But officer, pot is legal in
my State….
This election day, two
states are reported to have legalized recreational use of marijuana – Colorado and Washington. Oregon voters were also presented with the
issue on their ballots but voted against recreational legalization. In addition to the legalized recreational
use, according to the National Organization for the Reform of Marijuana Laws or
NORML, another 18 states have authorized
marijuana use for medicinal purposes.
Iowa is not one of them. Marijuana cultivation, possession, and distribution is still illegal
under Federal law.
The question that has
started to rise and will most likely arise with greater frequency is, what
happens if an individual from a state where marijuana is legal for recreational
or medicinal use is caught in possession of pot in a state where it is
illegal. The first answer to the
question is relatively straight forward – that person will most certainly be
arrested and prosecuted for the offense.
The State of Iowa still has some of the toughest marijuana laws in the nation.
After the individual is
arrested and charged however, there are two likely defenses, in addition to the
traditional defenses such as illegal search and seizure, which could be attempted.
First, one might be tempted
to argue that one state must give another state’s laws full faith and credit
under the Federal Constitution.
Unfortunately that argument does not ordinarily apply to criminal statutes. For example, just because it is legal for a
21 year old to have sex with a 14 year old in one state, does not make it legal
for that same activity to occur in a state where the age of consent is 16. That might be an extreme example but think about it; just
because you can drive 70 mph on Interstate 35 or Interstate 80 in your state does not mean that
you can drive 70 in a state where the posted speed limit is 65 on the same interstate. The same argument will be made regarding
marijuana possession. If it is illegal
in the state you are in at the time you possess it, chances are you can still
be found guilty. Ones efforts are
probably better focused on other more legitimate defenses.
The second and more promising
potential argument, at least in the State of Iowa, relates to the possession of
medicinal marijuana. Iowa Code §124.401(5) prohibits the possession of controlled substances, including
marijuana. However, it specifically
states: “It is unlawful for any person knowingly or intentionally to possess a
controlled substance unless such substance was obtained directly from, or
pursuant to, a valid prescription or order of a practitioner…. Consequently, an arguable defense to the charge is built right into the statute IF the person
possessed the pot pursuant to a valid prescription or order of a practitioner.
This exception would NOT
apply to felony possession offenses such as Possession with Intent to Deliver,
or Manufacturing. NOTE: Sharing pot qualifies as “delivery” in the State of
Iowa! Furthermore, if the
prescription has expired or the amount possessed exceeds the amount authorized
under that prescription, this defense will not have a chance.
Obviously, it should go
without saying that the best defense to any crime is not to place oneself in a
position where they are at risk of getting arrested and charged in the first
place. That is never a pleasant experience. That being said however, some of
us are willing to take greater risks than others. If you happen to be a risk-taker driving
through the State of Iowa, understand that there is a good chance of having to
endure the unpleasant experience of Iowa’s drug interdiction efforts which are certain to increase with other states
legalizing recreational use of marijuana. If you find
yourself in such a position, you will wish that you had first educated
yourself on your constitutional rights that apply to a traffic stop/interdiction situation. Effectively exercising your rights can make
all of the difference. Remember GRL Law’s
tag line: Shut up; Wise up; Lawyer up.
1.
Shut up –
anything and everything you say can and will be used against you. If you admit to the officer that you only
intended on “sharing” your pot with your friends – you just admitted to a
Felony in the State of Iowa. Shut up!
2.
Wise up – You do
not have to consent to a search of your person or vehicle. If you or your friends may be in possession
of something illegal, exercise that right.
The more obstacles a law enforcement officer must jump over, the greater
chance there is of him making a mistake on your case.
3.
Lawyer up – Don’t
go at it alone. The consequences in the
State of Iowa are still severe and a conviction remains on your record in this
state for life.
Don’t let a fun
recreational trip cross country turn into an eye-opening encounter with another
state’s criminal justice system. At the
very least educate yourself before you leave home.
Know your rights; Exercise
your rights; Preserve your freedom.
