What should I do if I am stopped or approached by the police?
See the information here: If You're Stopped.

How does the government initiate charges against me?
You may be investigated for a criminal offense and receive a written citation from the officer who has investigated you.  Or, you may be released without a citation, and later receive a summons to appear in the mail for a hearing, which can take place months or years later.  This period of time between the alleged crime and the “deadline” to file charges against you is known as the “statute of limitations.” If charges are not filed against you and you are released, it does not mean the case is over.  You may receive a summons to come to court after the government has completed investigation and has decided how to proceed.

If charges aren’t filed against me for months, doesn’t that violate my right to a speedy trial?
The answer to this question depends on the state you are in and the exact circumstances of your case.  If you have been arrested for a marijuana or drug crime, the government may need to file charges within a certain time period.  If you have been arrested for a marijuana or drug crime, you should consult with one of our attorneys immediately even if  you have not been charged yet. 

If there is a very large and unreasonable delay in filing your charge, a good drug defense attorney can sometimes create an issue even if it is filed within the statute of limitations.  Often, this would require actual proof that you have suffered “prejudice” from the delay in filing your case.  This is hard to prove, but it’s worth discussing with your marijuana defense lawyer if you think it may apply.

Should I talk to a lawyer before charges are filed against me?
It is important to consult an attorney as soon as possible after you are aware that you are being investigated or charged with a crime.  Some important work can be done prior to the filing of charges against you.  And if charges are filed, some legal objections and challenges must be raised by an attorney at the first appearance or they are “waived” and you can no longer raise these issues at a later time.  Having an attorney at every stage of the proceedings means that all your rights are protected.  As stated above, you should consult with one of our attorneys immediately even if  you have not been charged yet. 

 Also, it’s important to have a good drug defense attorney begin the process of investigation – witnesses’ memories fade, and information helpful to your defense may become harder to obtain as time goes on.  An attorney can also advise you about taking remedial action quickly, in order to show the Judge and Prosecutor how seriously you take the allegations.  For example, a drug crime defense lawyer may recommend to clients prior to the filing of their charges that they obtain (confidential) chemical dependency evaluations, install an ignition interlock device on their vehicle, enter counseling, begin community service, or one of many other options that may be helpful to their particular cases.

What if I don’t like the judge on my case?
Depending on the state you are in, you may have the right to object to one judge on your case by filing what’s called an “affidavit of prejudice” or a similar pleading.  You may need to demonstrate that there was actually a reason to conclude that the judge would be prejudiced against you specifically.  In fact, most affidavits of prejudice are often filed for legal and tactical reasons by a criminal defense attorney.  You should consult with a qualified drug crime defense lawyer before making a single court appearance in your case, because if you appear before a judge for one hearing and you do not object to the judge hearing your case, you most likely have waived your ability to object to that judge later.

You may also be able to disqualify a judge from your case if  you can demonstrate “actual” prejudice.  For example, if the judge knows you personally and has a personal grudge against you and you can prove this, the judge should recuse him or herself from hearing your case.  This demonstration of “actual” prejudice is necessary to remove another judge from hearing your case.  Otherwise, you may be stuck with whoever is assigned to hear your matter.

What if I don’t like the prosecutor on my case? 
Usually, unless you can demonstrate some actual conflict of interest in the prosecutor handling your case, there’s not really a chance of having a specific prosecutor from your case.

What kind of process can I expect once the case is filed?
In most states, you will face misdemeanor drug charges in either state or municipal court.  The first hearing you can expect is the arraignment.  At that time, a formal “complaint” is filed against you (a document that lists the specific charge(s) against you, and you will usually (on the advice of an attorney) enter a plea of “not guilty.”  This does not preclude you from changing your plea at a later time, and it preserves all your rights.  If asked, you should not waive your right to a jury or speedy trial at this time.  The judge also has the authority to set some “conditions” on your behavior while the case is pending.  The judge can order bail/bond, if there is a fear for public safety or some reason to consider you a flight risk.  At arraignment, the “speedy trial clock” usually starts ticking.

