighting, trampling, or even killing other people in the shopping frenzy?  That didn’t happen in Colorado.  As reported by the Denver Post:  Denver City Councilman Charlie Brown said he was "pleasantly surprised" by the large, mellow crowd he encountered during a visit to Medicine Man dispensary in Denver, where lines wrapped around the building and into a parking lot.

"It's kind of a relief, frankly," he said. "This could have gone a lot of different ways. So far, so good."

"What I love about it," Denver Councilman Albus Brooks said, "is the peacefulness of the crowd ... and the diversity."

No shit.  Government officials were stunned and relieved that stoners were calm and pleasant.  Shock and Awe.

In other news, the President made headlines this past week (now we’re getting to the relevance on the timing of this post) saying that marijuana was a “bad idea, waste of time and not very healthy” but “less dangerous than alcohol.”  And then some people got angry because they genuinely didn’t know that.  REALLY?

If you don’t know anything about marijuana, stop entering the debate on whether it should be legalized.

Ask any police officer* and they will tell you exactly what President Obama said.  Marijuana is less dangerous than alcohol.  How are there still people who don’t accept that statement as fact?  Are there really still people who don’t understand that nobody has ever died from a marijuana overdose – meanwhile, the CDC estimates that about 88,000 people per year die of excessive alcohol consumption? 

While you’re talking to that police officer, ask the officer how many domestic violence runs they’ve been on that started with marijuana consumption and how many involve alcohol abuse.  I bet they tell you that 9 times out of 10 the subject was hammered drunk and that last 1 time, he was just an asshole.  But 0 times out of 10 are because someone smoked a joint.

Ok I’m done ranting about the “danger” factor.

Let’s get back to Colorado and a little closer back to the subject of today.

Over 20%!!!!!!!!!!!!!!!!!!!  TWENTY.  That’s the sales tax on marijuana in states that have legalized.

At the ceremonial first purchase in Colorado on January 1, the first customer was 32-year-old Sean Azzariti, an Iraq war veteran who campaigned for marijuana legalization and said he uses cannabis to alleviate symptoms of post-traumatic stress disorder. Under a canopy of cameras, Azzariti bought an eighth of an ounce of the marijuana strain Bubba Kush and a package of marijuana-infused candy truffles.

"We did it!" a beaming Azzariti said at the end of the purchase.

The cost was $59.74, including $10.46 in tax. At the bottom of the receipt was the message "Thank you for your purchase!"

What you should take away from the Sean Aszzariti story is that his receipt evidences OVER TEN DOLLARS in tax on a $49.00 purchase.  These hippies (I mean, suffering Iraqi war veterans) are beaming and standing in line to pay over 20% in sales tax on marijuana.  Maybe that’s how, in only 3 short weeks, the tax revenue on marijuana in Colorado is already enough to pay all of the yearly salaries for the governor and his staff.  A non-partisan tax commission in Colorado estimates that the state will bring in an additional $70 million this year on marijuana.

Let’s talk about some of the specifics of legalization.  More precisely, I would call the legislative move “State Decriminalization for Personal Use.”  Because none of this makes marijuana “legal” under federal law.  And it ain't 100% legal at the state level, either.

It is legal to purchase and possess up to one ounce of marijuana in Colorado.  It's also legal to cultivate up to 6 plants (up to 3 can be mature).  And if you are an out of state resident you can purchase a quarter of an ounce.  However, the possession of an abundance of pot is still criminal conduct.  Smoking out in the open, in public, is also illegal.  

Basically, if you possess an ounce or less there is no penalty.  If you possess over an ounce, it is considered a petty offense carrying up to 15 days in jail and a $100 fine.  2-6 ounces is serious legal trouble carrying a penalty of up to a year in jail and $1000 fine.  6-12 ounces can get you up to 18 months in jail and a $10,000 fine.  Anything over 12 ounces is a felony.

Trafficking is still very much illegal.  In Colorado trafficking of any amount is a felony, and the possession of 8 ounces or more is considered possession with the intent to distribute.

A key difference between the Kentucky and Colorado trafficking laws is that in Colorado, if you GIVE someone less than an ounce of marijuana for “no remuneration,” it isn’t considered a crime.  In Kentucky, it doesn’t matter if you receive compensation.  The “transfer” of marijuana makes it trafficking.

