Know the Facts - Change the Law

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

Wednesday, November 25, 2009

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.


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