Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

I’ve written about “Austin Marijuana” laws before, and perhaps unwisely, I joked that Austin is Weird, but unfortunately, it is constrained by the laws of the great State of Texas and therefore no different when it comes to marijuana laws than anywhere else in the Lone Star State.

Scott Henson called me on it, in a comment:

Two caveats.

1) Austin supposedly will soon implement HB 2391 that allows tickets instead of arrest for pot at an officer's option. And

2) APD frequently now gives paraphernalia tickets instead of arrests for B misdemeanors as a way to reduce jail overcrowding and keep officers on the street. Both those are discretionary, though - the state law is still the same.

I knew that was true, but I what I didn’t know was: Austin really is weird. Austin is apparently the only place in Texas where police are utilizing this new law. From the Dallas Morning News article “Marijuana ticket law only catching on in Austin”:

Texas lawmakers thought they could help ease jail overcrowding when they passed legislation allowing police to write tickets for misdemeanor marijuana possession and a few other nonviolent crimes, instead of hauling suspects to the clink.

But the new law, which went into effect Sept. 1, 2007, is being used only in Travis County. Prosecutors in Dallas, Tarrant and Collin counties never set up a system to process the misdemeanor citations and, they say, they have no plans to do so.

The article I subtitled “Law designed to free jail space not used elsewhere in Texas as prosecutors question propriety,” and it quotes several ‘concerned’ prosecutors:

"I think the Legislature was very sensitive to the fact that there are so many jails that are overcrowded," said Terri Moore, Dallas County's first assistant district attorney. "This was a great idea, but it raises a lot more questions that we are not ready to answer." …

For Greg Davis, Collin County's first assistant district attorney, one of his qualms with the new law is the perception created by ticketing for a drug offense, instead of making an arrest.

"It may... lead some people to believe that drug use is no more serious than double parking," Mr. Davis said. "We don't want to send that message to potential drug users, particularly young people."

Well, the legislature has spoken, and yes it’s true that the new provision is discretionary, but rejecting it out of hand for reasons of… well, political cowardice?

Jail overcrowding is a real problem all across Texas. And the super majority of taxpayers are more than OK with tickets for small amounts of marijuana possession – heck, decriminalizing marijuana or reducing it to a Class C level.

One quick caveat of my own: the law does not make possession of less than two ounces of marijuana a Class C traffic ticket level offense. It is still a Class B misdemeanor, jailable by up to 180 days and up to a $2000 fine. (Not a likely result, but it’s still not ‘just a ticket’.)

In other words, Mr. Davis, the offense itself is still just as serious as it was before the new law. And of course you know that. Don’t you want to save the taxpayers some money?

Update: Of course, Travis County is not the only place in Texas the new discretion to ticket for marijuana is being used. Still, Austin deserves some credit, for being the first ‘big city’ to use it so effectively.

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Texas has no medical exception for possession of marijuana…but California does.

And living in the “California of Texas” – Austin – we have Whole Foods, Central Market, and of course, the “Keep Austin Weird” movement that was even featured on 60 minutes.

So I had to laugh when I read the San Francisco Gate article “Connoisseurs of Cannabis”. Subtitled appropriately “Like fine wine, growing medicinal weed has become so specialized as to inspire tastings and a new vocabulary”:

And if there is a center in the United States for this breed of maven, it is California, particularly the Bay Area.

In a region of wine and food buffs, where there is a constant quest for the best bread, cheese or olive oil, it's no wonder that marijuana, in its semi-legal status, has become a new frontier for expertise.

There are medicinal consumers who covet designer strains and varietals -- such as the one grown and harvested only by women in a remote northern county -- or who want organic products and say they can taste what soil or fertilizer was used and want to know the lineage of what they consume, as well as the expected effects.

Of course, the Federal Government is still spending your tax dollars on literally useless prosecutions.

[Hat Tip: Drug Law Blog]

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District 49 (which includes parts of Austin, Texas) State Representative Elliot Naishtat filed a bill yesterday “relating to the use of medical marijuana”. The bill would add an affirmative defense to possession of marijuana charges: proof of a licensed doctor’s prescription:

SECTION 1.  Section 481.121, Health and Safety Code, is amended by adding Subsections (c) and (d) to read as follows:

(c)  It is an affirmative defense to prosecution under Subsection (a) for the possession of marihuana that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.

