Parenting Stoned: Family and Juvenile Courts in Arizona

MedicalMJ

Arizona enacted the Medical Marijuana Act (Prop. 203) in 2010, which is regulated by the Arizona Department of Health Services.  Essentially, with a doctor’s assent, marijuana is considered medicinal and the possession of the same, for that purpose, is not illegal under state law.

Despite the passage of the Act years ago, there are still problems with the legalization of marijuana in the courts. In family court, the legalization of medical marijuana can impact parenting issues.

For example:

  1. You share legal decision-making (FKA: custody) and parenting time with your ex-husband.  You find out that he has obtained his medical marijuana card when he tells you that it is the only thing that helps him with his chronic back pain. How does the knowledge that your ex-husband may use marijuana during his parenting time affect your legal position?

 

  1. You get your medical marijuana card for a long-term diagnosis. Your ex-husband requests a court order preventing you from driving with your children in the car because he is concerned that your medicinal marijuana creates a risk of impairment.  What can you do?

 

  1. You were recently involved in a car accident with your child in the back seat. You informed the responding officer that you have a medical marijuana card and he believes that you were impaired while driving.  He calls the Department of Child Safety (DCS) to take temporary custody of your child, and the agency believes the child is not safe in your care.  How long can your child be kept away from you, and what can you do to prove that you parent safely?

 

Family Court and the Impact of Medical Marijuana

There are few studies detailing that social marijuana use is dangerous or harmful.  If it would bother you that a parent would have a beer or glass of wine with dinner while responsible for children, then smoking pot will probably be unacceptable to you as well.  Although some judges and commissioners have begun to accept medical marijuana use as part of some parents’ lives, others may have reservations and it could affect your parenting time.

Plus, although medical marijuana is legal at the state level in Arizona, federal law still prohibits its possession or use.  This can prevent some licensing agencies from allowing you to continue working in your field.  Change in employment status is one of the most common reasons that separated or divorced parents return to family court in Arizona in order to modify parenting time and child support orders.

The important thing to remember is that, notwithstanding the fact that Arizona legalized medical marijuana a half-decade ago, the legal use of marijuana is still a difficult issue in family court.  Although the social stigma of marijuana use has dramatically decreased in the past few years (and also in smaller courts like the Scottsdale City Court or Phoenix Municipal Court), the Family Court division of the Maricopa County Superior Court may still view your marijuana use disfavorably.

DCS, Dependencies, and Medical Marijuana

DCS is often even less amenable to medical marijuana use.  If the Department believes that your marijuana-assisted treatment for your medical condition places your children at risk, they may remove your children from your care and file a dependency action in the Juvenile Division of the Maricopa County Superior Court.  Most substance-related dependencies involve drug testing and counseling to ensure that you are willing and able to parent safely; however, your diagnosis and prescribed treatment of marijuana may conflict with the Department’s goal of forcing you to prove yourself substance-free.  Even if you and your doctor work out a different method to treat your condition, it could take weeks or months before your TASC screenings clear up.  In the interim, the Department will continue requesting restrictions and monitoring during your parenting time and play a significant role in your children’s lives.

Moreover, the TASC screening results are not as simple to interpret as the “positive-or-negative” dichotomy suggests.   Many Department workers are not well-versed in reading the TASC results and will expect the results to return to “negatives” within a week or two of your last use.  With more concentrated forms or higher dosages of marijuana, THC metabolites – the substances for which the urine, blood, and hair tests screen – can remain in your system for weeks or even months after your last use. In some cases, your screening results may vacillate between “negative” and “positive” over a course of weeks, even without new use, based on your body composition, diet, exercise, and various other factors.  Even comparing one test to another, even if the tests were only a day or two apart, can provide dramatically different and apparently contradictory results unless the screenings are mathematically “normalized” for your hydration level the day of each test.

DCS rarely consults with laboratory managers or physicians before seeking Juvenile Court involvement, but they will sometimes respond to the data if it is presented early – and convincingly.  For a parent, even a few days away from a child (or with visitation under Department supervision, only) can be excruciating.  The period of weeks or months while you, the Department, your doctor, and the Courts resolve a medical marijuana-related dependency matter can be one of the most difficult and frightening times in your life.

 

Arizona DUI Laws and Medical Marijuana

In Washington, marijuana is legal for both medical and recreational uses.  As a result of its voters legalizing the substance, the state is now undertaking the task of adopting new standards for regulating marijuana.  Washington decided to propose a standard more closely in line with that in force for other substances, such as alcohol.

Driving (Woodnick)One such regulation, Initiative 502, made national headlines in late 2012 because it sets an objective impairment standard: tetrahydrocannabinol (THC) content of greater than 5 nanograms per milliliter in a driver’s blood triggers Washington’s anti-DUI laws, with or without a medical use card.  I-502 has been the subject of controversy since its adoption because of the alleged dubiousness of the 5 nanogram threshold.  Although difficult, establishing a uniform objective standard for impairment should be a high priority for many states as drugs which significantly alter their user’s mental state become more widely accepted and legalized.