From that hearing, your matter is typically set for some type of pretrial hearing.  Your next hearing may be called “case setting” a “pretrial conference” or many other names.  Some courts forego a pretrial hearing and set the matter directly for a “trial call” calendar, which is the step before trial, when your case is confirmed for a trial.

In a felony matter, your case can be initiated in a number of ways.  Depending on the nature of the charge and the state  in which your case is charged, you could be required to appear for a bail setting hearing, where the judge determines if there is probable cause to restrict your freedom by imposing conditions of release.  Conditions of release may include bail or bond, requirements to remain in a location, restrictions upon your use of alcohol or drugs, or orders to refrain from contacting victims or witnesses involved in the case.  If charges are not filed at this first hearing, the State typically has 72 hours in which they must either charge you with a criminal offense, or you must be released.  If you are released, they may file the offense months or years later, after investigation is complete.  The time frame for filing is known as the “statute of limitations.”

You have a constitutionally protected right to a jury trial for a criminal offense (unless you are charged in juvenile court).  The prosecutor also has a right to demand a jury trial in some circumstaqnces, even if you wish the trial to be held before a judge.  It’s best to consult with a marijuana attorney about the best strategy in your particular case regarding the type of trial to request.

Most cases do not proceed to a full trial.  Over 90% of cases settle with some sort of resolution (either a plea, deferred prosecution, diversion, etc.).  However, it is in your best interest to hire a good drug defense lawyer who is prepared to proceed to trial if that is in your best interest. 

What are the possible consequences of a criminal marijuana related conviction?
The consequences of a drug conviction can be quite drastic.  Beyond the basic effects of a criminal charge or conviction, a drug conviction in particular can cause a loss of your drivers license (even if no vehicle was involved in your charge), the loss of housing rights, or the loss of your ability to obtain federal student loans.  Along with the criminal consequences of drug possession and distribution, you can face the loss of real and personal property, through a process known as “civil forfeiture.”  If law enforcement has reason to believe your home, land, or personal property (including vehicles) was used in the context of drug possession, cultivation, manufacturing, or distribution of drugs.  If you have received any notices from the government indicating that your property may be forfeited, we STRONGLY suggest you consult with a drug defense lawyer IMMEDIATELY.  There are often very short timelines for responding to forfeiture notices. 

What is a "Drug Court"?
Since the 1980’s, several courts in the U.S.  began an experiment with “drug courts” – where the court process was hoped to reduce drug use and recidivism.  The programs usually  target non-violent drug offenders whose legal charges stem primarily from addiction.  If a defendant is given an opportunity to “opt-in” to a drug court, he or she is usually obligated to participate in a substantial drug treatment program, often fully funded by the drug court program.  Frequent urinalysis tests are required, and status hearings with the drug court judge are important.  The focus of the court proceedings are much more supportive, encouraging, and directive than a standard criminal court proceeding.  Some drug courts require participants to pay court fees, keep up with child support, and maintain approved housing.  If the defendant keeps up with all court-ordered obligations and treatment requirements, the charge may be dismissed at a later time.

What about medical marijuana?
Several states have passed medical marijuana laws.  Each state's laws are complicated an unique.  In many states, you must first get a medical marijuana license or certificate before you possess or use marijuana to avoid a charge.  Some states also allow a caretaker to possess marijuana for you.  The qualifications for a medical marijuana certificate or license vary drastically from state to state.  Most states also impose a limit on the amount you can lawfully possess.  If you are a medical marijuana user, or plan to become one, we STRONGLY suggest you consult with a knowledgeable marijuana defense attorney before you begin the process.  An experienced marijuana lawyer may will be able to guide you through the process of obtaining a valid certificate and prevent you from getting caught in any traps.  Click here to find a knowledgeable marijuana defense attorney in your area. 

