Drug Crimes

Droning Under the Influence of Alcohol?

Per news reports,

DRUNK DRIVING HAS been a social taboo for decades, but New Jersey in the US has now added drunk droning to the statute books: outlawing the flying of unmanned aircraft after one too many drinks.

The law makes it an offense to operate a drone under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug or with a blood alcohol concentration of 0.08% or more.

This got me thinking: could someone be prosecuted for droning while drunk in Alabama? I mean in Alabama, you certainly can be charged with DUI in a car or boat. You can even be charged for DUI while riding a horse. And I have actually defended someone charged with driving a lawn mower under the influence of alcohol.

And I have been at parties or at the lake where a certain amount of imbibing was occurring and then someone broke out their new toy drone. (Dilly-dilly!)

First, there is no special droning-under-the-influence statute in Alabama as there is in New Jersey.

Second, droning is not covered by the standard DUI statute (32-5A-191).

A person shall not drive or be in actual physical control of any vehicle while (1) There is 0.08 percent or more by weight of alcohol in his or her blood; (2) Under the influence of alcohol; (3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving; (4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or (5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.

Because a drone is not a “vehicle” under Alabama’s DUI statute:

Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or electric personal assistive mobility devices; provided, that for the purposes of this title, a bicycle or a ridden animal shall be deemed a vehicle, except those provisions of this title, which by their very nature can have no application.

However, I could see a prosecution in the right set of circumstances for reckless endangerment in Alabama (§ 13A-6-24):

A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

Most critically though, operating a drone while under the influence is, however, a federal offense.  A person manipulating the flight controls of a small unmanned aircraft (“weighing less than 55 pounds on takeoff) must comply with certain federal regulations. 14 CFR 107.27  On of those regulations prohibits operating the small unmanned aircraft (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person’s faculties in any way contrary to safety; or (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen.

Additionally, the FAA regulations separately define a “model aircraft” as “an unmanned aircraft” that is: (i) Capable of sustained flight in the atmosphere; (ii) Flown within visual line of sight of the person operating the aircraft; and (iii) Flown for hobby or recreational purposes. Because it defines a model aircraft as an unmanned aircraft, I think the regulations would apply. Even if not, the model aircraft rules also separately indirectly prescribe operating a model unmanned aircraft while under the influence of alcohol or drugs.

 

All this being said: I do believe that you can be charged, by federal offense and possibly by Alabama state law, for droning while under the influence of of drugs or alcohol. (And note: DUI under the federal regs is .04 BAC vs. .08 BAC for driving a car.)

There are other ways to commit crimes with a drone. For instance, its against the law to interfere with airliners. Was A Frontier Airlines Jet Almost Hit By A Drone Over Las Vegas?

It is also against the law with use of a drone though. “A person may not hunt, pursue, harass, wound, kill, or otherwise harm any wild waterfowl or other birds or animals by any means whatever during the time the person is on any kind of aircraft.”  Code of Ala. § 23-1-387

Former Crimson Tide LB Reuben Foster Arrested for Marijuana. What does Alabama law say?

Two high-profile misdemeanor marijuana cases have put the new, progressive District Attorney in Tuscaloosa County in the spotlight.

Last, week WBC heavyweight champion Deontay Wilder was sentenced in a marijuana case arising in Tuscaloosa.

Now we learn that former Crimson Tide standout and current 49ers rookie linebacker Reuben Foster has been arrested in Tuscaloosa for Possession of Marijuana in the Second Degree.  Per Al.com,

A former Alabama star linebacker was arrested in Tuscaloosa on Friday.

Reuben Foster, who just finished his rookie season with the San Francisco 49ers, was arrested and charged with second-degree possession of marijuana, according to the Tuscaloosa County Sheriff’s Office arrest database.

Bond was set at $2,500 for Foster, who was a first-team All-American for the Crimson Tide in 2016 and also won the Butkus Award.

First, we do not know the specific facts of this arrest, but remember the difference between constructive possession vs. actual possession. (Wilder’s case involved marijuana which belonged to someone else but was found in the vehicle in which he was driving.)

In Alabama, there are three basic charges for possession of marijuana. Foster has been charged with the lowest level offense. Unlike other states which have a quantity threshold between misdemeanor and felony marijuana cases, Alabama has a mere purpose distinction; the purpose is derived from the circumstances. Foster has been charged with violation of 13A-12-214, Possession of Marijuana in Second Degree, which reads:

A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only.

