Lessons From Marijuana Legalization in California

October 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I recently started doing a podcast.  Since I love talking it’s really been a blast.

My guest yesterday was a lawyer in California named Josh Schneiderman.  Josh works for a 450 lawyer firm with offices around the Southwest named Snell & Wilmer.  He represents businesses and companies in California in the cannabis industry.  By all accounts it is a cutting edge practice.

You can watch the podcast here.

Here are some major takeaways from the discussion:

While cannabis is legal in California, it is still prohibited by the Federal Government

This creates major headaches in far reaching areas you might not anticipate.  For example, if you are trying to patent a particular cannabis product – the Federal Government won’t grant you a patent.  Or, if you need a loan from a federally backed lender – you can forget that too.  Or, if you need bankruptcy protection you can’t get that either.  And the list goes on and on.

Some Banks and Credit Unions Will Take Cannabis Money – But it’s a Challenge

If a bank is going to take cannabis money — usually cash — they have a complex scheme of checks and audits they are responsible for to make sure they aren’t taking black market deposits.  That includes in some cases detailed direct analysis of the grower or retailer of the marijuana which larger and more sophisticated banks are unwilling to do.

The Cannabis Industry is Still Largely Based on Cash

Credit card companies are intimidated and scared by some of the regulatory nightmares and possible liability – so many in the legal cannabis supply chain still operate on cash.  That forces others in the chain to do the same.

These observations were the “tip of the iceberg.”  We discussed much much more including the path Texas seems to be on towards potential legalization and the pitfalls along the way.  I hope you’re able to watch.  It was truly a fascinating discussion!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

 

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Complete Texas Law Guide to CBD, Marijuana & THC

October 10, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Screen Shot 2020-05-15 at 8.21.14 AM

Let’s start with the easy stuff:

CBD Products : (Cannabidiol) are now legal in Texas as long as it contains no more than 0.3% THC (dry weight).  The Governor signed a bill into law effective September 1, 2019 legalizing CBD.

Medical Marijuana:  Legal if you have been diagnosed with parkinson’s, multiple sclerosis (MS), ALS, terminal cancer, and several seizure disorders AND you have a prescription for it.  Also, it cannot be smoked but must be consumed in an oil or inhaler form.

Marijuana:  Still illegal — but here’s all the hubbub:

For Legal Novices: In court the state must prove what is called the “Corpus Delicti” of every crime (Corpus Delicti is latin for ‘body of the crime’).  That means they have to prove a crime was actually committed.  In a murder case – it means they need to prove someone actually died — in a drug case it means someone actually possessed something illegal.  Remember the Dallas fake drug scandal?  It was a big stink because it’s just not a crime to possess sheet rock or gypsum even if you think it’s cocaine, anthrax or weapons grade plutonium.

The new CBD law makes it extremely difficult for law enforcement to know or prove whether the marijuana they arrest someone for has a concentration of 0.3% THC or not.

But Remember:  (1) possession of marijuana is still a crime.  Just because enforcement is difficult and/or problematic for the State doesn’t make it legal; and more importantly (2) This problem is temporary for two reasons —  First, the State may hone-in on an efficient testing system; and second — it’s a good bet the legislature will try to fix this loophole in 2021 which may be in time to meet the statute of limitations for an arrest made in 2019.

For the Legally Advanced:  This has created a nightmare in determining probable cause and reasonable suspicion to search a vehicle, seize evidence, and make an arrest.

For a police officer to search a vehicle they must have probable cause they will find evidence of an offense committed in their presence.  The odor of burned marijuana has very commonly been a staple of instant probable cause.  But here’s the question now: since the odor of burned marijuana isn’t necessarily indicative of a criminal offense (because someone could smoke cannabis without the active THC ingredient — or an ingredient of less than 0.3%) then does that vitiate the probable cause as well?

Assuming the odor of burned marijuana no longer supports probable cause (and that is a big assumption) then a search based on the odor of burned marijuana would be illegal and subject to the exclusionary rule.  The exclusionary rule prevents evidence from an illegal search from being used against you in court — aka “fruit of the poisonous tree.”  In other words, you win.

Stay tuned!

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing contained in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

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Posted by niftybrady

10 Principles of Defending People: #1 Put Yourself in Your Client’s Shoes (But Only for a Moment)

June 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Over the past few weeks, I’ve been writing about what I think the top principles are when defending a person in the criminal justice system.