Remember, federal laws still prohibit the possession of marijuana, even for medicinal purposes.  Even if you have a medical certificate for medicinal use of marijuana in your state, you can potentially face federal charges for possession.  Talk to your drug defense lawyer and your physician about the risks and options of medicinal use of marijuana.

What constitutional cases and theories would an experienced drug lawyer evaluate when analyzing my constitutional rights during a stop for driving under the influence of marijuana or other drugs?
The United States Supreme Court interprets the United States Constitution to give defendants powerful protections during arrests for driving under the influence of marijuana or other drugs.   No state may overrule these protections.  However, an experienced drug attorney will know whether your state constitution offers more protection for your rights than the United States Constitution. 

Under the United States Constitution police may stop your car for driving under the influence of marijuana or other drugs when they have either:

(1) A reasonable and articuable suspicion that a crime has occurred. Delaware v. Prouse, 440        U.S. 648 (1979); United States v. Cortez, 449 US. 411 (1981) ; or

(2) Probable cause to believe that a traffic violation has occurred. Whren v. US., 517 U.S. 806 (1996); or

(3) A proper sobriety checkpoint that has been established and justified by public interest.  The department must document in writing appropriate procedures to be followed in establishing and conducting a checkpoint, and law enforcement must implement those procedures. Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990); City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

During a traffic stop, officers may detain a driver to check for outstanding warrants and ask for relevant information about license, vehicle ownership, registration, insurance, and the driver's destination. Pennsylvania v. Mimms, 434 U.S. 106 (1978). Also, there is no reasonable expectation of privacy in the VIN number and officers are allowed to remove obstacles that obstruct the view of the number. New York v. Class, 475 U.S. 106 (1986).

Roadside questioning as the result of a routine traffic stop does not constitute custodial interrogation for purposes of the Fifth Amendment. Berkemer v. McCarty, 468 U.S. 420 (1984).

 Police may conduct a search shortly before, during, or after a lawful arrest for driving under the influence of marijuana. Chimel v. California, 395 US. 753 

Marijuana, pot, or other drugs falling within the plain view of a police officer who has the right to arrest you for driving under the influence of marijuana or other drugs can be seized and can be introduced as evidence. Harris v. United States, 390 U.S. 234 (1968).

The United States Constitution allows searches to occur at the same time as an arrest for driving under the influence of marijuana or other drugs because there may be a need to seize weapons and/or there may be a need to prevent the destruction of evidence of marijuana or other drugs. Preston v. United States, 376 US. 364 (1964)  The constitutional right to search a car without a search warrant is based upon the reasonable belief of an officer that the car contains marijuana, pot or other illegal drugs combined with the difficulty of securing a search warrant for a movable object.  Carroll v. United States, 267 U.S. 132 (1925); Welsh v. Wisconsin, 466 U.S. 740 (1984).

During a stop for driving under the influence of marijuana, a protective search of the passenger compartment of a vehicle is limited to those areas in which a weapon may be placed or hidden.   However, this search may only be permissible if the police officer reasonably believes the suspect may be dangerous and may gain immediate control of a weapon. Michigan v. Long, 463 U.S. 1032 (1983).

A drug detecting dog smelling an automobile's outside for marijuana or other drugs does not constitute a "search" within the meaning of the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Police may conduct a search as part of an inventory search governed by a specific agency policy. South Dakota v. Opperman, 428 U.S. 364 (1976).

Any consent given to police officers allowing them to search during a drug arrest for driving under the influence of marijuana or other drugs must be voluntary and knowing. Schneckcloth v. Bustamonte, 412 US. 218 (1973).

However, police may not search a car without a warrant if the police only issue a traffic ticket. Knowles v. Iowa, 525 U.S. 113 (1998).

These constitutional protections are very likely important to your case.  An experienced marijuana or drug defense attorney will consider all of the above issues, as well as many other cases, statutes, rules, regulations, policies, and other laws in considering your best defense.