“For personal use” is usually charged in cases where there is a joint found or maybe a single baggie containing marijuana. The range of sentence is up to 12 months in jail and/or up to a $6000 fine plus court costs. Normally, a first time POM2 case will lead to a 60-90 days sentence, suspended, placed on probation, and a few hundred dollars in fines. (Wilder received a 30-day suspended sentence and two years of probation and 60 hours of community service.) Often drug education and screening is mandated.

Compare and contrast that with Possession of Marijuana in the First Degree, 13A-12-213(1):

A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized: 1) He or she possesses marihuana for other than personal use

These cases usually include a larger quantity of marijuana. The way marijuana is bagged can also evidence an intent for use other than personal use; marijuana in multiple baggies may evidence an intent to distribute. This is a class C felony.

However, although not seemingly at play in this case, a small amount can translate into a felony, too. 13A-12-213(2) states:

A person commits the crime of unlawful possession of marihuana in the first degree if (2) He or she possesses marihuana for his or her personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his or her personal use only.

For instance, if Deontay Wilder is convicted later for another small amount of marijuana for a personal use, the charge would be a Class D Felony instead of a misdemeanor.

All that being said, you can be charged with trafficking regardless of purposes if a person possessed more that 2.2 pounds of marijuana and/or its oils and refuse. (And this includes seeds, roots, plant stalks, etc.)

Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin including the completely defoliated mature stalks of the plant, fiber produced from the stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination is guilty of a felony, which felony shall be known as “trafficking in cannabis.” Nothing in this subdivision shall apply to samples of tetrahydrocannabinols including, but not limited to, all synthetic or naturally produced samples of tetrahydrocannabinols which contain more than 15 percent by weight of tetrahydrocannabinols and which do not contain plant material exhibiting the external morphological features of the plant cannabis

Alabama does have a very narrow medical marijuana statute:

In a prosecution for the unlawful possession of marijuana under the laws of this state, it is an affirmative and complete defense to the prosecution that the defendant possessed cannabidiol (CBD) because he or she is the parent or caretaker of an individual who has a debilitating epileptic condition and who has a prescription for the possession and use of cannabidiol (CBD) as authorized by the UAB Department, and where the parent or caretaker’s possession of the CBD is on behalf of and otherwise for the prescribed person’s use only.

On a related note,

An Alabama lawmaker believes it is time to decriminalize some of the state’s drug possession laws, especially those dealing with marijuana.

Birmingham Representative Patricia Todd said there are people in courts and jail on drug convictions.

She said some of those folks were busted for a small amount of marijuana and she doesn’t believe that is fair. “This would be if you had an ounce or less you would just get a citation like a speeding ticket,” Rep. Todd said.

Todd plans to push a bill in this legislative session to scale back the penalties for marijuana possession. “The court system is so clogged with a lot of these possession charges. So we need to clear some of that out of the court system. Let’s follow the movement across America,” Todd said. . .

Todd realizes her bill faces an uphill fight in the Alabama legislature but she believes its time has come considering the mood of the country.

Thirty states and the District of Columbia currently have laws broadly legalizing marijuana in some form.

Several states including Oklahoma and Utah are set to possibly legalize it in 2018.

 

 

 

Lessons in “Constructive Possession”: Less Than 1 Ounce Of Marijuana Leads To Arrests Of 70 Georgia Partygoers









How can 70 people be charged with possession of a single ounce of marijuana? Well, it happened over in Georgia.

At least 63 people were arrested over the weekend on suspicion of possessing less than an ounce of marijuana after police were unable to identify the actual owner of the drug stash found at a house party in Cartersville, Georgia, over the weekend. . .

Officers also found less than an ounce of marijuana, reported the Cartersville Daily-Tribune. When no one admitted to owning the weed, everyone still at the party was arrested.

“All the subjects at the residence were placed under arrest for the possession of the suspected marijuana which was within everyone’s reach or control,” said the Bartow Cartersville Drug Task Force in a news release.

I will say this may be the most extreme case of “constructive possession” I have ever seen.

In a fair majority of drug possession-type prosecutions, the accused Defendant did not have drugs in his pockets or in his hands (or in his mouth as have several of my clients). In the initial consultation, I always have to discuss what is called “constructive possession.” The Supreme Court of Alabama has held that “[i]n order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala.290, 293 So.2d 314 (1974).

Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. This is fancy legal language which means that the law will presume you possessed something even if its not in your pocket.

