The Odor of “Unburnt Marijuana”

January 29, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

What police smell in a car is important.  Certain drugs — Marijuana in particular — have such a distinctive odor that the odor in and of itself can provide an officer probable cause to search a motor vehicle in Texas.

Burnt marijuana has such a distinctive odor which is replicated through training at the police academy.  In class they are able to smell either a small amount of burned marijuana or a tablet designed to replicate the smell (if they didn’t already learn the smell in high school or college).

Some patrol officers will tell you they can smell burned marijuana in a car with rolled up windows, in a park a mile away, or in an airtight cabin on a distant hill with steel walls.  Who am I to say this isn’t true?

It seems like more and more frequently, though, police are claiming the ability now to be able to smell the odor of “unburnt marijuana” as well as “burnt marijuana.”

This claim is disturbing because there is little, if any, scientific proof unburnt marijuana is so distinctive a smell it can be accurately diagnosed with any regularity when not in a mass quantity or by a person in close proximity.  Translation — it’s a green-light for police to profile teenagers, minorities, or people who simply seem to be nonconformists.

Why This is Such a Frustrating Problem

It’s incredibly difficult to cast doubt on an officers claim to be able to smell fresh or unburnt marijuana.  This would most likely be addressed in a motion to suppress to eliminate the evidence arguing the search lacked probable cause.  In that event a police officer will almost certainly tell the judge based on his (years and years and years) of street-smart experience, he’s developed a magic nose for this stuff and he confidently asserts he smelled it your car.  Whether the officer ultimately found a baggie with stems and seeds in the console, or a garbage bag full of fresh marijuana in the trunk, chances are a judge is going to believe them.

In cross examining a self-assured officer who claims this ability, scientific studies showing he only thinks he smells it are probably only admissible where (1) we have an expert of our own on the topic; or (2) the officer recognizes the article as an authority (good luck with that!)

Other options include tough cross examination on the existence of wind, gas fumes, or other odors on the roadway… but again, in the face of a confident officer (who actually found some marijuana in the car in question), showing his testimony is not credible is tough even for the best of cross-examiners.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Communications through this forum are not privileged.


Getting a Marijuana Arrest off Your Record

October 26, 2012

By Collin County Criminal Defense Lawyer

(972) 369-0577

www.rosenthalwadas.com

A marijuana arrest doesn’t look good on a resume.  There are obviously much worse charges someone may face — but this doesn’t mean a drug arrest like this should be taken lightly.  It can result in the loss of a driver’s license or even in the loss of financial aid.

What we do in these cases — as with almost all criminal charges — is we plan backwards.  We know our goal is almost always going to be a non-disclosure or expunction, so we do our best to position the final result to have our clients be eligible for non-disclosure or expunction.

Fortunately there are many different ways to be eligible for non-disclosure or expunction.  We thoroughly review the evidence in the case to make sure the state has a ‘leg to stand on’ in bringing the charges.

Merely because someone is found in the same car doesn’t mean they’re guilty of possession of marijuana.  The law requires the state to prove the defendant had “actual care custody control or management” of the contraband in question.  Also, there are frequently questions about how the drugs were attained by the police.  Remember, police often target younger people or people who may dress or act differently.  Sometimes they can be far too aggressive or manipulative in the police encounter and a judge may declare the arrest improper.

Another way we can attempt to clear a record is to have the charges either reduced or to seek invitation into the district attorney’s office pre-trial diversion program.  This requires us to be able to let the prosecutors know our client otherwise has a clean history and can enter a program which helps them if they have drug issues.

The key in making sure we can help someone clear their record is double and triple checking our facts, having a command of the law, and having the know-how to make your case to a judge, jury or prosecutor!

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications sent through this forum are not confidential nor privileged.

 


Can a Drug Conviction in Texas Impact Financial Aid for College?

March 19, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Yes.  Here is a great article I found recently on the topic which discusses some of the far reaching collateral consequences of marijuana convictions all across the country.  Collateral consequences of convictions range from eligibility to be a foster or adoptive parent, gun ownership eligibility, or difficulty in receiving federal financial aid.

The article points out that under 20 U.S.C. 1091(r), a student that is convicted under federal or state law is not eligible for federal financial aid for 1 year for a first conviction, two years for a second conviction, or an indefinite period for a third conviction.

Keep in mind that under Texas law, deferred adjudication means that a person is not convicted.  Although, some federal agencies do not recognize deferred adjudication (such as in immigration proceedings for example).

Before accepting a deferred adjudication or conviction for marijuana offenses, be sure you have been thoroughly advised by your attorney.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.


Collin County Deferred Prosecution Program — Update (1/31/11)

January 31, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Many changes have and are taking effect under new Criminal District Attorney Greg Willis.

Amongst those changes are changes to Collin County’s Deferred Prosecution Program.  That program was originally instituted by former District Attorney John R. Roach, Sr. and allowed youthful “offenders” the opportunity to avoid having their cases be filed formally in exchange for a less-formal probation under the supervision of the Collin County Community Supervision department (probation).

There were many complaints about how Mr. Roach’s administration ran the program.  For example, there were formal guidelines set in place that were inflexible and could be somewhat arbitrary.  For example, people were refused entry into the program because they did not reply within the narrow time frame given to them regardless of the reason.

Also, the method in which people were contacted was suspect.  First, the person would receive direct notification of the program via an unsigned letter bearing the letter-head of the probation department.  The letter would invite the offender and his/her parents to come and confess to the crime — and that they would then be considered for admission into Deferred Prosecution Program (the letters did not come from the DA’s office).  Lawyers in Texas cannot directly contact persons they know to be represented by counsel in opposing matters.

The new Collin County DA’s policy towards the Deferred Prosecution Program takes a far more common-sense approach.  It appears as though they are evaluating the program on a case-by-case basis and they are willing to review cases submitted to them for review.  It’s guesswork at this point as to how exactly the old-guidelines will play into the new decision making, but the Defense lawyer community is hopeful that the program will be more fair and available to people deserving a second chance.

Obviously, the DA’s office has to draw the line somewhere with allowing people into the Deferred Prosecution Program — which means that not everyone will get what they want.  At least everyone will be heard.  And that’s a huge change.

Ask your lawyer about the Deferred Prosecution Program in Collin County if you think it’s an option for your case or your child’s case.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice for any specific situation, you should directly consult with an attorney.