Austin Marijuana Lawyer – Phantom Pains?

Written by swayze on October 31st, 2011

I recently came across an acquaintance who told me of their male relative living in Austin, Texas, that had lost a leg and had been experiencing what she referred to as phantom pains. According to an unofficial online medical dictionary, a phantom pain is described as, “pain felt as if it were arising in an absent or amputated limb or organ.” This relative had been in somewhat of a funk for the past year since the loss of his leg. Apparently, within the last week, he smoked marijuana and the phantom pains stopped. She said that he seemed to be adjusting better to the loss of his leg and was actually smiling again.

Whether or not marijuana has any effect on reducing the occurrence of phantom pains is obviously a controversial subject. I have not researched the issue, am not a doctor, and in no way hold myself out to be an expert on the effects of marijuana in such cases. I will let the doctors, scientists, and researchers concentrate on providing advice in that area.

One person dealing with the loss of a limb provides very little, if any, statistical data by which to draw any conclusions regarding the effectiveness of marijuana use in combating phantom pains. For instance, my acquaintance said that it had been a year since her relative had lost the leg. It may very well be that a year was the amount of time that this particular individual needed to mentally deal with the loss of his leg. The marijuana may have played very little, if any, role in the change in behavior and perceived recovery from phantom pains.

I am going to assume for the purposes of my discussion that the marijuana did have an effect on his behavior and/or phantom pains, regardless of whether the beneficial outcome was due to perception or reality. Whether there is scientific research to support the proposition that there is a positive correlation between marijuana use and pain relief will remain a question to be answered on another’s web page.

Whether or not marijuana has an effect on a person’s actual or perceived pain symptoms does not change the fact that marijuana is illegal in Austin, Texas. As I have posted on numerous occasions, marijuana is illegal, and if you possess even a usable about of marijuana, you face prosecution for possession of marijuana.

Even obtaining a doctor’s note with proof of pain relief by means of marijuana does not excuse the subject from possession of marijuana charges.

If charges are pressed, there is a period during which negotiations with prosecutors occur. A lot of what is referred to as “boy scout” type material is discussed. “Boy scout” material is a term used for material or information discussed that is beneficial to the client. My thoughts are that a person’s criminal history is relevant to any and all criminal negotiations with prosecutors. On the other hand, I have had informal discussions (not dealing with a particular case) with prosecuting attorneys on a similar topic. What if a person had a prescription for marijuana from another state? My thought was that providing this type of information might harm the client during negotiations. However, information regarding a person’s health may be beneficial to a criminal negotiation, but whether a client’s health was relevant to a particular negotiation would be dealt with on a case by case basis. If you have questions regarding a marijuana charge, please call my office to schedule a free consultation.

Austin Marijuana Lawyer
Clifford Swayze
Attorney at Law
512 E 11th Street, Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Where do I go if given a marijuana possession ticket in Austin, Texas

Written by swayze on October 19th, 2011

I wanted to repost the procedure dealing with a marijuana possession ticket issued by either an Austin Police Officer, or Travis County Deputy to ensure that it remains on the top of my Marijuana Blog. Recently, a client asked me where to go and what to do after being issued a marijuana ticket in Austin, Texas. As I have stated previously, when an officer or deputy issues a ticket for marijuana possession rather than effectuating a custodial arrest, the defendant will be required to appear at Travis County Justice of the Peace Precinct 5 to deal with the marijuana charge. The fact that a ticket was issued for marijuana possession rather than an actual custodial arrest does not lessen the charge or the punishment. If the defendant fails to appear at Travis County Justice of the Peace Precinct 5, a warrant will be issued for the person’s arrest.

The marijuana ticket issued by the Austin Police officer or the Travis County Sheriff’s Deputy will provide an appearance date for which the defendant will be required to be present at Travis County Justice of the Peace Precinct 5, otherwise known as Travis County JP-5. The address for Travis County Justice of the Peace Precinct 5 is 1000 Guadalupe St. #112, Austin, Texas 78701, which is on Guadalupe Street between 10th and 11th Streets. A person dealing with a marijuana possession ticket should show up early to ensure they can find adequate parking and get through security at the Travis County Courthouse before their appearance is required.