By the way, if you are a Kentucky resident you CAN go to Colorado and purchase marijuana, assuming you are old enough.  However, it should go without saying that if you take that legal purchase into another state that criminalizes marijuana possession – your legal weed just became illegal.  So you can’t legally bring it back into Kentucky.

For more questions on marijuana possession and trafficking, call Greg Simms at Murphy & Powell, PLC. 502.618.4949.  My door is always open.

**with the exception of officers that work on marijuana eradication teams – after all, their jobs depend on stomping out marijuana.

Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...

Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...: There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 g...

Passing Out? Make Sure Your Keys Aren't in the Ignition.

There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 go-

1) They didn’t read me my rights!!!!  It probably doesn’t matter.  The cops don’t have to read your Miranda Rights just because they arrest you.  Long story short, they only have to Mirandize you if you are going to be interrogated whilst in custody.  Blame Dragnet for this one.

2) If you put a penny in your mouth, it will beat the breathalyzer!!!  No.  Of course that’s not true.  Don’t be a jackass.

3) It’s illegal to drive without shoes on!!!  Not true, but I can see how one might reasonably believe this as it could be a safety issue.

4) If you’re drunk in a car, make sure the keys are out of the ignition so you don’t get a DUI!!!  Actually, this one holds a lot of weight and is damn near spot on.  And that brings us to the blog post of the day – Wells factor DUIs.

What happens when the police roll up on someone sleeping in a car, assuming the sleeping person is under the influence?  The answer, as it almost always is: It depends.  There are a lot of fact specific questions that need to be asked in order to find out if the Commonwealth can actually prove someone was driving under the influence. 

First things first, we have to define the word “driving” and it does not mean “driving” (doesn’t that sound like some serious lawyer BS?).

“DUI” and ‘Driving Under the Influence” are common terms for a legal charge in Kentucky based on KRS 189A, the statute that governs Operating a Motor Vehicle Under the Influence.  The key word is “operating” and not “driving.”  It is possible to get a DUI when you are not driving.

Now back to our hypothetical situation. 

The police roll up on Frank the Tank, who is passed out in the Red Dragon.  He just took the restrictor plate off and she ain’t exactly street legal, so we’ll keep that on the downlow.  But let’s say Frank is drunk in the old muscle car – and he is completely unconscious. 

With this information, we still don’t have enough to know whether Frank will be convicted of DUI.  Some of the first questions I would have for Frank would be “How did you get there?”  “Were you parked in a legitimate parking spot?  If not, where were you?”  “Was the engine running?” “Was the car in park?” And yes, I would certainly ask “were the keys in the ignition?”

My questioning is based on the Wells factor test that Judges use to determine if there was probable cause for a DUI arrest.  Commonwealth v. Wells is a published Kentucky case that sets forth some things to consider in order to determine whether there was sufficient “operation” of a vehicle.

The Wells factors include: 1) whether the person in the vehicle was asleep or awake; 2) whether or not the motor was running; 3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and 4) the intent of the person behind the wheel. Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986).

One of the beautiful quotes from Wells is “a sleeping person is seldom operating anything” quoting Pomeroy.  But that only takes care of the first Wells factor.  The second factor concerns whether the motor is running.  If it is not running (especially if the keys are out of the ignition) then Frank the Tank passes the second Wells factor.  The next one is a bit tricky.  If Frank is passed out AT at red light, we have a problem.  If he is on the side of the road, that’s a little better but maybe not good.  If Frank is in a parking lot or in his driveway and is legally parked, then GREAT SUCCESS!  we pass the third Wells factor.  Lastly, we look to the intent of the person behind the wheel.  Again, if Frank is unconscious, he likely has formed the mental state to do anything except drool on himself.  The intent to drive is not present.

It should be noted that the factors should be taken as a totality of the circumstances test, meaning the failing or passing of one factor doesn’t necessarily pass or fail Frank the Tank.

That leaves us with the lesson for the day:  If you are going to pass out in a car, you should 1) be in a legal parking spot, 2) make sure the keys aren’t in the ignition, and 3) make it a little easier on your lawyer and pass out in the back seat or passenger seat, instead of the driver’s.

I hope this has cleared up any pass out/Wells DUI questions.  If you still have questions or concerns about DUI in Kentucky, call me – Greg Simms – at 502.473.6464.

My door is always open.

