Know the Facts - Change the Law

Know the Facts - Change the Law
Life - Liberty - Pursuit of Happiness

Wednesday, November 25, 2009

UD fraternity fined $50,000 in hazing after drinking death of freshman


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Now, there's a headline you will never see refering to a ganja party. It is absolutely impossible to use enough ganja to die from toxic death. Yet, alcohol deaths are a real epidemic, many students come out of school fully immersed alcoholics on a slide that will kill them early, and many commit crimes such as drunk driving that kill many innocent people.
Compared to the mass murder caused by alcohol, ganja is a barely a jaywalker.

November 25, 2009

UD fraternity fined $50,000 in hazing after drinking death of freshman

The News Journal

WILMINGTON -- The local chapter of Sigma Alpha Mu fraternity at the University of Delaware was fined $50,000 by a judge for hazing following last year's death of a freshman at an off-campus party.

According to the Delaware Attorney General's office, a representative of the Delta Lambda chapter of Sigma Alpha Mu did not appear at last week's arraignment, after also skipping a previous proceeding, and so no one was present to oppose the state's motion for a judgment against the chapter.

Court of Common Pleas Chief Judge Alex J. Smalls then fined the group $50,000 and entered a no-contact order with the state of Delaware "until the fine is paid and an interview takes place with the Attorney General's office."

Jason Miller, a spokesman for Attorney General Beau Biden, said the office was pleased with the court's decision which "prevents this fraternity from operating in the state of Delaware and sends a message to other fraternities that this behavior is not acceptable."

No representative of the chapter could be located for comment.

A link to Delaware's Affirmative Defense


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As may happen from time to time, I recently got an email that asked some questions I felt are important enough to share and answer openly. That email is at the end of this post.

The affirmative defense (in Delaware, it is called the Choice of evils law.) is in Delaware Title 11, Chapter 4. This law has been in effect since 1953 and used successfully by patients using medical cannabis who subsequently will not be protected if SB 94 is passed..

I've bolded the main section as it applies to medical ganja consumers.

Neither NORML nor Marijuana Policy Project cares that the very law that has been acting to stop almost all patient arrests in Delaware will be dismantled just to pass a very bad substitute that will not only protect fewer patients, but will create several new anti-recreational/anti-religious laws and ultimately end up with more patients being arrested. All the acronyms care about is self-promotion.

Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
11 Del. C. 1953, § 463; 58 Del. Laws, c. 497, § 1.;

In answer to the request for case law, I never claimed that there is any case law. I said that back when patients were being regularly arrested, anyone who mounted an affirmative defense was never convicted. I have also said that at the moment, the affirmative defense listed above is still an option that SB 94 will intentionally destroy.
The problem with trying to research case law based on affirmative defense of medical necessity is that if one successfully uses an affirmative defense no case law is generated, the charges just go away. One is neither found guilty nor not guilty; the charges are simply dismissed. At best, one could use forensics to identify and find patients who have been arrested (which would be rough in the last ten years*) and track back to court hearings and see if an affirmative defense to prosecution was successful.

I would refer you to Dr. Morgan, who traveled from New York as an expert witness for several Delaware patients, but unfortunately he has passed. Patients Out of Time might have some references, since they helped with research a few times. We chose not to maintain any such records in cases where we helped get charges dismissed so that law enforcement could not abuse the resource.

Just as with SB 94, there is no case law that protects patients who use ganja in most of the circumstances you mention - drug testing, pre-employment, or transfer. SB 94 would "protect" (kind of) a very small handful of patients, intentionally throwing the rest to the drug war wolves through the encouragements to escalate arrests once again for the majority of patients who would not be protected (in addition to creating new legislation to further criminalize and encouraging increased arrests of recreational and religious consumers).

I could not point to case law about unemployment, there is none. I can only refer to personal knowledge and the legal reasons that can be used to deny unemployment insurance (this can be verified simply enough by checking the federal Department of Labor website).

I once lost work due to a urine test but still got full unemployment, I also know a number of people in the same boat. I also once lost a job because I told them the only way I'd urinate in a cup was if I got to watch them drink up. I got unemployment benefits in both cases.

The very few reasons for being denied unemployment upon termination - leaving work without good cause, being fired for just cause in direct connection with the job - such as unexcused latenesses - absences -insubordination, conviction and sentencing to jail. Having drug metabolites in one's system is not a legal reason for the denial of unemployment insurance. Refusal to take a urine or blood test is also not a legitimate reason for denial of unemployment insurance. Remember, urine testing is not a legitimate measure of on the job performance and is not a direct connection to your job.