When the defendant arrives at Travis County Justice of the Peace Precinct 5 to deal with their marijuana possession ticket, the defendant will be given an itinerary:

1. First, the defendant will be required to proceed to Travis County Pretrial Services to obtain and complete a personal bond. (If I am hired prior to this date, we will complete the personal bond at my office.) If the personal bond has not been pre-filled out, the defendant will be required to complete the bond at Travis County Pretrial Services. At any rate, once the personal bond has been completed pretrial services will then process the personal bond.

2. After the personal bond has been processed by Travis County Pretrial Services, the defendant will then return to Travis County Justice of the Peace Precinct 5 to get magistrated. The Judge will then decide whether he approves the personal bond.

3. Once the Judge has signed the personal bond, the defendant will then be sent to the Travis County Sheriff’s Office bonding desk . The defendant will complete the process at the Travis County Sheriff’s Office.


By the end of the process, the defendant will find out when their next court date is, and where they should appear. As I stated in previous posts, which I recommend that you read, a marijuana ticket does not lower the offense level or punishment range. The person that has been issued a marijuana ticket is still dealing with a criminal charge! This entire process described above can be very lengthy and time consuming. I would not make plans to be anywhere. If you do not finish all of the above listed steps a warrant will be issued for your arrest. If you have any questions regarding a marijuana possession ticket please call my office.

Clifford Swayze
Attorney at Law
512 E. 11th Street, Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Baked Driving… Studies show what?

Written by swayze on October 10th, 2011

Steve Graham recently wrote an extremely interesting two-part blog post looking at “how marijuana affects a person’s ability to drive.” Graham discussed several scientific studies that looked into the effects of marijuana on a person’s ability to operate a motor vehicle.

The first study that Graham discusses was undertaken in 1973 by Professor Harry Klonoff of the University of British Columbia. Professor Klonoff provided “marijuana cigarettes” to his subjects, and instructed the subjects to smoke the marijuana in a uniform fashion by inhaling for 3 seconds, and holding it in their lungs for 15 seconds, and then exhaling and then resting for 15 seconds until the marijuana cigarette was “cashed”. Half of the subjects were given a placebo form of marijuana and half were given marijuana. Professor Klonoff then had the subjects drive on a course, and later drive in rush hour traffic inside the city limits of Vancouver, British Columbia. My thoughts are that a similar study at the University of Texas would not be allowed. I can’t imagine the Austin Police Department or anyone associated with local law enforcement in the Travis County area allowing the City of Austin to be turned into a veritable maze through which a group of baked rats were allowed to run amok just to confirm that a driver under the influence of Marijuana was in fact impaired.

The second study discussed by Graham was performed in 1993, when the U.S. Department of Transportation sponsored a study done by the Institute of Human Psycho-pharmacology at the University of Limburg in Maastricht, Netherlands. According to Graham’s post “This program of research has shown that marijuana, when taken alone, produces a moderate degree of driving impairment which is related to the consumed THC dose. The impairment manifests itself mainly in the ability to maintain a steady lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance, and will compensate where they can (for example) by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.”

The third study that Graham discusses involves a research report published by the Journal for the Society for the Study of Addiction. This study tried to draw a correlation or create an objective test similar to the .08 blood alcohol concentration used to determine that a person is intoxicated in Driving While Intoxicated (DWI) cases. The study drew the conclusion that a theoretical legal limit for marijuana concentration in a person’s blood should be set at 7 to 10mg/ml for blood.

The previously mentioned study should be understood in conjunction with the National Highway Traffic Safety Administration’s manual entitled “Drugs and Human Performance Fact Sheets.” This manual conversely states that “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.”

