Marijuana

Drug Sniffing Dog’s Alert Alone Not Enough to Search Car in Colorado

Published on: July 20, 2017 | by Monte J. Robbins, Esq.

A recent Colorado Court of Appeals case involving Kilo the drug sniffing dog held that a dog’s alert alone does not establish the Probable Cause necessary to conduct the search of a vehicle occupied by individuals 21 years of age or older.

Under Amendment 64 of the Colorado Constitution, it is legal for people who are 21 years of age or older to possess up to 1 ounce of Marijuana for personal use. This amendment went into effect in 2012.

In the case involving Moffat County’s Kilo the drug sniffing dog, a truck was parked in an alleyway and thereafter pulled in front of a house and parked for 15 minutes. The house that the truck had parked in front of had been searched 7 weeks previously and illegal drugs were found. When the truck drove away, cops pulled it over because the driver allegedly didn’t use his turn signal.

Upon contact, the cops claim to have recognized the passenger in the truck as a user of Meth. The cops subsequently turned Kilo loose on the truck and then received an “alert” indicating that drugs were present. It’s important to note that Kilo is trained to detect Meth, Weed, Ecstasy, Cocaine, and Heroin. Kilo’s alert means that he detected one of the aforementioned substances but it’s unknown which one or what quantity. Thus, the alert is simply a generalized alert.

The cops then ordered the occupants out of the truck and searched it. While searching, the cops found a Meth pipe and charged the driver with possession of the pipe and of a controlled substance.

Previous Colorado cases have held that reasonable suspicion is required prior to a dog sniff search of the exterior of a vehicle. In other words, the police must have specific and articulable facts to support their belief that the person stopped is involved with or may have been involved with criminal activity. In determining whether reasonable suspicion exists, courts will look at the totality of the circumstances, the specific and articulable facts, and the rational inferences from those facts.

The driver of the truck attempted to suppress the evidence found in his truck by arguing that Kilo’s sniff of his truck was not supported by reasonable suspicion and that the search of his truck’s contents was not supported by probable cause.

Kilo’s alert indicated that he had detected either an illegal or legal substance. Since the legalization of Marijuana, a K-9’s alert alone no longer establishes probable cause if the K-9 was trained to detect various drugs including Marijuana.

The result may be different if a K-9 is not trained to detect Marijuana or the occupants of the vehicle are not at least 21 years of age.

Utah Governor Signs Bill to Lower BAC to .05. Will Colorado Follow?

Published on: March 29, 2017 | by Monte J. Robbins, Esq.

Governor Herbert in Utah just signed a bill to lower Utah’s BAC threshold for DUI offenses from .08 to .05. Utah will be the first state to lower their BAC to this level when the law takes effect in 2018. It’s noteworthy that Utah was also the first state to lower their BAC from .10 to .08. Thereafter, the rest of the country followed in their footsteps. It has been illegal to drive with a BAC of .08 or greater in all 50 states since 2002.

In Colorado, there is a permissible inference that someone is under the influence of alcohol if they submit a chemical test of their blood or breath at .08 or more. Similarly there is a permissible inference that a person is driving while ability impaired if they submit a chemical test of their blood or breath at .051 BAC up to .079 BAC. A driver is presumed that they are not under the influence and not impaired if they submit a chemical test of their blood or breath at .05 or less (although sometimes Colorado police officers still charge people with DUI and DWAI even if they submit testing at .05 or less).

Drivers charged with DUI or DWAI after submitting chemical testing reflecting a BAC of .05 or less have the “power of the statute” behind them. However, often times a DUI defense lawyer must “politely remind” a district attorney prosecuting this type of case as to what the statute reads CRS 42-4-1301.

Also in Colorado, if a person submits a chemical test of his blood yielding a result of 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter of whole blood there is a permissible inference that the person is under the influence of THC- Marijuana.

Thus, people may wonder if Colorado will follow along with Utah and lower their BAC threshold from .08 to .05.

According to an article by Amy Joi O’Donoghue of Desert News Utah, the Utah governor “pointed out that 85 percent of the world’s population currently lives in countries with laws that have .05 percent blood-alcohol limits or less, including France and Italy”.

Some countries even have stricter BAC limits. China and Colombia for instance have a BAC limit of .02. Whereas India, Japan, and Taiwan have a BAC limit of .03.

Only time will tell how Utah’s direction with this new BAC legislation will impact other states who may wish to follow in their footsteps.

Marijuana and Probation in Colorado

Published on: April 12, 2016 | by Monte J. Robbins, Esq.

Colorado statute 18-1.3-204 provides that medical Marijuana users shall not be prohibited from possessing or using medical Marijuana while on probation. It appears that this is welcome news for medical Marijuana users. However, a closer look at the statute reflects two major exceptions to this groundbreaking law. One of the exceptions provides enormous discretion to the Court to rule against a probationer’s use of medical Marijuana on probation.