Free in Kentucky: The Knockout Game: What Crimes are Committed?

Free in Kentucky: The Knockout Game: What Crimes are Committed?: The big story this past week in criminal law is the “knockout game.” Last things first – I’ve heard several people say this is not a “g...

The Knockout Game: What Crimes are Committed?

The big story this past week in criminal law is the “knockout game.”

Last things first – I’ve heard several people say this is not a “game” because it is dangerous/reckless/a terrible idea.  I submit that the fact that something is dangerous or reckless does not preclude it from being a game.  Take Russian Roulette, for example.  It’s a horrible idea, and just about as dangerous as games come – but it’s a game.  If people play it for the purpose of gambling or amusement, it can be a game.

According to various news sources I am too lazy to cite, there are groups of young people (mostly guys) who make a game out of knocking out strangers.  One of the aggressive youngsters will turn to another aggressive youngster and dare (or bet) him to knock out some nearby person.  The really messed up part of the game is that they don’t necessarily “pick on someone their own size.”  The victims of the game have been men, women, and even children and elderly people.

Then the stranger gets punched.

Videos have surfaced wherein the victim falls to the ground, unconscious and seemingly lifeless.  There have also been multiple stories regarding the intended victim using force, sometimes deadly, to defend themselves.

Today we’re going to talk about the legal ramifications of the knockout game.

As you've probably already guessed, this type of behavior is clear cut “Assault.”  But we’re going to turn to the Kentucky Revised Statutes to figure out what type of assault we are dealing with, and whether it could be a higher crime.

I’ll go ahead and spoiler alert Assault in the 4^th Degree for you.  As long as there is some sort of injury received by the victim, it counts as Assault 4^th.  Assault in the 3^rd Degree (for the purposes of this conversation) is reserved for assault on public servants like police officers, fire fighters, etc.  The real question for today is whether the actions in the knockout game would constitute Assault in the 1^st or 2^nd Degree – because they are felony offenses.

Since we’re not dealing with deadly weapons the real question is: did the victim receive a “serious physical injury?”  And that depends on the circumstances.  Serious Injury is defined in the KRS under 500.080(15) and states:

"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”

So basically, yes, playing the knockout game could constitute a felony assault offense – but it depends on how bad the victim gets hurt.

Let’s say the victim is one of these little old ladies, and she is struck hard enough to cause death.  If the youngster playing the game did not intend for her to die, would it be murder?  After all, the point of the game is just to knock people out and not to kill them.

The answer to that question is maybe.  It could still constitute Murder depending on how reckless or wanton a jury thought the conduct of the "knockout game" was.  I think most everyone would agree that playing the knockout game is reckless behavior.  But reckless conduct only gets us to Reckless Homicide – which carries 1-5 years in prison because it’s a class D Felony.

The question is whether the conduct rises to the level of wanton conduct with conscious disregard for human life.  The “depraved heart” section of the Kentucky Murder statute states that the actions can constitute murder if “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

Personally, I think this is where defining the conduct as a “game” would help convict the participant of a higher crime.  It sounds horrible.  To take something so dangerous as punching an elderly woman in the face or head, and call it a “game” makes the conduct seem more reckless and could cause jurors to believe it rises to the level of wanton conduct.

So the answer to the murder question is, yes – if a jury believes the game is wanton conduct and that the assailant acted with extreme indifference to human life – the knockout could constitute murder in some cases.

As a side note, some people have asked whether this could be a "hate crime" if committed by members of one race against members of another race.  And that type of thing depends on the motives of the attacker.  From what I understand the choosing of a victim in the knockout game is somewhat arbitrary and on the fly.  It isn't based on race, age, or some protected class.  If that is the case, it most likely wouldn't constitute a "hate crime."  

But that doesn't mean the conduct would go unpunished.

If you have any more questions about Assault, Murder, or other homicide crimes, please let me know.  My door is always open.  Feel free to give me a call.

Greg Simms

Louisville DUI Lawyer

Murphy & Powell, PLC.

502.473.6464

Free in Kentucky: "Burglary" and "Robbery" Don't Mean the Same Thing...

Free in Kentucky: "Burglary" and "Robbery" Don't Mean the Same Thing...: Robbery and Burglary are often used interchangeably by the general public.  “Some Ahole burglarized my car.” or “My house got robbed last n...