I discussed these studies with a local “professed marijuana smoker” and his thoughts were that he would prefer people not drive while Intoxicated regardless of whether the person is impaired by reason of Alcohol or Marijuana. The “pot smoker” did clarify that he would be more concerned if a person was driving under the influence of Alcohol rather than Marijuana. He thought that while Marijuana might actually make him a better driver because he would be paranoid the risk of hurting someone was greater than whatever benefit he could derive from being able to drive while under the influence of marijuana. He also stated that there is a point where he would be to impaired to drive a car, but had not recently run a test study. The “pot smoker” who is also a cyclist no longer owns a car, and said that at a certain point he will abstain from riding his bike and instead “stay seated on my couch, with a bag of chips and a tasty beverage of my choosing.”

As I have previously stated in my blog it is illegal to drive in Austin, Texas regardless of whether you are impaired by reason of Alcohol or Marijuana. Your best bet is to abstain from driving if you have consumed alcohol, marijuana or any other substance.

Austin Marijuana Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th Street, Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Marijuana Ticket Confusion!!! Austin, Texas

Written by swayze on October 10th, 2011

Austin is not the only city where marijuana laws and enforcement of those laws has caused confusion. As I have discussed in previous posts Austin Police Officers have discretion to write a ticket for possession of marijuana less than 4 ounces or to take the suspect to the Travis County Jail. This “marijuana ticket” is authorized by Texas law. Many in Austin misunderstand this discretionary cite and release procedure for marijuana possession and falsely believe that Austin has either legalized marijuana or lowered the level of punishment for minor marijuana possession to the same level offense as a traffic ticket. I was discussing this with Aaron A. Pelley, a Seattle Criminal Defense Lawyer and he told me that Seattle has incurred similar confusion about their marijuana laws. He said the confusion in Seattle is caused by a couple of situations. First, Seattle apparently has made marijuana possession one of their lowest priorities. Second, the city prosecutor has been throwing out many of the marijuana cases. The combination of events has caused confusion with the general public, but police officers continue to arrest people for marijuana possession.

While to my knowledge the City of Austin has not passed any ordinance, made any official proclamation, or made any statement saying that marijuana charges would be thrown out; the confusion still persists. To a certain extent the perception of many is that a “ticket” is no big deal. The problem is what that “ticket” represents. In Austin, a marijuana charge still leads to an arrest on your criminal history. You are still facing the same level punishment that you would before the ticket writing policy took effect. The only difference is that maybe the police officer will write you a marijuana ticket for possession rather than immediately throw you in jail. While in many situations perception is reality, with marijuana tickets perception is nowhere close to reality.

Austin Marijuana Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th Street, Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Austin Marijuana Ticket: processing and procedure

Written by swayze on September 27th, 2011


When an Austin Police Officer or Travis County Sheriff’s Deputy issues a ticket for a marijuana charge rather than effectuate a custodial arrest (did not take you to jail), the defendant will be required to appear at Travis County Justice of the Peace Precinct 5. When the defendant arrives at the Justice of the Peace court to deal with their marijuana possession charge they will be handed the itinerary I have attached to this post.


1. The first step in the process will be to proceed to Travis County Pretrial Services to obtain a personal bond form. The defendant is required to fill in all the necessary information and have pretrial services process the personal bond. When I have a client hire me prior to this appearance date, we will fill in the personal bond information at my office.

2. The next step is to take the completed personal bond back to Travis County Justice of the Peace 5. The defendant will then attend magistration court. The Judge will then determine whether he approves the bond.

3. Finally, the defendant will go to the Travis County Sheriff’s Office bonding desk to complete the processing of the bond.

The more defendants scheduled to be processed on that day and time the longer it will take you complete the entire process. I would not make lunch plans. My understanding is that the entire process will take a considerable amount of time. If you fail to complete all of the steps listed above a warrant will be issued for your arrest.