Here are no’s 2 – 10 to recap:

#1 Put Yourself in Your Client’s Shoes

There is much overlap in the principles I’ve suggested in this series.  You can make the argument this principle is really a combination of many of the other principles.

I must always remind myself my client and/or the people who love them often feel:

  • Scared
  • Confused
  • Angry
  • Uncertain
  • Embarrassed
  • Ashamed
  • Singled-Out
  • Hopeless
  • Worried
  • Anxious
  • Alone
  • Different
  • Abused

And even then I’m sure I’m over-simplifying what they must often be going through.  Criminal litigation is bet-the-farm type stuff.  People can lose their freedom and/or livelihood.

Lawyers have to appreciate just how important they are to their client and how much power they have in their client’s matters.  Just having an anxious client see my phone number pop up on their caller ID will ruin some people’s day even if I’m just asking a quick question or giving a small update.

Sometimes the simplicity of the golden rule is directly on target.  How would I, Jeremy Rosenthal, want someone handing the most important matter I could have in my entire life or even decade to conduct themselves?  Prepared… yes.  Organized… yes.  Knowledgable… yes.  Experienced… yes.  And on, and on and on.

Why wouldn’t I do my best to try and be the same way for another human who is experiencing many, if not all, of the emotions discussed above?

But Wait a Second…

There is an extremely important distinction.  I am not my client.

I am often asked by clients or their loved ones, “what would I do if I were in their situation.”  My answer is canned — but true:  “I’m not in your situation.”

I tell them I don’t know what keeps them up at night.  I don’t know what they want to be doing with their life in 10 years.  I don’t know if their great aunt Lucielle would spin in her grave if she knew they didn’t fight charges like the ones they’re facing.

The hard balance for any lawyer is putting themselves in their clients shoes and feeling the gravity of the situation — but remaining the detached expert who can give objective advice.  If I suffered from all of the emotional landmines I outlined above there is no way I could do my job.  I just have to remember they are always there.

Some lawyers do too good of a job putting themselves in their client’s shoes.  They stay there.  It can be problematic because the lawyer gets so wrapped up in the client’s problem — it becomes the lawyer’s problem too.  The lawyer loses objectivity, is less objective in their evaluations, arguments, and representation.

Lawyers need to put themselves in their client’s shoes… at least for a little while.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

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Posted by Jeremy Rosenthal, Esq.

Do You Need a Lawyer for a Drug Case in Texas?

February 11, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Drug cases are very technical in nature and are typically more defendable than you may think.  They’re not hopeless and by just talking with the prosecutor yourself, you’re precluding almost any chance of acquittal.  This is for several reasons.

First is that the evidence must be seized lawfully.  In Texas, Article 38.23 of the Texas Code of Criminal Procedure holds that unlawfully seized evidence cannot be admitted into evidence.  If the prosecution has no evidence, they lose because they have the burden of proof.  The sands are constantly shifting between what is reasonable police conduct and what is not under the 4th Amendment to the U.S. Constitution.

If you’re reading this article for your own case, you probably know by now that police can sometimes be highly aggressive, persistent, and sometimes manipulative in their goal of searching your person, car, or home.  When they legally reach too far — and it’s an easy and common mistake for them to make — a judge may throw out all or some of the evidence against you.  This happens where I practice, in Collin County, Texas, all the time.

Also the legal definition of “possession” in the Texas Penal Code under Section 1.07(a)(39) means “actual care custody control or management.”  Merely because you were in the same vehicle or area where drugs were found doesn’t mean the evidence is legally or factually sufficient to demonstrate “possession” and could also mean acquittal from a judge or jury.  And remember — the state has to prove you are guilty.  You have the right to remain silent during the arrest and all through your trial and never have to prove your innocence!

Though the Texas legislature and courts have made recent pushes towards rehabilitation for marijuana cases and other prescription abuses such as hydrocodone or oxycontin, the government’s version of “help” could still mean labeling you a criminal for the rest of your life an subjecting you to treatment which could be inferior to treatment you could get in the outside world.

Having an attorney in a Texas marijuana or other drug case can help you evaluate your legal position in the matter and if necessary, can help mitigate the charges against you.

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is a Texas Super Lawyer as designated by Thomson Reuters.  www.texasdefensefirm.com

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