When Bill Sherman (this is not his real name—due to the sensitivity of his case, he asked us to use an alias) came home to a dozen narcotics agents in his apartment one night, he knew he would need a pot lawyer. The cops had forced entry without a warrant, having figured out that Sherman was receiving out-of-state cannabis-oil shipments, which he used to treat his chronic obstructive pulmonary disease. Living in Mississippi, where legal weed is only the stuff of fairy tales in far-off lands on the West Coast, Sherman had been risking his freedom to self-medicate with cannabis.
“They said they knew I had the oil and they wanted it, so I said, ‘Sure, where’s your warrant?’” Sherman explains. “They said to me, ‘We don’t have a warrant, and if you don’t sign this piece of paper, we’ll take your son away.’” Sherman’s young son is on the autism spectrum and has an immune deficiency; no one else knows how to properly care for him.
“They said, ‘We’re taking your son, putting you in jail, and by the time you get out of jail, you’ll have to fight the courts to get custody of your son back,’” Sherman says. “So I had no choice but to sign the piece of paper saying they could search my property.” Sherman gave the cops all his cannabis oil, thankful to keep his son. “But without my knowledge, they held me in contempt of court for court dates I didn’t know I had,” he says. “I eventually was arrested by a cop who was looking for me.” He was facing four to 16 years behind bars.
Stories like this are far more commonplace than you might think. Sherman needed a lawyer with experience in cannabis law, but he had no idea where to look. “I didn’t know who to get; no lawyer specializes in that kind of thing where I was from in Mississippi,” he says. The lawyer Sherman eventually found was a friend of his mother.
Finding the Right Lawyer
Ideally, if you’re busted for weed, you’d hire a marijuana lawyer—someone who specializes or has extensive experience in this area of the law. You’d want to be sure that she not only is up to date with the most recent changes in marijuana policy on local, state and federal levels, but is also familiar with how various judges and courts tend to treat marijuana cases.
First and foremost, regardless of your lawyer’s niche, you need to have confidence in him. “The most important thing is that you believe you can trust your lawyer and speak openly to them even about difficult things that are really personal,” explains New York attorney Joseph Bondy, who has practiced federal criminal defense, with a specialty in marijuana law, for more than 23 years. “Get someone who listens, someone who cares about you,” he says. If a lawyer and client establish that relationship and bond at the forefront, the rest becomes easier, Bondy says.
Starting with a strong foundation between lawyer and client, the lawyer can dig into the case with care, researching relevant statutes to use in court.
But that personal element is vital. “At the end of it all, your lawyer bridges you to the court or jury, humanizes you in a way that persuades people to give you the benefit of the doubt or not to hurt you or send you to prison,” Bondy says. “For me, it was always my ability to have that emotionally tight relationship with somebody so I could be their bridge that allowed me to succeed.”
Research Your Lawyer
In order to fully trust your lawyer, you’ll want to know as much about him as possible. It should go without saying: Google terms like “marijuana lawyer,” “marijuana defense lawyer,” “marijuana criminal defense lawyer,” “weed lawyer [insert your city],” etc. Most likely, among the hits will be a link to NORML’s website. NORML—the National Organization for the Reform of Marijuana Laws—has a list of lawyers who handle pot cases and are members of the nonprofit’s Legal Committee. This is a sure way to vet whether your attorney has experience in cannabis law. Visit lawyers.norml.org and click on your state to find a lawyer in your area. If NORML’s list doesn’t include anyone in your city, call another lawyer in the state for a referral.
Look for all the negative reviews you can find in order to vet your lawyer, says Bondy, while keeping in mind this is all just fodder for a first meeting. “I tell all my clients that I don’t want you to hire me unless I’m your first choice,” he says. “If you find some other lawyer who’s better for you, I want you to hire them.”
Look into your lawyer’s professional affiliations. Is he a member of the NORML Legal Committee? The American Civil Liberties Union (ACLU)? The National Association of Criminal Defense Lawyers (NACDL)? Has he received any bar association awards? Has he branded his law firm in association with cannabis (e.g., 1-800-420-LAWS)? And how long has he been practicing law?