Austin Marijuana Lawyer

Clifford Swayze
Attorney at Law
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Growing Marijuana? Rational? Misuderstandings! Austin, Texas

Written by swayze on September 25th, 2011

Growing Marijuana for Person use Part 2 Austin, Texas

I have met several people over the last few weeks that, for various reasons, choose to grow a marijuana plant for personal consumption. The choice to grow marijuana in a person’s garden, bathtub, or fish tank is clearly a violation of Texas Law, and if caught the person will have to deal with at least one criminal case if not many. As I have discussed in previous posts, a person can be charged with “delivery of marijuana” in Austin, Texas, if the person shares his or her marijuana with a friend.

I have compiled a list of reasons that the various people have shared with me as to why they choose to grow their own marijuana with full knowledge that they could faces multiple criminal charges if caught.

1. Person A told me that he did not want to give money to the drug cartels in Mexico. Per the Mexican government as many as 35,000 people have been killed in drug war-related violence in Mexico since 2006, according to government figures. Some non-government reports say more than 40,000 have died. Person A, found indirectly providing money to the drug cartels via his personal marijuana consumption to be unacceptable and violated his morals. The thought that one gun could be purchased using his money was impossible for him to fathom. “I can’t have one death on my conscious.” He instead chooses to grow one plant in his garden next to several tomato plants, and I think some spinach, or something. According to the National Survey on Drug use, the number of marijuana users has risen from 14.4 million in 2007 to 17.4 million in 2010. It is undeniable that the Mexican drug war is being fueled by American’s consumption of Marijuana. To person A the risks to his freedom were far outweighed the alternative of fueling the Mexican Drug war. His moral reasoning likely will not benefit him if he is caught.

2. Person B had a girlfriend who “purchased marijuana from a drug dealer that was laced with some sort of serious chemical.” Person B received a phone call from his now ex-girlfriend a few years ago. She had purchased a joint from a person at club on Sixth Street in Downtown Austin. After smoking the joint at her apartment, “her body and mind were severely jacked up!” She was not a regular marijuana user, and has never touched it since. The purchase of Marijuana is extremely dangerous. There is no federal regulatory agency making sure that the supplier hasn’t tampered with the product, laced it with rat poison or any number of dangerous substances. Person B did not get into the where or how he chooses to grow the marijuana only that he has a plant or two at his house. Person B was aware that, if caught, he faced criminal charges, but was unwilling to stop smoking marijuana. According to Person B, Marijuana is the only substance that helps him with his anxiety problems. He does not like the side effects that common anxiety medications do to him. (I have not conducted any research what so ever into whether marijuana actually has any effect on anxiety related issues and this post is not intended to promote marijuana as a treatment for anxiety. If you suffer from panic disorder, anxiety, depression or any other related medical problems you should consult a medical professional.)

3. Person C said that he was rebelling against authority. He stated he is aware of the consequences of his actions and does not believe marijuana consumption is as harmful as alcohol consumption. He is so firm in his belief that the government should legalize marijuana that he looked forward to communicating his feelings to any judge or prosecutor he may face in court if he is caught. He stated that he grows 1 plant in an old fish tank in his house. That he does not share it nor does he belong to any advocacy groups. He feels the reason that marijuana has not been legalized is that the groups that support legalization of marijuana stand to lose a lot of money if marijuana were legalized.

Although all of the above people claimed to understand the full ramifications of their actions, I found that most of them misunderstood the legal consequences of their actions. I have discussed a few of the legal consequences of growing your own marijuana in previous posts and will address this issue again in the future. If you have read my blog you understand that it is educational in nature and I do not interject my personal opinion. I do want people to understand they could face serious legal consequences for possession, manufacture, or delivery of Marijuana. I have found that news coverage of this issue has confused many of the general public. As I have stated before, many intelligent people are under the misconception that a small amount of pot is legal to possess, share with their friends or grow. This is false.