Anyway, here's a link to the applicable unemployment eligibility determination code -

Potential employment is not covered under SB 94. While part of me wants to say just don't apply for jobs where they urine test, the reality is that these tests are very easily defeated and should not be an issue for a relatively intelligent person.

Cultivation is a grey area. Patients growing a few plants have successfully used affirmative defenses. Growing dozens of plants is probably going to be charged differently and the burden of proof is on the defendant to show that the two tons of weed was to treat chronic pain, migraines, colitis or glaucoma (all diseases SB 94 will not protect at all).

All of this is moot because as far as Delaware Cannabis Society has been able to research, patients are simply not being arrested. In fact, the overall arrest rate for ganja has been plummeting for the past decade, and is now a tiny fraction of what it was back when Delaware Cannabis Society first came about. That will all change if SB 94 passes - then tens of thousands of patients not specifically "protected" by SB 94 will be at the mercies of cops looking to bust pot smokers.

Transfer in Delaware is illegal, but again, patients of all sorts simply are not being arrested. If SB 94 passes, patients (those few eligible) will be further criminalized if they transfer ganja to another patient who just happens not to be covered by the law (most patients). Several other new anti-marijuana laws create similar criminal problems for against regulation transfers, such as the loss of ID card (Opening a "protected" patient to law enforcement harassment.).

One last item I recently noticed. Wording in Senate Bill 94 seems to be an encouragement to law enforcement to use property forfeiture against anyone not specifically protected by it.

And, one last closing item. Qualifying for protection under SB 94 requires that a medical practitioner must make a written prescription for medical marijuana. I know that this is not definitive, but a quick survey of the dozen doctors who answered the question over the past week stated that they would not write recommendations under the new law.

As a patient who would qualify under SB 94, I really wish I could support it. But, I am not so shallow to think that it is right to throw so many other patients to the drug war wolves for the protections I would get. That is self centered and greedy, and no legitimate patient should want to see others put in yet more danger for such false security as profered by SB 94. Shame on patients who would throw their brothers to the drug war wolves - SHAME ON YOU!

* Finding any patients who were arrested in the past ten years would be pretty much impossible. I have been tracking arrests and attending many hearings, and I have not been able to identify a single arrested patient in ten years. Maybe someone else with more resources and better luck would be able to find one. But, I've identified and traced almost a thousand ganja arrests and other than some out of state people or people who moved away and I could not track, I have not found a single legitimate patient who was arrested.

----- Original Message -----
Sent: Saturday, November 07, 2009 4:45 PM
Subject: Re: Report: Pot use, arrests rising in California

Hi Richard,

You've mentioned frequently that ganja is virtually legal for medical patients due to case law. Can you point me in the direction of these cases so I can familiarize myself with them? I'd like to know what limits there are, if any, if there is anything that can be used to defend against drug testing in the work place, how cannabis use might affect one's eligibility for unemployment, and anything regarding cultivation and transfer.


Monday, November 23, 2009

4 took baby on drug buy, police say - OR, how NOT to act when buying ganja


4 took baby on drug buy, police say

This is a good example of things that would not happen if ganja were legal today. How would SB 94 help prevent situations like this? SB 94 will only make things worse.

That said, note where the ganjaists went wrong.

If you have to travel with children, make certain they are properly secured. If one gouy has to sit on the transmission hump, too bad. Make sure your license, car registration, insurance and the condition of the car are not going to give cops any reason to eyeball you, or "enhance" charges against you.

For gods' sake, don't stash your damned weed right next to the baby. What are you, brain damaged? Keep your weed, bowl and papers in your pocket. When you get your sack(s), don't try to hide in a friggin' parking' lot filling a bowl or rolling fat ones. Go home. You are far safer in the privacy of your own home. Did I ever mention that nearly every ganja bust in Delaware is during some sort of traffic stop? No one is busted in their own homes smoking a little ganja.


See the sentence above regarding brain damage. Even if it seems like they "got you", shut the heck up. What in your mind wants you to help the cops make your life into hell?

Make sure your passengers know enough NOT to talk to the police or give permission to search. If the cops have to ask for permission to search, they do not have probable cause. If they have probable cause, they are not going to bother asking for permission, since you will already be in the back of a cop car wearing handcuffs.