The first exception to the law that permits medical Marijuana use on probation applies to those who are sentenced to probation for a conviction under article 43.3 of title 12, also known as the Medical Marijuana Code.

The second exception to the law that permits medical Marijuana use on probation applies to probationers when the Court determines that based on the assessment in Colorado statute 18-1.3-209 a prohibition against the possession or use of marijuana is “necessary and appropriate to accomplish the goals of sentencing” as stated in Colorado statue 18-1-102.5. This exception grants wide latitude to the Court (and the probation department through their assessment) in determining who ultimately can and cannot use Marijuana on probation.

The assessment referenced above (18-1.3.209) is a substance abuse assessment. Persons convicted of a petty offense or misdemeanor on or after July 1, 2008 or a felony on or after July 1, 1992 that are sentenced to supervised probation (or a deferred judgment) are required to complete a substance abuse evaluation for alcohol or drugs.

The Court shall order probationers to comply with the recommendations outlined in the alcohol and drug assessment. If the person is sentenced to supervised probation (or a deferred judgment and sentence), or any other sentence (except straight jail time without probation), the probationer shall be required to comply with the treatment plan as a condition of the sentence. The probationer is required to pay for the evaluation and treatment recommended unless he or she is indigent.

The goals of sentencing as referenced above include those as outlined in Colorado statute 18-1-102.5. The first goal of sentencing is to punish the defendant for his/her offense based upon the seriousness of the offense. Fair and consistent treatment of all offenders is to be considered with the goal of eliminating unjustified disparity in sentences. Fair warning of the nature of the sentence to be imposed and fair procedures for the imposition of the sentence are also to be considered.

Further goals of sentencing in light of Colorado statute 18-1-102.5 also include deterrence and rehabilitation of offenders through cooperation and participation in correctional programs. The Court should also consider a sentence, sentence length, and level of supervision in light of the person’s individual characteristics that will reduce the probability that the person will re-offend.

Promotion of acceptance of responsibility and accountability, restoration and healing of victims and the community, and reducing recidivism and costs to society through restorative justice practices are also factors for the Court to consider.

Thus, the bottom line of this fairly new legislation that permits medical Marijuana use on probation appears to be that medical Marijuana patients may be permitted continued use, but only if the Court and probation agree and the probationer is not sentenced for committing an offense defined under the Medical Marijuana Code.

Feds won’t challenge Colorado Marijuana laws.

Published on: September 4, 2013 | by Monte J. Robbins, Esq.

CNN reports that the Federal Government won’t challenge Colorado’s marijuana legalization laws and will instead focus on serious traffic cases and preventing children from being exposed to the drug.

Marijuana is still illegal under federal law. It’s listed under the Federal Controlled Substances Act as a Schedule 1 drug. CBS News reports that Schedule 1 drugs are substances with a high potential for abuse and with no accepted medical use.

The Justice Department began relaxing its position on personal marijuana use in 2009. In that year, the Ogden memo was released by the Justice Department and basically indicated that prosecuting marijuana users was not their priority. This memo was clarified in 2011 with the caveat that the memo was just intended for marijuana users “not commercial operations for cultivating, selling, or distributing marijuana.”

However, under this new directive, federal prosecutors will have tightened prosecution standards. There are eight (8) enforcement priorities for federal prosecutors in reference to marijuana: 1) growing marijuana on public lands; 2) using or possessing marijuana on federal lands; 3) distributing marijuana to minors; 4) using legal sales to cover up trafficking operations; 5) using violence and or firearms in marijuana cultivation and distribution; 6) DUID driving under the influence of marijuana; 7) diverting marijuana from states where it is legal to those where it is not; 8) directing marijuana revenue to gangs and cartels.

This new directive is substantial progress for advocates of legal marijuana use not only in Colorado but also nationwide. Twenty (20) states and the District of Columbia permit medical marijuana use. Washington and Colorado are currently the only states who permit recreational marijuana use.

The new directive doesn’t alter federal money laundering rules. This still presents a problem for Colorado marijuana industry businesses. Many banks won’t do business with marijuana businesses in Colorado for fear of violating federal laws. Evan Perez of CNN writes that “Justice Department officials said there is some leeway for banks to provide services to such businesses, so long as they don’t violate the eight priorities being assigned to federal prosecutors”.

Many advocates of legal marijuana see the new directive as great progress for the industry, however some are still concerned and cite that the Obama administration has shut down more state-legal marijuana businesses in one term than the Bush administration did in two terms. According to an article by Nick Wing and Luke Johnson of the Huffington Post, the Obama Administration has spent nearly $300 million cracking down on medical marijuana.

Michael Roberts of Denver Westword quotes Governor Hickenlooper as reacting to the directive:

“We recognize how difficult this issue has been for the Department of Justice and we appreciate the thoughful approach it has taken. Amendment 64 put Colorado in conflict with federal law. Today’s announcement shows the federal government is respecting the will of Colorado voters.”

Only time will tell how individual Colorado’s U.S. Attorneys will interpret the new guidelines.
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