In contrast, Arizona, which approved medical marijuana in 2010, does not enforce a blood-content limitation in its DUI laws.  The Arizona standard, codified at A.R.S. § 28-1381, only specifically lists blood alcohol content as a factor in determining whether a driver was impaired by alcohol while driving.  Marijuana falls into the category of “any drug” and driving while impaired “to the slightest degree” is enough to violate the statute.  This is a more hardline approach and, although it appears to be objective, actually relies on law enforcement’s subjective analysis of the driver, at least at initial contact.

Police officers are trained to identify impairment using standardized tests, but the well-established .08 blood alcohol concentration (BAC) limitation for non-commercial driving is the most irrefutable (and usually error-free) form of evidence that the state uses to prove DUI violations.  A driver who is arrested and whose BAC is at or above .08 grams per 100 milliliters of blood is presumed guilty of driving under the influence as long as the blood test was performed in accordance with legal guidelines.  A driver could still be convicted of a DUI without a .08 BAC, however, with a strong enough showing of evidence of impairment.

Old Police Car (Woodnick)For medical marijuana users, no such presumption exists because Arizona has not adopted a fixed standard for acceptable concentrations of active THC in the blood.  Even if a standard were to be adopted, similar to the one in Washington, it remains unclear how much marijuana is enough to reach 5 nanograms per milliliter or how long the impairment will last, to say nothing of the wisdom of the 5-nanogram cutoff, itself.

As with anyone who imbibes a reasonable amount of alcohol and wishes to drive, medical marijuana users should be careful and plan ahead.  If you need to be somewhere soon after using medical marijuana, and even though you don’t feel you’re too impaired to drive, remember that in Arizona that determination is made by the arresting officer.  Even if you are capable of operating your vehicle safely, a minor traffic infraction – a faulty headlight or failing to signal a lane change, for example – could result in a DUI arrest.

Just as hard liquor contains more alcohol than beer, some strains of medical marijuana are more potent than others.  Even using the same marijuana on different days could result in different levels of impairment based on countless variables.  Your medical marijuana card will protect you from the per se violation of having metabolites in your bloodstream, but it will not protect you from DUI if you are pulled over and subsequently arrested.

Drug-sniffing Dogs

Anyone who has ever watched an episode of Cops has probably seen a police dog at work.  A suspected criminal is hiding somewhere in a neighborhood in an attempt to evade arrest, so a police dog is brought to the scene and released.  An officer with a flashlight begins chasing the dog as the cameraman struggles to keep up and, within a few minutes, the suspect is lying on the ground with a four-legged assailant barking and menacingly baring its teeth toward him.

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Although police dogs are used in pursuit of suspects, they are also employed in a more subtle manner: detecting drugs by scent.  Drug-sniffing dogs are used in many contexts, from public places like airports to vehicles and even at private residences.  In most scenarios, all a police officer needs in order to perform a legal search of private belongings or property is an alert from a trained drug dog.

In Arizona, police officers often use narcotics dogs to supplement their work – dogs can be seen sweeping baggage at Sky Harbor, in parking garages in Phoenix, Tempe, and Scottsdale, and even at private residences and neighborhoods in Mesa, Chandler, and elsewhere.  Phoenix-area attorneys present and refute evidence obtained after a narcotics dog’s alert in a wide variety of different types of cases.

Unfortunately, not all drug sniffers are equal, so the reliability of any particular dog may be unknown at the time of the search.  Dogs are re-trained and re-certified on a semi-regular basis, but there is some debate about whether the dogs are always alerting to drugs or are just responding to subtle cues from their handlers.

Once the dog alerts to a car door handle or a piece of luggage, officers may begin to search and discover circumstantial, non-drug evidence – cash, a firearm, and so on – which may be admissible in court regardless of whether the dog could have detected it.

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Further complicating matters is the fact that the U.S. Supreme Court will decide two cases challenging the legality of the use of drug-sniffing dogs in the current term.  One case, Florida v. Harris, questions whether a narcotics dog’s alert to a vehicle is sufficient to establish probable cause for a search under the Fourth Amendment.  The second case, Florida v. Jardines, centers around whether police can guide a drug-sniffing dog to the front door of a private residence in an attempt to establish probable cause for an interior search.

Precedent suggests that the Supreme Court will be more willing to protect the privacy of individuals in their homes than in their vehicles, but there is always an element of unpredictability in search and seizure cases.

No matter the results in Florida v. Harris and Florida v. Jardines, police will continue to employ drug-sniffing dogs as one of many tools used to circumvent the need for a search warrant.  Any criminal conviction, whether drug-related or otherwise, can have a lasting negative impact on your life.