What should an experienced drug lawyer tell his clients about saliva test kits and driving under the influence of marijuana or other drugs?
In response to concerns over driving while under the influence of marijuana or other drugs, all 50 states have enacted laws prohibiting driving while under the influence of marijuana or other drugs.

Drug detection may be difficult for police making a stop or arrest for driving while under the influence of marijuana.  Unlike driving under the influence of alcohol, where officers can use preliminary breath tests, there are limited roadside devices that can detect the presence of marijuana or other drugs.  

There are several saliva test kits for marijuana or other drugs currently on the market or in development. Manufacturers claim that these kits can immediately detect the presence of marijuana or illegal drugs in a driver’s system. The manufacturers also claim that these devices are efficient, noninvasive, uncomplicated, and reliable.    

Most of the manufacturers are claiming their devices are screening devices designed to only provide a rough qualitative indication of marijuana or other drugs.  However, one manufacturer has claimed to have developed a saliva test system to provide a "quantitative" measurement of marijuana or drugs.

Should these manufacturers' claims prove to be validated by independent testing, saliva test kits may prove to be quite prevalent in law enforcement.

An experienced drug attorney will know how to challenge a saliva drug test if it was used in your in your drug arrest for driving under the influence of marijuana or other drugs.  There is no standard answer to this question.  If you anticipate that this situation will come up in your case, we recommend you contact an experienced marijuana defense attorney in your area.

How may driving be affected by marijuana?
The government will allege that a driver under the influence of marijuana lacked reaction time and the ability to perceive danger the way other drivers would have.   However, several studies that have been done indicate that some drivers are better drivers when they are under the influence of marijuana.  Other studies have indicated an impairment is created when a person drives under the influence of marijuana.  So, it is very possible that a knowledgeable marijuana defense lawyer can significantly help you if you are charged with driving under the influence of marijuana. 

What do police look for in someone driving a motorcycle while making a drug stop or drug arrest for driving under the influence of marijuana or other drugs?
A common cause of single vehicle motorcycle crashes is the failure to negotiate curves.  More specifically, the motorcyclist will continue in a straight line until it strikes a stationary object. Impaired balance and coordination causes this. In less drastic cases, the motorcycle’s turn radius expands during the turn. The motorcycle drifts outside of the lane or into another lane, while turning a corner.  Police and prosecutors will look at this because there is a better than average possibility that the motorcyclist is driving under the influence, quite possibly under the influence of pot or other illegal drugs.

Police and prosecutors consider parking and dismounting a motorcycle a useful field sobriety test for driving under the influence.  First, the motorcyclist must decide upon a safe place to stop the motorcycle. The motorcyclist must stop the engine.  Then the motorcyclist must find and deploy the kick-stand. The motorcyclist must then distribute his weight onto one foot while swinging the other foot over the seat in order to get off the motorcycle. Police and prosecutors may consider problems with this sequence as evidence of driving under the influence of pot, marijuana, or other illegal drugs.  

Police and prosecutors will also consider trouble with balance when evaluating whether someone is driving under the influence of marijuana or other illegal drugs.  Commonly a motorcyclist will place one foot on the ground to maintain an upright motorcycle, while leaving the other foot covering the brake pedal.  However, some riders stabilize by placing both feet on the ground. Riders whose balance has been impaired by marijuana, pot or other drugs may find balance difficult. To compensate for the marijuana, pot, or other drugs in their blood system, an impaired motorcyclist may shift their weight from one foot to another, to maintain balance.   

Police and prosecutors will also evaluate issues with motorcyclists’ turning to consider whether someone has been driving under the influence of marijuana, pot, or other drugs.  For instance, they may consider whether the driver was unsteady, if the driver was late braking, or if the driver had an improper lean angle during the turn.    Marijuana, pot, or other drugs in their blood system, may make an impaired motorcyclist turn in a way that would arouse suspicions and lead to a drug arrest or drug charge. 

