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Wenatchee v. Legalized Marijuana

Posted Thursday, June 5, 2014 by Andrew Charles Huff

A lawsuit against the city of Wenatchee could have sweeping implications for marijuana’s future in Washington and other states.The lawsuit was recently filed in Chelan County Superior Court by an individual seeking a state license for a retail marijuana store in Wenatchee. However, Wenatchee officials won’t let him open a store because of the city’s policy requiring entrepreneurs to comply with federal law to get a business license.

Marijuana remains illegal under federal law, even though Washington legalized possession, production and regulation of the drug via Initiative 502 in 2012.

The case could open the door to a court ruling on whether the federal government can trump or pre-empt Washington’s pot law. Such a ruling could invalidate Washington’s regulations and emerging pot industry, or uphold it. Either outcome could influence legalization campaigns planned in states such as California.

Wenatchee’s mayor had recommended the City simply drop the federal requirement from its business-license process. But the City Council voted 4-3 earlier this year to maintain the federal compliance provision.

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Justice Antonin Scalia Backs Unlawful Search and the minority.

Posted Tuesday, May 13, 2014 by Andrew Charles Huff

Kudos to U.S. Supreme Court Justice Antonin Scalia, who has regularly backed Fourth Amendments protections against “unreasonable searches and seizures.” Recently, in Navarette v. California, Scalia disagreed with the court’s conclusion that the police could lawfully stop a car after a person anonymously called 911 and reported the car had driven her off the road. Scalia wrote that such stops were not the constitutional framers’ concept of a “people secure from unreasonable searches and seizures.”

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Judge-“No Probable Cause to Arrest-Case Dismissed”

Posted Monday, May 5, 2014 by Andrew Charles Huff

A major victory for a client charged with Driving Under the Influence in Tacoma recently. The arresting officer made a valid traffic stop based upon a minor infraction. However, client exited the vehicle and walked towards the officer with no problems, and performed well enough on the Field Sobriety Tests. Client was not slurring and did not appear confused.

The key here was the Field Sobriety Tests. Although the client exhibited a few clues, her overall performance was very good. The judge summarized his ruling by looking at the entire picture or the evidence as a whole. While there was evidence of drinking, not so for impairment. We win!

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Too High to Drive?

Posted Thursday, February 27, 2014 by Andrew Charles Huff

Washington recently legalized the personal use of marijuana for those age 21 and over by way of Initiative 602, joining the state of Colorado. This new law has similar restrictions to the use of alcohol. For example, besides being a certain age, one cannot simply enjoy a toke out in public (at least not legally, that is). And like alcohol, driving a vehicle while affected by marijuana is illegal.

But how does the law determine if you have taken too many hits off the bong? The first way is if you have a measured amount of 5.0 ng of THC concentration in your blood within two hours of driving a vehicle. This is normally measured by drawing a sample of your blood and having it analyzed. The other method is based primarily upon observations made by the police officer, including the use of field sobriety tests, of which many we have all heard of, such as the One Leg Stand, and Walk and Turn.

One challenge facing officers investigating a driver suspected of being impaired by marijuana alone are the use of these standardized field sobriety tests, such as the Walk and Turn, and One Leg Stand. The problem is these tests were solely developed to use on drivers suspected of “alcohol” impairment, not marijuana. The various studies which developed this battery of tests for law enforcement concluded that those who display a specific number of clues were likely to be over a .10 blood alcohol level. No where was it determined or even mentioned that these tests could be used for those suspected of being too “high” to drive.

So the question remains that unless there is an admissible blood draw showing 5.0 ng of THC, just what is “too high to drive?”

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DUI “Checkpoints”-Not in Our State

Posted Friday, February 7, 2014 by Andrew Charles Huff

Most of us have been in that situation before…we are driving down the road and suddenly we see flashing lights in our mirror. Next is the sinking feeling in the pit of our stomach as we look for a place to pull over and hope our vehicle registration is current. But when this happens, our men or women in blue must have a reason to light you up and assert this authority. And we know what they are…speeding, expired tabs or other infraction, or something more serious like Reckless Driving.

Officers regulate traffic, advise motorists of hazards, investigate crime scenes, make arrests, anything else that is within the course of their duties as a law enforcement officer. But as agents of the State, police officers’ actions are governed in part by the US and Washington State Constitutions. Any action or restriction imposed upon us by law enforcement must be reasonable and constitutional.
We have a right as citizens to be free from unreasonable search and seizure. “Unreasonable” has been held to mean without “probable cause” or a legal basis to conduct a stop. For example, a police officer can stop you for speeding and write you a ticket. A police officer can stop a driver if he observes signs of intoxication while driving. A police officer cannot, however, stop a driver to simply check and make sure all is well. Officer Jones cannot pull one over for no other reason but to see “if” the driver “might” be showing signs of impairment.

Other jurisdictions that have tried these “DUI roadblocks” have run into constitutional challenges. A federal appeals court recently halted a sweeping set of changes to the New York Police Department’s practice of stopping and frisking people on the street, and in strikingly personal terms, criticized the trial judge’s conduct and removed her from the case.

Any discussion of trying to implement such “check points” in our state must always be met with absolute resistance. Our freedoms and privacies we currently enjoy must be protected, even simply driving down the street minding our own business. Once we give those up, we might never get them back.

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