Further, it gives civil and criminal protections to doctors who discuss the potential benefits of marijuana with patients:

(d) An agency, including a law enforcement agency, of this state or a political subdivision of this state may not initiate an administrative, civil, or criminal investigation into a physician licensed to practice medicine in this state on the ground that the physician discussed marihuana as a treatment option with a patient of the physician or made a written or oral statement that, in the physician's opinion, the potential benefits of marihuana would likely outweigh the health risks for a particular patient.

Finally it adds similar protections for medical doctors in the Occupations Code.

It will be interesting to see how far along this bill gets…

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From Scientific American today we learn of a study published in the journal Neurology that marijuana helped HIV patients reduce chronic foot pain.

A quick aside here, before commenting on the Drug Czar’s knee-jerk uninformed reaction to this…

HIV-Associated sensory neuropathy is a serious condition affecting almost one third of HIV/AIDS patients. According to Medscape Today, it is characterized by complaints of bizarre burning feelings, lancinating pains, and an increased perception of pain including “pain from stimuli which are not normally painful or noxious”.

I’m neither a doctor nor an HIV or AIDS patient, and frankly I had to look up the meaning of “lancinating”, but I think we can all agree it sounds terrible. This is real suffering, and thank goodness there are scientists pouring their efforts into helping those afflicted.

Now the scientific method demands that to properly study a particular drug’s effect on something, you must take a random sample of people, include a placebo, and measure to see whether there is a statistically significant difference between the drug and the placebo. If there is, you know you’re on to something.

Much of modern medicine is actually based on epidemiology,which studies patterns in populations of people after the fact, and tries to derive causes based on the patients’ histories. That’s all very well, and many times it’s the only available method for studying disease, but in the end, it doesn’t prove causation. It only gives us some good starting points for guesses.

The medical doctors and researchers in the study, however, randomly assigned half of the group to smoke cannabis (at 3.5% THC Content), and half to smoke the same cigarettes with the THC content extracted. Just over half of the cannabis group reported significant pain reduction, as opposed to less than a quarter of the placebo group.

So, can we get the office of the Drug Czar to weigh in on this for us?

David Murray, the White House Office of National Drug Control Policy's chief scientist, said, "Unfortunately, this particular study is not terribly convincing," citing what he saw as methodological problems.

"Unfortunately, it will lead many people into a false hope that street marijuana is somehow going to be the thing I can use that will make me feel better and won't jeopardize my health. Now that is a fraud and a dangerous one," he told Reuters.

So a randomized placebo-controlled experiment is flawed…says the folks who are still trying to sell you on the logical fallacy known as the “Gateway Theory”.

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British pharmaceutical company GW announced it planned to start human trials on a fat-fighting marijuana drug today. From the CNN article “Drugmaker to test fat-fighting marijuana drug”:

"The cannabis plant has 70 different cannabinoids in it, and each has a different affect on the body," GW Managing Director Justin Gover told Reuters.

"Some can stimulate your appetite, and some in the same plant can suppress your appetite. It is amazing both scientifically and commercially," he said in a telephone interview.

Unfortunately, the United States government, of course, refuses to see any medical potential in marijuana whatsoever. Meanwhile, Americans keep getting fatter and fatter…

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Jacob Sullum at Hit and Run wrote about a recent medical marijuana ruling in California:

Although the U.S. Supreme Court has held that the federal government can continue to charge medical marijuana users under the CSA despite California's law, the judge said, that does not mean California's law is invalid. According to the ruling, the removal of state penalties for medical use of marijuana does not constitute a "positive conflict" with federal law.

It is unfortunate that folks misconstrue a state’s “legalization” of medical marijuana, for example, and fail to understand that the Federal Government can still come after them, and even imprison them under federal laws. As a practical matter and in terms of percentages, it may not happen to many medical marijuana patients in California, but the threat is still there, and it’s real.

The comments section to Sullum’s post, however, is definitely worth a read, and for me, a laugh. The commenters are discussing the confusion caused by state and federal conflicting legislation when MikeP says:

You know, someone should propose a Constitutional Amendment to clarify this whole federal/state powers thing once and for all. I recommend something like:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

That sounds a bit clunky, but I don't have time to polish it up right now.

I actually laughed out loud when I read that.  What can I say?  It's legal humor...