What to Wear in Court

A court summons, whether for reasons as mundane as jury duty or as tense as an arraignment hearing, raises many questions.  One common concern for anyone going to court is, simply put: “What should I wear?”  The answer to that question not always as simple as it should be, but here are some guidelines which may help:

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Dress in a way which shows respect for the court.  One of the worst mistakes that you can make is to appear as if you do not take the proceedings seriously.  Never walk into a courtroom wearing the same outfit that you wore to the Cardinals game in Glendale.  “Business casual” dress is the minimum standard which is appropriate for any court hearing, and the specific circumstances of your case may require more.  Remember: judges and jurors are people – no matter how seriously they feel about neutrality and deciding cases on the merits of the arguments, the message that you convey to them with your appearance affects their decisions.

Avoid wearing shocking colors and gaudy accessories.  This is one lesson that Lindsay Lohan still has not learned, and it should not be a mistake that you and the embattled Hollywood star share in common.  Wearing flashy jewelry, exotic materials, and bold colors is, at best, distracting.  At worst, they may annoy conservative judges and alienate jurors.  Cases should be decided based on the facts and arguments, and it becomes much harder for fact-finders to focus on those things if the defendant is wearing diamond-encrusted gold chains and a bright yellow blazer.

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Consider covering up tattoos and other body modifications.  The Arizona Supreme Court recently declared that tattoos are a protected form of speech under the First Amendment.  Unfortunately, that sentiment is still lost on many individuals – individuals who may be involved in deciding your case.  Although tattoos or exotic piercings cannot be the official basis for decisions (except in extremely rare circumstances), they may be distracting or objectionable to judges or jurors.  If a juror wastes even a few moments wondering whether it hurt when you had your labret pierced, they may not hear an important admonishment offered by your attorney.  Perhaps this paragraph will become superfluous in a few years but, in the interim, do not let your body art get in the way of justice.

Ultimately, court dress decisions are yours (and your attorney’s) to make, but to ignore the potential impact of those decisions on the outcome of your case is a significant risk.  A well-prepared attorney will consider everything that goes into your case, including the effects of your attire.  Rather than simply picking a pair of slacks, a shirt, and a tie, then hurrying off to court, ask your attorney whether their strategy includes a particular style of dress.

Jury Nullification in Arizona Marijuana Cases

Many of you may know William Penn as the man on the Quaker Oats packaging. Some of you may also know him as the founder of the State of Pennsylvania. What you may not know is that in 1670, William Penn was put on trial in London for soapboxing his Quaker principles. Why do we care about a case that happened 300 years ago in England? Well what if I told you that because of that case, a jury can now say, “forget the law” and make their own decisions on your innocence. Yes, even if two officers in Scottsdale, Arizona caught you with a joint, a jury of your peers could still find you ‘not guilty’ of drug possession.

How is that possible you ask? The answer is jury nullification. Jury nullification allows the jury to acquit the defendant even when the government has proven its case beyond a reasonable doubt.

It is not a surprise that prosecutors do not want you to know that you have this right. Some Arizona courts have even gone as far as to downplay the power of this right by saying, “while jury nullification is a fact of our jurisprudential process, anarchy would result from instructing the jury that it may ignore the requirements of the law.” The reality is that our legal system has jury nullification written in plain language for all to see, but the common juror does not even know about it, and the government isn’t losing sleep over that.

In a recent article in The New York Times, George Washington University law professor Paul Butler advocates the importance of jury nullification. “If you are ever on a jury in a marijuana case, I recommend that you vote ‘not guilty’—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.”

It is no secret that throughout the court system, especially in Arizona, marijuana cases are clogging up the docket and creating unnecessary burdens on those involved in the case.

In Arizona, first time possession of marijuana cases are offered TASC/Diversion. This gives the possessor the opportunity to avoid a felony conviction if they participate in drug treatment. Obviously there is a debate over whether casual marijuana use warrants any therapeutic intervention. For those ineligible for TASC or who do not want to participate in drug testing, a jury trial is your option. The jury has a right to simply nullify the conviction.

There have also been many cases that have used the nullification power to set otherwise guilty defendant’s free. These verdicts are more commonly known as “conscience verdicts.” Hanson v. United States, 156 U.S. 51, 102 (1895). The argument that has been made in support of jury nullification being explained to the jury before they deliberate follows this logic; a jury of your peers are meant to take the law and apply it to the facts, but the jury alone makes the decision about what facts and what law matter in your case, therefore, the jury, and only the jury, should have the right to make the determination, regardless of the facts and the law, about your innocence. Makes sense right? Well the founders of our country thought so too, that’s why jury nullification is written into our law.

