Thursday, December 18, 2014

Nebraska, Oklahoma Sue Colorado Over Marijuana Legalization

Nebraska Attorney General Jon Bruning announced that his state will be filing a lawsuit in the U.S. Supreme Court asking that Colorado's recreational marijuana possession/use law be declared unconstitutional in that it violates the Supremacy Clause of the U.S. Constitution.  The Oklahoma AG Scott Pruitt has announced that his state will join in the lawsuit.  The U.S. Constitution provides that state/local laws cannot conflict with federal laws; federal law must reign supreme in instances where state/local laws contradict or conflict.  Colorado voters approved a state constitutional amendment in 2012 that permits individuals over 21 to possess a small amount of marijuana for personal use in private.  However, marijuana in any quantity remains illegal under federal law despite the declared reluctance of the current Justice Department to enforce federal standards in Colorado and Washington, which is the other state that has legalized limited marijuana possession/use.

The lawsuit is brought in the U.S. Supreme Court because, under the Constitution, that court has original jurisdiction in matters between two or more states.  Additional information may be found at

Despite its legalization in Colorado, many entities do not permit marijuana possession/use, citing its illegality under federal law.

The contradictions illustrated by this case once again demonstrate why experienced legal counsel is vital when confronted by the implications of the legal system.

SCOTUS Imposes New Double-Standard for Ignorance of the Law

This week, the U.S. Supreme Court issued its opinion in Heien v. NC, in which the Court held that evidence obtained as the result of a traffic stop predicated upon an officer's mistaken belief that a traffic law had been violated will not be suppressed under the century-old Exclusionary Rule.  In this particular case, an officer stopped a car that was later found to be transporting drugs based on his belief that the suspects' car had a defective brake light.  A subsequent search of the car revealed illegal drugs, but the defendant moved to suppress the search results because the car in fact was not in violation of the North Carolina vehicle code, i.e. the officer's belief that the brake light problem was illegal was in fact erroneous (NC law requires only one working brake light; defendant's car had one working light and one that was out).  The trial court and appellate court agreed, but the North Carolina Supreme Court reversed, ruling that the officer's mistake of law was made in good faith and therefore fell under the "good faith exception" to the Exclusionary Rule, the 1914 Supreme Court ruling that evidence obtained as the result of a Constitutional violation must be excluded at trial.  The U.S. Supreme Court upheld the ruling of the NC Supreme Court, holding that the officer's belief that only one operational brake light was a traffic violation to be reasonable despite later court rulings to the contrary.

The SCOTUS ruling in Heien is disturbing in that it appears to establish a double-standard under the law regarding required knowledge of established law.  We are all familiar with the time-honored legal axiom "Ignorance of the law is no excuse!", meaning of course that a person can be held criminally liable for his actions even if he was not aware of the illegality of those actions.  We are all presumed to know the law, whether we actually do or not.  However, the holding in Heien seems to give police officers a pass when it comes to knowing the laws they are presumably enforcing...with them, it now seems that ignorance of the law IS an excuse!  The "good faith" exception was instituted by the Supreme Court thirty years ago, and during that time courts have held that officers who act on prevailing law that is subsequently changed or overruled are covered by this exception.  However, the good faith exception has never heretofore been held to apply to long-standing applicable law that remains unchanged as was the situation in Heien.  Analysis of the Court's ruling appears to reveal that the Court really didn't consider the public perspective that his holding creates a double-standard, but rather seemed chiefly concerned with preventing clearly-guilty drug runners from beating the rap on a legal technicality.  It is the considered opinion of this blogger that the Constitution is NOT a legal loophole or technicality, but that giving law enforcement officers the means to make tenuous excuses to justify an illegal stop IS.

As always, cases like this reflect why it is important to know your rights and to have benefit of experienced legal counsel when confronted with any criminal charge, no matter how "minor" it may be.

Monday, December 15, 2014

NHTSA: No Evidence to Support Low Per Se Cannabis DUI Levels

The National Highway Traffic Safety Administration has issued a report that states that low cannabis/THC levels constituting "per se" DUI such as the one set in Colorado are NOT supported by sound scientific evidence.  When the current Colorado THC per se level of 5 ng was set following the legalization of recreation marijuana use two years ago, the General Assembly was provided with so-called scientific and medical testimony/evidence stating that most adults were significantly impaired at the 5 ng level.  The federal agency that oversees highway safety in the United States has found that such claims are NOT supported by sound science.  A story on this report may be found at

It has been well-known for many years that THC, the "active" chemical in marijuana, affects individuals variously without any real, identifiable consistency in its effects.  This NHTSA report essentially re-affirms that collective knowledge.  No drug or substance affects all people in the manner or to the same degree.  This is why it is essential to obtain experienced legal counsel whenever charged with an impaired driving offense.