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Sanjay Gupta writes an article in Time this week entitled “Why I Would Vote No On Pot”. After stating his thesis that marijuana isn’t very good for you, he goes on:

True, there are health benefits for some patients. Several recent studies, including a new one from the Scripps Research Institute, show that THC, the chemical in marijuana responsible for the high, can help slow the progress of Alzheimer's disease. (In fact, it seems to block the formation of disease-causing plaques better than several mainstream drugs.)

Other studies have shown THC to be a very effective antinausea treatment for people--cancer patients undergoing chemotherapy, for example--for whom conventional medications aren't working. And medical cannabis has shown promise relieving pain in patients with multiple sclerosis and reducing intraocular pressure in glaucoma patients.

Wow. That’s actually quite a list of accomplishments from the medical perspective. Alzeheimer’s, cancer, glaucoma and MS patients could benefit from it, but the good doctor still wants to vote “no” because the Colorado and Nevada initiatives “would legalize marijuana irrespective of any medical condition”.

Drug Policy Reformers, please note: we need to always use the word “decriminalize” instead of “legalize” when talking about the subject. Dr. Gupta has caught a classic case of “missing the point”.

Voting “No on Pot”, as Dr. Gupta calls it, means more tax dollars spent incarcerating casual marijuana users. That’s it, end of story. Neither initiative will force Dr. Gupta or anyone else to use marijuana.

And as far as ignoring the reality of imprisoning doctors and their patients for choosing to prescribe and use marijuana for legitimate medical reasons, perhaps Dr. Gupta needs to read this post about the AMA’s position on medical marijuana. Jailing and imprisoning those truly in medical need goes beyond deliberately ignoring what the decriminalization movement is about: it is simply cruel and capricious.  

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The Las Vegas Review-Journal editorializes on the impropriety of the Drug Czar’s use of taxpayer money to campaign against Nevada’s upcoming marijuana decriminalization initiative.

The hypocrisy of politicians who claim to be against big government and federal intervention on matters of local interest often arises when they support the so called War on Drugs. The Dallas Morning News reprints Ryan Sager’s column which mentions the locally popular medical marijuana movement as an example of this.

Lianne Hart of the Los Angeles Times writes an article about a small Arkansas town’s efforts to decriminalize marijuana.

Kanrei blogs about the Canadian military stumbling upon ten foot marijuana plants in Afghanistan.

And finally, while I suppose I wouldn’t mind being known as Austin’s “Marijuana Lawyer”, this news item prompts me to say I can only take payment in the form of cash, check or credit card.

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Alzheimer’s sufferers appear to benefit from THC, the active ingredient in Marijuana.

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In its never-ending disinformation campaign, the DEA has set up a website called StumbleWeed, a fake magazine to “teach” children the “truth” about marijuana. In the section titled Rx Pot: Prescription for Disaster, they claim to cut through the hype about medical marijuana, and get to the facts:

Even though some groups have endorsed smoking marijuana for medical use, major medical organizations do not agree. This is what they say…The American Medical Association rejected marijuana as medicine.

Apparently, even though they provide the hyperlink to the AMA’s position on medical marijuana, the DEA believes folks won’t read or understand it. Let’s take a look at the first and last sentences from the link itself:

The AMA calls for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease…The AMA believes that effective patient care requires the free and unfettered exchange of information on treatment alternatives and that discussion of these alternatives between physicians and patients should not subject either party to criminal sanctions.

Not exactly undecipherable medical mumbo jumbo.   Just the AMA directly calling for more studies on the medical uses of marijuana, and absolutely stating opposition to its criminalization.

According to the DEA, however, the AMA “rejected marijuana as medicine”. Here’s a free tip for the DEA: disinformation campaigns work better, when you don’t provide direct access to the truth.

(Hat Tip: Drug WarRant)

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§ 481.121. OFFENSE: POSSESSION OF MARIHUANA. (MARIJUANA)

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b) An offense under Subsection (a) is:                                      

            (1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

            (2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

            (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

            (4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

            (5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

            (6) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

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Stan White writes a Letter to the Editor of the Central Kentucky Newsletter decrying a pastor’s previous letter bashing medical marijuana. I’m interested myself in looking into his claim that the kaneh-bosm mentioned in the Old Testament is actually cannabis, but for now, I’ll leave you with this quote:

Biblically, caging humans for using cannabis (kaneh bosm) is a sin and for clergy to support cannabis persecution, prohibition and extermination is very regrettable.

Biblically, morally, ethically and also, just from the standpoint of “Your Tax Dollars At Work”, I have to agree with him.

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