So the next time you are in the breakfast isle at your local market, make sure you take a moment to tip your hat to William Penn, not only for delicious cheese steaks, but also for highlighting the power of a jury to send the message to the state that some laws do not warrant convictions.

If you are interested in viewing the full New York Times article “Jurors Can Say No” please follow the link here:

http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=1&src=tp&smid=fb-share

Marie J. Cacciatore is a second year law student at Phoenix School of Law and clerk for Gregg R. Woodnick PLLC.

One Joint Burns Three Friends

Al, Butch, and Charlie have been buddies since their days at Arizona State University.  At one time they had many things in common.  Intramural sports, Sorority girls, video games, and, of course, partying.  Nowadays, with their careers in full-swing, the three old friends barely get to hangout.  They do get back together now and again.  And they do still have one thing in common: partying – specifically, smoking Marijuana. 

On a recent night out, the three friends decided to head to the Tempe Improv.  Butch picked up Al and Charlie and headed for Tempe.  Since Butch was driving, Al said he would bring a few joints and in return Charlie would buy the first round of drinks at the club.  While driving, the guys lit a joint and talked of their days on campus. 

Upon arrival at The Improv, the joint was still burning, so the three decided to finish it before exiting the car.  Unfortunately, a Tempe Police Officer saw the guys smoking and passing the joint in the parking lot.  Next thing the guys knew, they were all in handcuffs and Charlie had not even bought a drink.

Other than the small roach, the two other joints were in the center console, and not in anyone’s pocket.  Yet, all three friends were charged with possession of marijuana – a class 6 felony according to the Arizona Revised Statutes 13-3405.  This is where the story gets interesting and the friends’ stories diverge.

Al runs a small information technology business in Tempe and is self-employed.  He does not have to worry about the arrest and criminal charges effecting his employment.  However, Al is currently going through a nasty divorce.  Al’s wife has alleged Al smokes Marijuana and therefore, at least according to her divorce pleadings, should not have “unsupervised parenting time” until he can prove he is drug free.  Once his wife, or his wife’s attorney, catches wind of this arrest, Al’s road to easy parenting time and joint custody just got more challenging.

Butch is a long-haul truck driver.  He has been since he failed out of architecture school and needed to pay rent.  Butch’s employer doesn’t perform routine drug tests, but it does regularly perform background checks.  And even though this is Butch’s first possession of Marijuana and it may be dismissed after he completes the TASC program, Butch will have a hard time randomly drug testing at TASC when he is out of state for work. 

Butch will also have to deal with the DUI charge for Marijuana; also known as an “A3 DUI.”  This will have a great impact on his profession since he drives for a living.  Butch faces a license suspension and an ignition interlock device (A.R.S. 28-1381 and 28-3319), along with jail time and expensive fines.    

Finally, Charlie works at a small business as an accountant and has been studying to take his CPA exam.  Luckily for Charlie, his employer does not perform background or drug tests.  (Charlie has already been arrested for possession of Marijuana three times; once in college, once while skiing in Flagstaff and once at the ASU/UofA Football game in Tucson.)  Charlie has never been sentenced to any time in jail or prison because of these previous arrests, but his luck may have run out.  TASC is not an option, pleading to a misdemeanor is not an option, and the state of Arizona is most likely going to seek incarceration due to Charlie’s history. 

While the law is not supposed to discriminate, it is easy to see how a relatively small legal infraction will have drastically different outcomes for these three friends.

Help! I Got Arrested In Wellton, Arizona!

Where is Wellton? An old client called my paralegal the other day in hysterics. “I got arrested in Wellton for pot possession.”  You may be asking…“Where the hell is Wellton, Arizona?”

Having had many clients arrested in Wellton, I can tell you that it is more than just a great place to top off your gas tank outside of Yuma; it is also a popular place to get arrested for drug possession. The Interstate 8 Checkpoint is designed to catch major drug traffickers and for immigration purposes.  I-8 is a major artery for human and drug smuggling.  It has also recently become a hotspot where my clients (ranging from doctors to ASU students) are being arrested for possession of Marijuana (POM).  With unreliably well-trained sniffing dogs inspecting freight trucks, they also hone in on the casual pot smoker who may have left a joint in their pocket or car from their fun-filled weekend in San Diego.

My client is now facing charges in Yuma County.  Fortunately, we have a good working relationship with the Yuma County Prosecutor’s office.  She is also lucky because the quantity of marijuana found was only a few ounces.  We will work hard to help her avoid a felony conviction and repercussions to her professional license. Yes, I’ve been to Wellton. Nice people, nice town…but not a place where anyone should want to spend jail time.

Remember, if you are arrested in a small town like Wellton, just like in a major city like Phoenix or Tempe, you have an absolute right to an attorney and to remain silent.  Politely inform the officer that you would like to speak to your attorney before answering any questions… and call your lawyer.