Austin Marijuana Lawyer

Clifford Swayze
Attorney at Law
512- E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Ticket for POM, Austin Texas

Written by swayze on September 22nd, 2011

As I have posted previously, the State of Texas granted law enforcement officers the option of issuing tickets for marijuana possession, as long as the amount in possession is less than 4 ounces. The purpose of this law is to reduce the costs associated with minor criminal offenses. The law does not reduce the level of punishment, but instead allows the officer to issue a ticket rather than transporting the defendant to jail. The ticket will still show up on background checks as an arrest!  The issuance of a ticket rather than the effectuation of a custodial arrest has confused many who falsely believe possession of marijuana is no longer a crime in Austin, or that the penalty has been reduced. There have been no changes to the possession of marijuana statute that make marijuana legal, or even a lesser crime. The state legislature’s goal was to reduce costs associated with the arrest and prosecution of “minor” offenses, such as marijuana and other offenses.

Both the Travis County Sheriff’s Office and the Austin Police Department have, in certain situations, allowed deputies and officers to issue possession of marijuana tickets. The officer has the discretion to arrest the suspect rather than issue a ticket, under certain circumstances. A marijuana offense is only  a ticket-able offense if the person is stopped in the same county in which they reside, the person has a valid ID, the person is not a juvenile, and the marijuana in possession of the person is under 4 ounces. It is my understanding that the more marijuana a person has in their possession the less likely the defendant will be issued a ticket.

If a person is issued a ticket they will be directed to Justice of the Peace Precinct 5 where they will be magistrated.  That person will then be sent through the bonding process and will have to appear in court to fight the charge.

Austin Marijuana Lawyer

Clifford Swayze

Attorney at Law

512 E. 11th St. Ste. 202

Austin, Texas 78701

Phone: 512-335-5245

 

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Marijuana crimes, money, and resources

Written by swayze on September 21st, 2011

On September 19, 2011 The Federal Bureau of Investigations released annual Uniform Crime Report which is a nationwide, cooperative statistical effort by more city, county, university and college, state tribal and federal law enforcement agencies reporting data on crimes.

The statistics released by the FBI reported that over 800,000 people were arrested for marijuana related crimes in 2010. According to the report 45.8% of drug related arrests were for possession of marijuana. An additional 6.3% of drug related arrests for sale or manufacture of marijuana. Marijuana accounted for 52.1% of all arrests for drug related crimes in 2010. My initial thought regarding the numbers is twofold. 1. As a whole the United States is spending a large amount of money prosecuting marijuana related offenses. 2. How many resources are being devoted to apprehending people for marijuana crimes as opposed to heroin, cocaine, or LSD?

I doubt the numbers reflect that law enforcement is necessarily cracking down on pot smokers in relation to other drug offenses such as heroin, cocaine, or LSD. I think the percentage of marijuana related arrests in relation to the total drug related arrests is misleading. Nationwide my bet is there are a lot more people smoking weed then shooting up Heroin. I would like to see a report illustrating the percentages of resources that are being devoted specifically to apprehend people for marijuana as opposed to other drug related crimes.

It is specifically important to discuss this report in Austin, Texas. I have found that there are a lot of misconceptions regarding the legality and/or punishment for possessing marijuana. It is important to remember that it is still illegal in Austin to possess, manufacture, or sell marijuana. While the Austin Police Department and Travis County Sheriff’s Office in some instances will issue tickets rather than effectuate a custodial arrest for possession of marijuana, it is still a criminal offense and the person will still have to deal with the consequences of the arrest!

Austin Marijuana Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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Is being wierd? A reason to believe a person is in possession of marijuana? Austin, Texas

Written by swayze on September 20th, 2011

I was recently asked the following question “can a police officer stop you to investigate you when they have no information that a crime has occurred?”