If you’re in the cannabis industry, whether in a legal or unregulated market, ask your colleagues which lawyers they’ve used in times of trouble. And if you get busted out of state, be sure to find a lawyer close to the jurisdiction where you’ve been arrested.
Be sure to confirm with the local bar authority or local state licensing authority that the lawyer is indeed licensed and current, Bondy cautions. Confirm that the lawyer has no instances of malpractice, and if his record is indeed tainted, ask him what happened. Give him a chance to explain the instance, as he may have had a disagreement with a disgruntled client. Not every case turns out the way a client may want, but that doesn’t mean the lawyer is bad—even if the client, whose expectations may have been impractical, leaves a terrible Yelp review.
Lawyers Are Expensive—Do I Need One?
While federal law says marijuana is a Schedule I controlled substance, it only usually applies if you’re busted on federal land or moving weed between states—in which case, whether or not to get a pot lawyer shouldn’t even be a question. Otherwise, local law generally applies, and what constitutes a misdemeanor or felony changes from state to state and could also depend on your prior record.
Here’s an example of the one instance in which you probably don’t need a lawyer (note that this example will have slight variations in other jurisdictions): If you’re in a place like New York and get busted with a joint on the street, you’ll probably hesitate before putting money down on a retainer. As opposed to the old days where you’d get arrested and detained overnight, now you’ll probably only be charged with a desk-appearance ticket. Here’s where the term ACD (adjournment in contemplation of dismissal) comes in:
“Under New York’s penal law, if a person is caught for the first time burning marijuana in public or exposing it in public view, then they are eligible to have their case adjourned for a period of time, generally three to six months these days, at the end of which period, if they’ve behaved themselves and not gotten arrested again or committed new crimes, the case will be dismissed and the record sealed,” Bondy explains. “When people call me, I explain this to them. I tell them that’s what will happen to you with or without a lawyer. I say you can achieve this without me, but certainly you can retain me if you wish. And although you could retain me and have me come to court with you and pay a legal fee, by the time we get out the door, you’ll have been given an adjournment in contemplation of dismissal in less than an hour, and I don’t feel right telling people to pay me a legal fee without their understanding that this is a statutory right.”
However, if you’re not a US citizen, have a prior record or have a more complicated case than the example above, you’ll want to get a lawyer.
To understand what you could be charged with according to your locality, visit a site like NORML to research marijuana penalties for possession, sale and cultivation from state to state.
Can You Get Busted in a Legal-Pot State?
Absolutely. Whether you’re dealing in the black market, shipping weed out of state or driving with more than what your state’s adult-use or medical-marijuana law recognizes as a reasonable amount for a patient or adult consumer, you’re at risk of committing at least a misdemeanor.
“Know the law, know your rights,” as California marijuana criminal-defense lawyer Bruce Margolin often says. “Because each courthouse and prosecutor’s office around the state have their own ways that they proceed on cases and have their own status about how they want to resolve them, it’s important a lawyer have a lot of experience in that area so they can convince prosecutors to dismiss or reduce the charges by negotiation or plea bargaining.”
Especially in a state like California, where a patchwork of 482 jurisdictions each has its own marijuana regulations, it’s easy to violate civil code if you’re not careful. While criminal law is a bit more consistent, cops’ attitudes and priorities may change from region to region, posing a greater risk to your freedom where you might not expect it. In places like the Emerald Triangle, for instance, drivers can be subject to narcotics checkpoints, where police can simply search your car.
Busted on the Road
If you’re going to travel with cannabis across the country, make sure you know which attorney you’d call if you get caught. “You should always have a criminal-defense attorney lined up ahead of time,” says Oklahoma lawyer Jay Ramey, a member of the NORML Legal Committee. “Tell the cops you have nothing to say and need to talk to an attorney. If you don’t have anyone to call, you’ll look stupid.” But stay away from the “jack of all trades” attorneys, or those who have no experience in criminal law, Ramey cautions.
