A Few Misconceptions Reconceptualated

This is day four of my return to blogging. I didn’t exactly make a New Year’s Resolution that I was going to start blogging again; it really is something of a coinkydink that I started blogging again on December 31 with the intent to return to doing it daily. ‘Round about July 1, my law practice underwent a significant change that would have theoretically allowed me a lot more time for writing, but then a number of factors prevented it. For one thing, the last couple, or three, months of 2015 were not good for me health-wise. In fact, in December I had what should have been a relatively simple surgery that pretty much completely waylaid me for the entire month. Other attorneys were gracious enough to cover for me, and I will fully reassume my own caseload beginning tomorrow.

Details are unimportant. Suffice it to say that I intend to come back ready to fight. And I only hope that I’m able to get things back on track quickly.

I mentioned the other day some reasons I’d not been blogging. One of those is, frankly, a difficulty in figuring out exactly what to write about each day. Given that to satisfy my own self about the writing, I get tired of re-hashing what others have already written about. Being an avid reader of a particular blog (okay, dammit, I’ll say it: Scott Greenfield’s Simple Justice! there! now leave me alone!), and with “that author” being on the east coast – thus three hours ahead of me – and not that he writes a lot, but…. Anyway, I often feel like there’s not much left for me to add to anything that seems important for the day. It’s not like Gideon is writing anything anymore, so there’s very little need for me to write any corrective posts. (You’re welcome, Gid.) I checked Popehat. I read Gamso‘s sad post. Tannebaum? He’s been MIA for longer than I can remember. Even his blog’s header image is in hiding. Unless you’re interested in some slightly fermented posts. Something about getting famous writing books. Mark Bennett (probably rightly) thinks I’m an asshole, so we don’t really interact anymore. He still writes good stuff: often short, focused, to the point. Like this. And though I also regularly read Fault Lines, I don’t often find things there I feel inspired to riff off of.

My fault.

This morning, though, after getting out of bed to take an emergency call from a potential client, and having read a few things (again) about problems caused by people not understanding why growing 300 marijuana plants is going to get them arrested on felony charges even if they have a medical marijuana “prescription” (another problem, as there is no such thing), and because of some comments to my post from yesterday, I thought I’d do a kind of mishmash post today. 

1. Medical Marijuana

This first issue is actually one I’ve written about before, but my blog is getting more attention from medical marijuana patients these days than when I originally wrote it, so let me return to the problem of medical doctors giving bad legal advice that I originally addressed in “Dammit, Jim! I’m a Lawyer, Not a Doctor!”

You should read that article because, well, it was written about the laws that will be used to defend and/or prosecute you if you get arrested for doing what medical marijuana patients do – written by a lawyer (me), and not by a doctor untrained in the laws of the State of California, a doctor not authorized to practice law in the State of California.

But the part that I want to hone in on here – again, already mentioned in the article – concerns patients growing 99 plants, or (more frequently) hundreds of plants. As I mentioned, my knowledge of marijuana is pretty much limited to the laws that regulate its use, or abuse, in the State of California. ^[1]By the way, this is a reason not to think I’ll know anything about marijuana laws in Colorado, Oregon, Washington, or anywhere else: I only practice in California. Yield is apparently a complicated issue and, well, dammit, Jim: I’m a lawyer, not a farmer! It’s always been my understanding that a conservative estimate would be a little less than one pound of marijuana per plant. I have heard of people getting as much as two-to-five pounds per plant, but I think that requires a very green thumb. Again, I’m no expert, but I can tell you that if you get arrested, and are forced to defend yourself in court, the cops are going to use the highest number they think they can get away with using.

Unfortunately, lately, most of the people coming to me for help were arrested with anywhere from 250 to 300 plants allegedly being grown. ^[2]I should add here that for this reason, the large number of dismissals I used to get, as mentioned in my other article, has gone down.

Now, there are reasons why a person might grow that many plants, even though it is highly unlikely they could consume all the marijuana from so many plants themselves. ^[3]And if you read the article I linked about my being a lawyer, and not a doctor, you know that the law pretty much allows you to have an amount of marijuana reasonably necessary for your medical needs – yours, not “yours, and your friends,” or “yours, and people to whom you plan to sell marijuana.” Well, I guess now you know it even if you didn’t read that article.

Some people don’t have green thumbs. Plants get diseases just like people do. Different methods of using the medicinal plants will use more plant material than others.

Frequently some of the plants are from a crop near to being ready to harvest, while some are younger, and some might not even be more than one-to-a-few inches tall. ^[4]The smaller the plants, by the way, the more susceptible they are to not being around long enough to harvest. So a larger number of plants in the beginning might make more sense.

Because of municipal codes that make growing marijuana impermissible, and acquiring marijuana difficult, someone might only want to grow one crop to store enough medicine for their own personal use for two-to-three years to reduce their chances of getting caught growing. ^[5]At least one post I read says marijuana can last even longer. Most of what I’ve read gives two years as the shelf life.

And so on.

Generally speaking, unless someone really sucks at growing marijuana, 250 to 300 plants could yield more marijuana than a single individual could use in less than two years. Legally, that’s going to create all kinds of problems for you if you are arrested. And, as far as being arrested, if law enforcement finds you growing that many plants, you will almost certainly be charged with felony possession of marijuana for sale. Some cases seem to indicate that the number of plants can be a factor in deciding whether, or not, marijuana was possessed for sale. ^[6]Many unpublished cases specifically note that police officers testifying as “experts” on marijuana will use the number of plants in formulating their guess opinion as to whether the possession was for sale. Judges, and juries, get to hear these guesses opinions.