Law Enforcement does not need to have evidence that a crime occurred prior to conducting an investigatory stop, but the police officer must have sufficient facts to prove that reasonable suspicion existed that a specific person has engaged in, or soon will be engaging in, criminal activity. The police officer’s subjective believe that a person has been involved in a crime or that the person will be engaged in criminal activity is not sufficient to stop someone for purposes of an investigatory detention. We are allowed to act weird! The standard on whether a police officer has reasonable suspicion sufficient to conduct an investigative detention is an objective standard. For instance, if an officer states “his eyes looked strange.” This is a subjective believe on the part of the police officer that the person’s eyes were strange. The police officer in this situation would not have reasonable suspicion that the person was engage in, or soon would be engaged in criminal activity. If on the other hand you driving down the street; stop at a light, roll down your window, while holding a joint in between your index finger and your thumb and blow smoke in the direction of the police vehicle then the officer has objective facts that he will be able to articulate.

The court will take into account the totality of the circumstances in order to determine whether a reasonable suspicion existed for the police officer to stop the person to investigate whether he had marijuana in his possession. The determination of reasonable suspicion by the police officer is dependent on both the content of the information known to the officer and its degree of reliability. In the scenario I described above, how reliable was the information known to the police officer at the time stopped the car to determine if the person was in possession of marijuana? Is the manner in which the person is holding the “joint” or maybe cigarette important? Is the manner in which the person is holding the “joint” or cigarette sufficiently reliable to stop the car for investigation of possession of marijuana? Is the information reliable enough to provide the officer with reasonable suspicion that the person was in possession of marijuana? To justify the investigation, the state must show that, at the time of the detention, the officer had specific, articulable facts that established reasonable suspicion. The facts described above must show unusual activity, some evidence that connects the person to the unusual activity, and some indication that the unusual activity is related to crime.

Austin Marijuana Lawyer

Clifford Swayze

Attorney at Law

512 E. 11th St. Ste. 202

Austin, Texas 78701

Phone: 512-335-5245

 

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Marijuana? Not in my possession? Austin, Texas

Written by swayze on September 18th, 2011

Courts have long held that possession may be actual or constructive (affirmative link). Actual possession exists when an object is in the “immediate possession of the person”, whereas constructive (affirmative link) possession describes a situation where a person has actual control over something such as marijuana without actually having “physical control” of the marijuana. A person found to have constructive possession of marijuana stands in the same legal position as a person with actual possession of marijuana.
For example, if one’s car is sitting in one’s driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from one.
Constructive possession is an important concept in criminal law that is now referred to as having an affirmative link to the contraband.
One important defense to possession of marijuana or delivery of marijuana case is fighting the affirmative link between the defendant and the marijuana. This situation arises when the marijuana is not found on the defendant, but in the close proximity to the defendant. As I have previously posted the state cannot convict a person simply because they are in a close proximity to the marijuana. The defendant must be in actual possession of the marijuana or there must be some sort of affirmative link to the marijuana.
The following illustration is a hypothetical that is a typical affirmative link possession of marijuana case. Person X, person B, and person Y are traveling together in a car. An Austin police officer pulls the car over, becomes suspicious and asks for consent to search the vehicle. For purposes of our hypothetical the Austin police officer obtains consent to search the vehicle. While searching the vehicle the Austin police officer finds an open gym bag in the trunk containing a bag of marijuana in plain view. The Austin Police officer separates the 3 occupants of the vehicle and determines through questioning of the occupants that the gym bag belongs to person Y. While the marijuana was not in person Y’s actual possession the marijuana was in his gym bag located in the trunk. The Austin police officer now believes he has an affirmative link between the marijuana and person Y. Person Y is then arrested for possession of marijuana. When dealing with affirmative link possession or delivery of marijuana cases every fact or piece of evidence is going to be very important.
Additional evidence in our hypothetical could be: 1. Did person Y admit that the marijuana belonged to him; 2. Was the Austin police officer able to collect any additional evidence linking person Y to the marijuana; 3. Was person Y’s finger prints on the bag of marijuana, or did the Austin police officer attempt to collect finger prints from the bag of marijuana?
Challenging the affirmative link between the marijuana and the defendant is an important aspect of any case where the defendant is not in actual control of the marijuana!
Austin Marijuana Lawyer
Clifford Swayze
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

 

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