If police have conducted a drug stop, drug arrest, or drug search on suspicion of driving a motorcycle under the influence of marijuana, pot, or other drugs you need a drug lawyer who knows how to challenge the drug charges.  An aggressive drug lawyer will know how to specifically challenge every part of the police and prosecutor’s version of the drug arrest.  An experienced drug lawyer will know what strategy to pursue to influence a judge and jury on your driving under the influence of marijuana or other drug charge.    

Where did the word `marijuana' come from?
The word `marijuana' is a Mexican slang term which became popular in the late 1930's in America, during a series of media and government programs which we now refer to as the `Reefer Madness Movement.' It refers specifically to the medicine part of cannabis, which Mexican soldiers used to smoke.

Today in the U.S., hemp (meaning the roots, stalk, and stems of the cannabis plant) is legal to possess. No one can arrest you for wearing a hemp shirt, or using hemp paper. Marijuana (The flowers, buds, or leaves of the cannabis plant) is not legal to possess, and there are stiff fines and possible jail terms for having any marijuana in your possession. The seeds are legal to possess and eat, but only if they are sterilized (will not grow to maturity.)

 Since it is not possible to grow the hemp plant without being in possession of marijuana, the United States does not produce any industrial hemp products, and must import them or, more often, substitute others. (There is a way to grow hemp legally, but it involves filing an application with the Drug Enforcement Administration and the DEA very rarely ever gives its permission.) This does not seem to have stopped people from producing and using marijuana, though. In many of the United States, marijuana is the number one cash crop, mostly because it fetches a very high price on the black market.

What are the statistics for marijuana in America?
The federal government has estimated that nearly eighty million Americans said they have smoked marijuana. Of these, twenty million Americans smoked marijuana during the past year.

More than 700,000 Americans were arrested on marijuana charges last year.  In the last decade, more than 5 million Americans were arrested for marijuana offenses.  Almost 90 percent of these arrests are for simple marijuana possession, not marijuana trafficking or sale of marijuana.

According to NORML, for approximately every 100 Americans who have tried marijuana, there is only one regular user of cocaine or heroin. 

What is the effect of Gonzalez v. Raich—the recent Supreme Court ruling allowing the United States Department of Justice and the Drug Enforcement Agency to prosecute medical marijuana users—on state laws allowing medical marijuana?
Currenlty, twelve states have laws allowing medical marijuana. Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.  In a 6 to 3 vote, the Supreme Court decided that Justice Department has the authority to arrest and charge state authorized medical marijuana patients for violating the federal Controlled Substances Act. The case has the citation Gonzalez v. Raich 545 U.S. 1 (2005).

It is important to note that Gonzalez v. Raich does not give the federal law enforcement agencies more power to arrest or charge.  Gonzalez v. Raich only strengthened the federal prosecutors’ argument that they can conduct marijuana arrests and press federal marijuana charges despite state marijuana laws, county marijuana laws, or city marijuana laws. 

Experienced drug attorneys do not think that federal agents will increase drug arrests or drug charges against state authorized marijuana possessors, marijuana sellers, or marijuana manufacturers.  Likewise, knowledgeable drug defense lawyers do not think that state and local police, who must enforce state marijuana law and local marijuana law, will disrespect the medical marijuana laws that were voted into law.

However, it is clear that there is a tension between state marijuana law and city marijuana law on one hand and federal marijuana law on the other.  An informed drug lawyer will know the difference and how to aggressively exploit the difference on behalf of his client who was subjected to a drug stop, drug arrest, or drug charge.      

Are there more minority drug users or white drug users?
Pot or other illegal drug possession and pot or other illegal drug selling occurs among minorities and whites in the United States.  Some statistics have shown five times as many whites use pot and illegal drugs as minorities in the United States. However the war on drugs has, since its inception, seemed to target those who are Black, Latino or people of color.

A competent drug lawyer will know about racial profiling to help you fight your drug arrest or drug prosecution. You should ensure that your marijuana defense attorney knows your situation and knows how to aggressively argue racial profiling to the judge and jury if it is applicable.