First, the courts require that “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.1983)  However, “[t]his knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises” Meeker v. State, 801 So.2d 850, 853 (AlaCr.App.2001) Often, the prosecution’s evidence will included facts that multiple persons were in a residence, car, or place other than the accused Defendant. Therefore, that accused Defendant is not in “exclusive possession” or control of the residence, vehicle, or place. Sometimes, the prosecution’s entire theory will revolve around joint occupancy and possession of the house or car.

In such situations, when the accused is not in exclusive possession of the premises, the requisite knowledge for constructive possession may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986) The courts require some evidence that connects the defendant with the contraband. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984) In Posey v. State, 736 So.2d at 656,658-659, the Court affirmed “a non-exclusive list of circumstances that may establish such a connection between a defendant and the contraband found in a non-exclusive possession situation. The Court stated:

The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the Defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the Defendant is confronted with the possibility that an illicit drug will be found evidence that debris of the contraband was found on the Defendant’s person or with his personal effects; (6) evidence which shows that the Defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.

Additionally, when a person is not in exclusive possession of the residence or vehicle, “the circumstantial evidence had to establish a connection between [the defendant] and the marijuana that excluded every reasonable hypothesis except guilt.Goodloe v. State, 783 So.2d 931,935 (Ala.Cr.App.2000)

A good example of this type of case is Meeker v. State. In Meeker, the Defendant was convicted based upon the evidence that showed he had visited the residence on a couple of occasions and was possibly staying in a third bedroom. The evidence showed that clothing was found in this room, Meeker’s driver’s licence, a mattress and marijuana were found in the third bedroom. This Court overturned Meeker’s conviction, finding that since he was not present at the time of the raid and since “there was no evidence indicating when or how the license came to be in the room, whether seized marijuana was in the room at the time the license was placed there, or whether [Meeker] had any knowledge that drugs were present in the residence on the . . . the night the residence was searched.” Meeker at 854.

I question in this case whether there is even probable cause to arrest a majority of the 63. I highly doubt many convictions will arise from this slew of arrests. How do the police even suggest knowledge of the marijuana, much less actual dominion over the drugs.

I expect there may be some lawsuits against the police department in this instance.  What if some of those arrested can’t make bond? As the video shows, many were still being detained nearly 18 hours later.

Eighth Amendment Challenge to Drug Free Zones

Supreme Court of Tennessee Blog posts:

A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.” The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.

Alabama has a similar statutes which may be subject to similar constitutional attack because it suffers the exact same defects.

In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.

The Alabama statute imposes a mandatory (not eligible for probation) if the sale occurred within 3 miles of a public school regardless whether a child was involved in the sale. (There is a similar statute for sales on or near public housing.) In fact:

Alabama has the widest drug-free zones in the country, extending three miles from schools, colleges, and housing complexes. Drug offenses inside those areas carry a five-year enhanced sentence. In practice, this means that 38,267 square miles of Alabama—73 percent of the state—are within a -drug-free zone. Cities with a higher concentration of schools and public housing projects are worse. Ninety-four percent of Montgomery falls within a drug-free zone.

Constructive vs Actual Possession of Drugs

In a fair majority of drug possession-type prosecutions, the accused Defendant did not have drugs in his pockets or in his hands (or in his mouth as have several of my clients) In the initial consultation, I always have to discuss what is called “constructive possession.” The Supreme Court of Alabama has held that “[i]n order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala.290, 293 So.2d 314 (1974).

Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. This is fancy legal language which means that the law will presume you possessed something even if its not in your pocket.

First, the courts require that “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.1983)  However, “[t]his knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises” Meeker v. State, 801 So.2d 850, 853 (AlaCr.App.2001) Often, the prosecution’s evidence will included facts that multiple persons were in a residence, car, or place other than the accused Defendant. Therefore, that accused Defendant is not in “exclusive possession” or control of the residence, vehicle, or place. Sometimes, the prosecution’s entire theory will revolve around joint occupancy and possession of the house or car.

In such situations, when the accused is not in exclusive possession of the premises, the requisite knowledge for constructive possession may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986) The courts require some evidence that connects the defendant with the contraband. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984) In Posey v. State, 736 So.2d at 656,658-659, the Court affirmed “a non-exclusive list of circumstances that may establish such a connection between a defendant and the contraband found in a non-exclusive possession situation. The Court stated:

The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the Defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the Defendant is confronted with the possibility that an illicit drug will be found evidence that debris of the contraband was found on the Defendant’s person or with his personal effects; (6) evidence which shows that the Defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.

