Unlawful Possession of Marijuana (UPM) and the ACOD

Thanks to the internet, I have noticed that people calling about UPM cases are pretty well informed about the law in advance of their call to me. Many of these people call simply to confirm what they think they already know. What many people know is that UPM (New York Penal Law Section 221.05) is punishable by a fine of no more than $100.00 for the first offense. What many people do not know is that a conviction for UPM requires a mandatory surcharge of $95.00 in addition to the fine, so a guilty plea for a first offense will cost a couple hundred bucks. My fee for handling a local UPM case starts around $300.00. Very often I can spare my client a trip to court (if certain conditions are met) and almost all of the time I can get the case dismissed. Clearly, hiring a marijuana lawyer is money well spent for a UPM case. Sadly, I see many UPM defendants plead guilty to the charge. They just don't think a lawyer is necessary and unfortunately, most judges do not encourage the defendant to find a lawyer and they accept the guilty plea. Unlike misdemeanor or felony cases, there is no statutory or constitutional right to a public defender for a UPM case (which is very unfortunate due to the seriousness of the collateral consequences of controlled substance convictions).

What many people also know is that many UPM cases are dismissed. It's called an ACOD "Adjournment in Contemplation of Dismissal", (New York Criminal Procedure Law Section 170.56) To avail yourself of the benefit of an ACOD, you generally will need a lawyer. It is not a simple matter of asking for it. And the judge will want to get the prosecutor involved. This is where you really need a lawyer to help you if you are thinking of going at it alone. This is not an outright dismissal. It is a conditional dismissal and the the case will not be dismissed until the conditions are met. The conditional period can last as long as twelve months. Usually, the only condition is that the defendant not get arrested during the conditional period. But sometimes things can go wrong, very wrong. For example, I spoke with someone the other day whose UPM case was resolved by an ACOD a couple of years ago. One of the conditions of the ACOD was that she attend group counseling. This recreational and responsible marijuana smoker soon found herself at weekly meetings with heroin addicts, crack heads, and a counselor who insisted this young lady was a serious drug abuser. Had she found a lawyer, this would not have happened.

If you find yourself charged with UPM in New York, you would be very wise to talk to an attorney. There are many things that can go wrong if you try to handle it yourself and there are many lawyers (like me!) whose fees are very reasonable for a UPM case.

A Client In Jail

Sometimes I question my sanity for becoming a criminal defense lawyer. This week has been one of those times because I have spent most of my time trying to free a client from the county jail. When I have a client in jail, my mind is consumed with concern for the client, and concern for myself that I am doing everything possible to free my client. There will always be hard work involved in any kind of lawyering. However, there is a cavernous divide between the significance of worrying about someone's money, versus someone's liberty.

While the definition of liberty varies, the notion is at its essence what defines me as human being, and an American citizen. Americans posses the fundamental right to not be in jail.That's what freedom means to me. There is a difference between the county jail and prison. People in prison have been convicted in a court of law and hopefully been afforded the full opportunity to stand up to their accusers. Most people in jail merely stand accused. They are supposed to be presumed innocent by the court yet they are treated like convicts. Of course dangerous and violent defendants must be locked up until it can be determined they are not a danger to society. But for the citizen accused of a crime where the only possible victim is themselves, (such as people arrested for drug possession where the drugs are for personal use), the deprivation of liberty is an enormous infringement of civil liberties and human rights.

This most recent case has been especially trying for me because my client, was in my opinion, a political prisoner for the four nights she spent in jail. She is a medicinal marijuana user who stands accused of possessing (not selling) an illegal amount of marijuana for personal use. That is the position of the police, not my opinion only.

The New York State Assembly recently passed a bill that would legalize the possession of marijuana for medicinal use. You can read about it here: http://saratogalawyer.blogspot.com/2008_09_01_archive.html (the very first post of the Saratoga Lawyer Blog!) The amount of marijuana my client stands accused of possessing would be legal if this bill was passed. It's something to think about if you care about liberty.

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.

Criminal Procedure

A big part of my job as a criminal defense attorney is simply making a prosecutor do his or her job. The criminal procedure law is very specific and failure to follow the rules for prosecuting a defendant can result in either a dismissal of a case, or a far better plea bargain offer than what was made initially. I make sure a prosecutor follows the rules. Most prosecutors do their job very well, especially in Saratoga County where I live. But every once in a while, a prosecutor slips up and my client makes out well. Don't worry, I'm not talking about violent criminals here. Most of my clients are white collar.

I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?

Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.

Marijuana Legalization: Where does New York stand?

New York could become the thirteenth state to legalize “medical marijuana”.

In June of 2008, the New York State Assembly passed a bill that would allow a medical patient to use marijuana to treat a serious illness under the supervision of a medical professional. A patient would be required to get a prescription from a doctor and would be allowed to possess a limited supply of marijuana; twelve plants or two and a half ounces. The bill was passed after legislators listened to the testimony of cancer patients, doctors, and scientists who advocate the legalization of medical marijuana as a means to end the pain and suffering of thousands of New Yorkers.

The New York State Senate is also considering a similar bill that would legalize medical marijuana but there is big difference between the Assembly bill and the Senate bill. The Senate bill provides for the creation of a regulatory framework to control the production and disposition of medical marijuana. Apparently some Senators are concerned that the Assembly bill essentially allows patients to obtain marijuana from “drug dealers".

New York is moving forward on this issue but until the Republicans lose their majority in the Senate, it appears that a medical marijuana bill will not make it to the Governor’s desk anytime soon. And even if medical marijuana is legalized in New York, it would still be illegal to possess medical marijuana in New York under Federal law.

James Tedisco and Roy McDonald, who both represent Saratoga County residents in the Assembly both voted against the medical marijuana bill.