Juveniles & Justice

School Daze

2011-11-04T09:15:00.000-07:00

The recent decriminalization of marijuana has lead to the (misguided) impression that police are powerless to make arrests for smoking pot. Wrong!
Understand that distribution, or possession with intent to distribute marijuana, even if less than an ounce, can lead to serious trouble with the law. It would be wrong to assume distribution equals drug dealing-selling large quantities of drugs for a big profit. In fact, distribution occurs anytime some quantity of drug, no matter how small,is given to another person. It does not matter whether money, or anything of value, is given in exchange for the drugs. Examples of distribution would include giving someone a joint, even if partially smoked, to another person. Or, one person splitting a bag of pot with another.
If this behavior occurs on or near school grounds, the person charged with distribution would be subject to enhanced punishment. A person convicted of distribution of drugs-including marijuana-within 1000 feet of school property faces a minimum mandatory sentence of two years in jail.It is no defense if school is not in session.
Also, driving after smoking pot can lead to an arrest for operating under the influence of drugs-with the possibility of a significant loss of license.

SMELLS LIKE...TROUBLE

2011-08-28T08:42:00.000-07:00

By now, you may have heard of the decision by the highest court in Massachusetts regarding the odor of marijuana. The case involved an automobile stop for a minor civil infraction-parking near a hydrant. When questioning the driver and passenger, police smelled burnt marijuana and ordered the occupants to exit the vehicle. A search of the passenger revealed crack cocaine and he was placed under arrest.

The Supreme Judicial Court held that the odor of marijuana was an insufficient basis for removing the individuals from the car. This reasoning was based on the recent voter-approved change in the law decriminalizing possession of one ounce or less of marijuana.(For a more detailed explanation of the new law see "How Legal is Pot" at my website; www.friendreinhardt.com)If the police had no basis for assuming a crime had been committed, the Court reasoned, then police had no basis for ordering the occupants out and conducting searches.

However, this should not be taken to mean police are powerless to act when confronted with drivers who smell of marijuana, or who are witnessed smoking marijuana. Police can-and will- question such a driver to determine whether he or she is operating under the influence of drugs.This carries significant criminal penalties, including a lengthy license suspension. ( See, "Kids ,Cars and Consequences" at my website.)

In addition, if police have a basis to believe that an individual is possessing more than an ounce, a more thorough search can occur. Such a search often leads to more serious charges if police discover multiple,small bags of marijuana, baggies and/or a scale. In such a case, the occupants of the car will often be charged with possession with intent to distribute.

Young people need to understand they are far more vulnerable to stops and searches while in a motor vehicle as opposed to in a residence. A minor infraction or equipment violation(tail light out, etc.) can lead to a stop and sharp questioning by police officers.

The Power of Silence

2011-03-17T09:40:00.000-07:00

Recently, I received a phone call from a nervous mom regarding a conversation she had with a police officer. The officer told her he needed to speak with her and her son-a juvenile-regarding possible criminal conduct her son had been involved with. He went on to say he expected them at the local police station within an hour. It was not phrased as an invitation.

Although the mom was simply looking for advice prior to bringing her son to the police station, I reminded her that answering questions from the police is voluntary, not mandatory. We have all seen hundreds of films and TV shows where a suspect is advised of his or her right to remain silent. Likewise we all know what “taking the 5^th” means; refusing to answer questions regarding possible criminal activity.

Nonetheless, many folks, particularly the young and criminally inexperienced, feel they have no choice but to answer all questions when confronted with a demanding police office. A common assumption is made that it will result in more lenient treatment if a suspect offers a complete statement, even if the statement is an admission of one or more crimes. Police often encourage this line of thinking with implied promises of favorable treatment if you only “cooperate” i.e.-tell them what they want to hear. Understand that these implied, unwritten offers of leniency are entirely unenforceable, but the statement provided can be used in any criminal proceeding.

Few things are more discouraging to a criminal defense lawyer than reviewing a weak case against a client only to discover the client has made damaging admissions. At that point, the holes in the case are immaterial; the client has filed in the gaps for the prosecution with his own words. The right to not assist the government in one’s own criminal prosecution is invaluable and should be forfeited in rare instances only.

If your child is suspected of criminal activity and the police are seeking to question him or her, do not agree to any questioning without first consulting a criminal defense lawyer. A statement once made can not be retracted and will often lead to serious and long-lasting consequences.

You have the right to remain silent-USE IT !

The Party's Over

2011-02-01T13:25:00.000-08:00

As you may be aware, recent under-age drinking parties have resulted in a significant police response. This has resulted in notification to school officials- with attendant suspensions from extra-curricular activities, etc- and, in some case, criminal charges. Repeatedly, two questions have been posed by parents: Can police compel my child to take a breathalyzer? Do the police have the right to search handbags, backpacks, etc.?

BREATH TESTS:

The short answer is “no”, no one is obligated to take a breath test. In addition, a refusal to take a breathalyzer may not be used against an individual in a subsequent criminal prosecution. However, a refusal to take a breathalyzer exam at a police station after an arrest for drunk driving (DWI or OUI) will result in a significant suspension of the right to drive a motor vehicle.

At a party, police are usually demanding that kids take a portable breath test (PBT) to monitor alcohol consumption. The PBT –as opposed to the breathalyzer machine at the station-is not considered reliable and the results are not admissible in court. A refusal to take a PBT can not, under any circumstances, lead to the loss of the right to drive.

Your child can refuse to participate in the PBT without fear of criminal prosecution. Of course, police may notify a school of suspected alcohol use based on a student’s refusal to take the PBT. However, without a reading from a PBT, a school may have limited evidence to impose sanctions on a student.

SEARCHES:

The right of police to search personal effects is significantly limited by the U.S. Constitution and the Massachusetts Declaration of Rights. In general, prior to an arrest, police may only search bags, etc. if they have a reasonable basis for believing the bag contains contraband (drugs, weapons, alcohol in case of a minor). The basis for searching must be specific to the owner of the bag. For instance, the owner of a bag was observed placing a flask-like bottle in his or her bag. Mere presence at a party with underage drinking occurring is not a sufficient basis for searching all handbags, backpacks, etc. The standard remedy for an unlawful police search is the suppression of the evidence in criminal prosecutions.

However, be advised that police can lawfully search a handbag, etc. if the owner consents to the search. The request to search from the police may often sound like a demand, particularly to a young person who may be intimidated by authority. Nonetheless, a student can refuse to give consent without repercussions from the justice system. Of course, participation in voluntary activities (school dance, flying on a commercial airplane, entering a ballpark) may be conditioned on consenting to a search of personal effects. A refusal to allow a search, though, will not lead to criminal charges but denial of participating in the activity.

Please visit my website at www.reinhardtlawoffices.com.