Additionally, when a person is not in exclusive possession of the residence or vehicle, “the circumstantial evidence had to establish a connection between [the defendant] and the marijuana that excluded every reasonable hypothesis except guilt.” Goodloe v. State, 783 So.2d 931,935 (Ala.Cr.App.2000)

A good example of this type of case is Meeker v. State. In Meeker, the Defendant was convicted based upon the evidence that showed he had visited the residence on a couple of occasions and was possibly staying in a third bedroom. The evidence showed that clothing was found in this room, Meeker’s driver’s licence, a mattress and marijuana were found in the third bedroom. This Court overturned Meeker’s conviction, finding that since he was not present at the time of the raid and since “there was no evidence indicating when or how the license came to be in the room, whether seized marijuana was in the room at the time the license was placed there, or whether [Meeker] had any knowledge that drugs were present in the residence on the . . . the night the residence was searched.” Meeker at 854.

 

Chocolate chip cookies might get you arrested for drug possession

Radley Balko has a running list of all the materials that field tests have mistaken for drugs:

Sage, Chocolate chip cookies, Motor oil, Spearmint, Dr. Bronner’s Magic Soap, Tortilla dough, Deodorant, Billiards chalk, Patchouli, Flour, Eucalyptus, Breath mints, Loose-leaf tea, Jolly Ranchers

Mom reflects on the 1st year of her 8 year prison sentence

As reported in the Tulsa World News,

One year ago, on the week of Christmas, the first-time offender was checked into the Eddie Warrior women’s prison – the first holiday away from her four young children.

“I cried and cried just thinking of my kids opening presents on Christmas and I wasn’t there,” she said. “This year, it’s going to be any other day. I try not to keep up with days in here.”

At her mother’s home in Kingfisher, there is a somber tone among her children – ages 2, 4, 5 and 10. . .

“The first eight months were a blur,” Spottedcrow said. “I just cried a lot. It’s like I woke up a couple of months ago.”

Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.

“You have to try and keep your mind busy,” she said. “It’s easy to get sad, depressed and stuck in your own head in here.”

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said.

“I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want,” Spottedcrow said. “I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary).”

But it’s her kids taking up most of her thoughts.

“I was there every day taking of care of them before this,” she said. “I did everything from going to football games and PTA.”

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on a waiting list to begin higher education and Career Tech classes.

“The life I was living before, that’s over,” Spottedcrow said. “I’m not playing with my life anymore. I would never chance this again for my children.”

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.

“I got myself in this situation, and I’m not saying I shouldn’t be punished,” she said. “But I think this is a little excessive, especially looking at other cases from my county. And I’m sleeping next to people who have killed people, and they have less time than me. There are days I really can’t believe I’m in prison.”

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.

“I have a big heart,” she said. “When I see someone in need, like for food, I want to help if I can. But you can get a misconduct in here for the littlest things.”

In her classes, she has reflected on her life and changes that need to be made, including in her love life.

When she entered prison, she was still in a relationship with her common-law husband, who is the father of three of her children. Now, that relationship is essentially over, and he has not been supporting or caring for the children either, she said.

“The reality is – out of sight, out of mind,” she said. “We were kids having kids. I’m taking it day by day right now. But when I get out of here, I’m only worrying about me and my kids. They are my first concern.”

And there may be some concerns to work through with her children.

At the Kingfisher home, it’s been a tough existence and one that is relying on the generosity and help of others.

Spottedcrow’s oldest child has been acting out since her incarceration.

“He’s in trouble for stealing, and his mouth is real swift and sharp,” Starr said. “He blames me a lot for what happened to his mother. The girls want to cry a lot. They don’t like to listen to me, saying, ‘You’re not my mother.’ We struggle every day.”

Financially, the situation has been devastating at times.

Starr earns $8 an hour at a truck stop and doesn’t have a driver’s license because of a conviction. Spottedcrow’s oldest child pitches in with a few dollars from odd jobs he does at their church.

Starr’s utility and food costs have shot up since she took in the four children, and she owes $8,000 in court fines. As part of her sentence, she must take two drug tests a year, costing $150 each.

“But there are other little things, like I couldn’t buy their school pictures this year,” Starr said. “At school, kids can buy popcorn for $1 on Fridays, and sometimes mine are the only ones not getting popcorn.”