Things WILL NOT go easier on you if you cooperate. Does it look like any of these boys are having an easy time of it? NO! Because they did not know enough to shut up and not give permission to search.

(Coming up, new information about how to mount an affirmative defense as a medical marijuana patient if you get busted. I really hope enough people tell their state congress critter SB 94 sucks, or we will lose this defense for MOST patients for a half-assed law that only protects a tiny number of patients who are not being arrested in the first place, and more people will be going to jail.)

November 23, 2009

4 took baby on drug buy, police say

The News Journal

A 25-year-old Newark man and three of his friends were arrested for drug possession Friday afternoon after they drove around looking for drugs with a 4-month-old baby in the car, police said.

New Castle County police said officers stopped a suspicious car near the Castle Brook apartment complex at 1:35 p.m. after a call came in describing the car. Police responding to Saienni Boulevard and Karen Court stopped the car and found an infant improperly secured in the back seat.

According to court documents, Stephan Vickers, the baby's father, was driving. Craig Anderson, 24, and Matreed Spruill, 25, were in the back seat with the child improperly fastened between them. Drew Norris, 23, was in the passenger's seat next to Vickers, court records show.

Court records said Vickers gave police permission to search his car and that an officer found two plastic bags containing marijuana and drug paraphernalia. One bag of marijuana was in the back seat, next to the child. Police said another bag was on the floor, behind the passenger seat. Officers also found drug paraphernalia.

Police said the four were on an outing to buy drugs. The suspects were charged with multiple drug offenses, endangering the welfare of a child and conspiracy. Vickers also was charged with driving with a suspended license, driving without insurance and failure to transfer title and registration. All were committed to Young Correctional Institution, Norris and Spruill on $1,750 bail each, Anderson on $4,000 and Vickers on $3,750 bail. The baby was turned over to family members.

Could Delaware's Prison Overcrowding Problems Be Solved By Decriminalizing Ganja?


The Open Secret is that most of the people in Delaware's prisons are there not for committing a major, dangerous crime, but for pissing the wrong color. According to the study, Delaware Serious and Violent Offender Reentry Project 2003 to 2006 Evaluation with Recidivism Results, other state incarceration reports, and rough correlations made between the figures for Work Release, and the inmates who are there for violation of probation (most of which are for ganja related "dirty" urine tests), about 35% of Delaware's prison population is in the system for ganja related violation of probation or enhanced anti-ganja sentencing.
Don't get me wrong. If one has committed a serious, violent crime, there is no excuse for that. But when about 35% of the prison population consists of merely having having smoked some ganja the time to analyze the rationale behind that treatment has come.
Given the relative safety of ganja consumption, it makes about as much sense as the re-incarceration of people because they took a couple of over the counter pain relievers, since it is provable that taking counter pain relievers is more dangerous than consuming some ganja.  It makes as much sense to re-arrest people for drinking milk. If about a third of prisoners have consumed ganja, you can rest assured that almost all of them have drunken milk.

Friday, November 6, 2009

Report: Pot use, arrests rising in California


Despite the Pollyanna rhetoric about the non-existent "New Obama Policy", the arrest rate continues to soar in California and every other state that has passed so-called medical marijuana laws. Instead of creating a more rational environment, it seems pretty obvious that these laws have muddied the waters and encouraged law enforcement to arrest more people for ganja related crimes.
These facts, coupled with the limiting effect of Delaware's Senate Bill 94, which will destroy a broadly available affirmative defense, intentionally limit the number of patients who can use medical marijuana, and creates several new anti-religious/anti-recreational consumer laws is why Delaware Cannabis Society has decided NOT to support SB 94.
What rational person would abandon the dropping arrest rate in Delaware in favor of a bill that would end encouraging law enforcement to arrest more patients, more religious consumers and more recreational consumers? Where is the sanity in the concept of supporting such a poorly written bill?

Report: Pot use, arrests rising in California

Friday, November 6, 2009

Marijuana arrests in California are increasing faster than the nationwide rate...


Nationally, Gettman said, marijuana arrests have doubled since 1991,but marijuana use is unchanged.

Gettman is a former director of the National Organization for the Reform of Marijuana Laws. He said he favors the legalization of marijuana.

Gettman's report came a day after state officials announced that the state-federal Campaign Against Marijuana Planting had seized a record 4.4 million pot plants in California this year, up from 2.9 million in 2008.


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