Of course, one of the myths of marijuana that law enforcement officers hold is that selling, or giving away, marijuana in California is illegal. It is not always, as evidenced by California state laws allowing for dispensaries, and collective or cooperative growing. Municipal codes may forbid such activities, but violating a municipal code does not ipso facto mean that you have violated a state law. Unfortunately, many judges, prosecutors, and law enforcement officers do not really care about this distinction.

The three things I want you to take away from this part of my post are these:

1. Do not count on your doctor to know what the law is regarding marijuana. Just because he tells you that you can do something, doesn’t mean he is right. Ask a lawyer. ^[7]Yes, this may cost you money. So did your doctor.
2. If you’re going to possess, and especially if you are going to grow, marijuana, then do yourself a favor, forget your conspiracy-theory fears, and get the state-issued Medical Marijuana Card from your County Department of Health.
3. Do NOT grow 300 fucking plants, unless you want to get arrested, and possibly end up with a felony record.

2. Right to Remain Silent

No matter how often I, or anyone else, tell people about this, the message never seems to get through: DO NOT TALK TO LAW ENFORCEMENT OFFICERS! 

There are no ifs, ands, or buts here. As I tell people all the time, the law says that anything you say may be used against you in a court of law. It does not say, “Any bad thing you say….”

You might think that you are helping yourself when you make a statement to officers. Unless you are a criminal defense lawyer, you are probably wrong. ^[8]Even some other types of lawyers, who are not criminal defense lawyers, get it wrong. And I’ve seen criminal defense lawyers, who should know better, talk to the police when they are accused of crimes. But you know what they say about a lawyer who represents himself….

Even if you are telling the truth, and you are innocent, you may be hurting yourself by answering questions. For more on that, read my articles “Help Yourself to a Conviction,” and “Why Innocent People Need Lawyers.” That last article – in case you don’t want to believe a criminal defense lawyer like me – contains statements from a police officer about why you should not talk to police officers.

There are a couple other things to keep in mind about this advice.

The first is that, ironically, and sadly, our United States Supreme Court has decided that in order to have the benefit of your right to remain silent, you have to say something. Cops aren’t supposed to be able to know that you intend to exercise your right to remain silent by remaining silent.

Yes, even the United Supreme Court recognizes that cops are just that stupid. You have to say that you’re exercising your right to remain silent. Out loud. Then shut up. Yes, this might get you arrested, but if there is enough to justify your arrest, talking isn’t going to get you out of it. Talking only makes things worse. Trust me. I’ve been doing this a while.

I’ve also read one case, by the way, that allowed an officer to comment on the fact that someone remained silent, but had not told the police that he was exercising his right to remain silent. That was used to show he was guilty – because he did not want to talk. Until that case, the rule had always been that your refusing to talk could not be used against you in court. Something about constitutional rights – a quaint old concept from our collective past; a concept which no longer exists in this country.

The second thing is that police officers don’t want you to follow this advice. They will try everything – some of which is illegal, much of which is unethical, some of which leads to people making incorrect statements of guilt (false confessions) – to get you to talk. Think about it: their job is to “solve” the crime. This means they want to arrest somebody, and have that person be convicted for the crime. What better way than to be able to tell a judge, or jury, that you said X, Y, or Z, and X, Y, or Z – according to the police, and the prosecutor – shows that you are guilty.

Don’t do their jobs for them.

3. Please Do Not Confuse Your Google Search With My Law Degree

Lastly, let me add this bit of advice. It kind of follows from both of the sections above.

Do not rely on your doctor for legal advice. Sure, count on your doctor to tell you if medical marijuana might help your medical condition. But after that, you might want to spend a few dollars to sit down with someone like me, and find out what you can, and cannot do, if you want to have the best shot at avoiding an arrest, or jail time.

Don’t rely on what someone wrote on the Internet. ^[9]Even this article shouldn’t be completely relied upon. It’s not that I’m giving you bad information here, but as they say, “YMMV – Your Mileage May Vary.” Every situation is different in some way. For that reason, you should not consider this article to be legal advice applicable to your situation. Isn’t your freedom worth a couple hundred bucks or so to sit down with a real criminal defense lawyer, and find out whether or not what you plan to do will cause you to lose thousands more dollars, plus time out of your life, and possibly end up with a felony record for the rest of that life?

When in doubt, about any legal question, call an attorney. I know, attorneys cost money. Most of the time. I’m not suggesting that everyone who calls me is going to get even three minutes of free time. After all, think about it: if only 100 people read this post, and decide to call me for three-minutes of advice, that’s 300 minutes, or five hours. If I give away five hours of my time, that’s five hours that I’m not doing something else. I’m not working on someone’s case. I’m not making money. True, I actually do not like taking your money. As I’ve written before,

I make my living off the misery of others.

I never forget that. It haunts me. It drives me. It contributes to sleepless nights. I never feel up to the task of ameliorating the fact that I get paid because others suffer. [footnote deleted] I am saddened that I have to charge for the work that I do. But I have no choice: the time it takes to do this work precludes earning money otherwise.

To some, this will only validate that I am a money-grubbing lawyer. I’m fine with that. I know that it’s not true, and I have enough of a record by now to back that up. And, if I do not take money from people who use my services, pretty soon, I’m not going to be giving anyone any help whatsoever, because I’m not going to have a law practice.

That’s All, Folks!

Sorry this is longer than even I usually write. But I did break it down into sections. And some of the length is in the footnotes. Hopefully, as the year progresses, I will learn to write shorter articles.

For both our sakes.