Police in states like Oklahoma, for instance, are very zealous in their enforcement of marijuana law, Ramey says. “I was doing a trial once, the prosecutor suggested that [my client] should have known better than to drive through Oklahoma with medical marijuana.” People with out-of-state license plates are most at risk, especially if you’re from a legal state. At least 10 percent of Ramey’s clients don’t even live in Oklahoma.
“First and foremost, it’s out-of-state taggers. Then one of the first things they look for is a male driving alone. And a rental car is another,” Ramey says. Other times, the trooper will just act on a hunch and pull someone over for a (real or made-up) traffic violation.
“Some medical patients seem to think, ‘Oh, I’m legal in California, they can’t do anything to me in Oklahoma,’” says Ramey. “Oh yes they can. They don’t care about your medical license. They don’t give one whit about your medical issues. They’ll prosecute you to the full extent of the law.”
What to Do When You Have a Run-In With the Cops
In most cases, the smell of weed alone is enough for a cop to search your car. (In legal states like California, for instance, it’s not, unless they have reason to believe you have more than the legal limit.) So, for starters, don’t hotbox the car. Don’t drive and consume at the same time. If a cop stops you, here are the three main talking points you should remember, according to Ramey:
1. I do not consent to any searches. (Pursuant to the Fourth Amendment to the United States Constitution.)
2. I am not answering any questions and I want to speak to an attorney. (Pursuant to the Fifth and Sixth Amendments to the United States Constitution.)
3. I do not agree to stay here with you for any reason. Are you detaining me or am I free to go? (Pursuant to the Fourth Amendment to the United States Constitution.) If you are free to go, then go! If you are being detained, see numbers 1 and 2.
Always be polite to law enforcement. If you’re smoking weed in the car, you’re subject to a ticket in places like California, or worse in nonlegal states. If you’re suspected of a marijuana DUI, you can still refuse to answer questions about when you last consumed or refuse to take a field sobriety test. If you’re arrested, however, they may require you to take a drug test. In some cases, if you refuse, you could lose your driver’s license and it may be seen as an admission of guilt.
How to Find a Licensing Attorney
If you’re interested in starting a cannabis business and need help following the local laws and getting licensed, you’ll likely need to find a good attorney. First determine what kind of business you want to open and where you want to open it, advises Los Angeles cannabis-business attorney Ariel Clark. Because you’ll need to navigate both state and local law, you’ll need an attorney who’s familiar with the local regulations in the jurisdiction where you want to operate your business.
“There are attorneys who tend to focus more on one segment of the [cannabis] vertical, and certainly, for example, we have a lot of clients who are growers, and so we have a lawyer who works for us who specializes in water law and all the complexities that relate to water and cannabis cultivation in California,” Clark explains.
When it comes to cannabis business, you’ll need an attorney who is familiar not only with cannabis regulations, but also with property law, tax law and other legal fields that cannabis touches. You may also, nonetheless, want a criminal-defense lawyer lined up. While violating code is often a civil offense, once you’re out of compliance, you may also have to defend yourself in criminal court for issues like possession for sale without a license. Moreover, you may also want the added protection because any marijuana business is still illegal in the eyes of the federal government.
In some cases, you’ll want to put together a team of attorneys: a criminal-defense lawyer, a cannabis-business lawyer, a real-estate lawyer and so forth. Working through referrals often helps, once you identify your main cannabis-business lawyer. Scope out trade associations like the Southern California Coalition or the National Cannabis Industry Association and find someone who’s active in the space and current on the ever-changing marijuana regulations.
Stay Up-to-Date With Federal Law
At the end of the day, marijuana is still illegal on the federal level. While it may be legal or decriminalized where you live, thousands of people are still serving life sentences for marijuana crimes alone. Activist Deedee Kirkwood writes letters to these “marijuana lifers” and fund-raises for their attorneys’ fees and living expenses behind bars (sneakers, toothpaste, etc.). Learn more at potfairy.com.
With or without a lawyer, the best form of protection you have is sheer knowledge of the law. If you know the law, then you know where your rights begin and where they end.
This feature was published in the April 2018 issue of High Times magazine.