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Possession of marijuana and paraphanelia

Shelton, WA |

My son was stopped for speeding and the officer after writing the ticket came back to the car and said he smelled pot and kept insisting he open the glove box. Then he said either you open it or I will get the dogs. Is that legal? Also he has an appointment tomorrow to get his medical marijuana card which he should have done along time ago, will that help him when he goes to court? This is not his first offense. The first was I think in 2002,and it was dropped as an illegal search,the 2nd in 2005, and he has had a neg driving, which was from taking his prescription meds and driving. That was also in 2005.

Attorney Answers 2

Posted

The officer can threaten to do anything he is legally allowed to do. He would have probably been within his rights to detain your son have a drug dog come out and sniff around. If the dog "hit" on the car he could tow the car and apply for a warrant to search the vehicle.

There may be other issues such as: if the officer ran his criminal record then decided to ask to search based on prior offenses, instead of odor or other PC, or if your son invoked his right to counsel or right to remain silent. You need to talk to an attorney about all of the facts to determine if there is anything illegal that occurred.

The medical marijuana card may or may not be of any help negotiating with the prosecutor, or at sentencing with the judge. It does not give him a defense to the charge. The affirmative defense is only available if you have a current prescription and provide the officer with the prescription at the time.

To be convicted of Negligent Driving First Degree a person must be taking illegal drugs. If he had a valid prescription at the time, he had probably had a DUI that was plead down to Neg 1. As such he should already be well aware that he can be charged for DUI if driving under the influence of marijuana, even if he has a medical marijuana card.

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2 comments

Asker

Posted

No it was not a DUI that was plead down. I went to court with him, he had a court appointed atty who said plead guilty and the most you will get is one day in jail and a small fine. That did not happen. No charges were plead down on that one. And is was his prescription, but they said he can't drive on his prescription. That time there was no marijuana in the car.

Scott Weymouth Lawrence

Scott Weymouth Lawrence

Posted

I wasn't there so I have no idea what happened. I can tell you that the crime of Negligent Driving 1st Degree involves driving in a negligent manner while exhibiting the effects of having consumed alcohol or ILLEGAL drugs. A validly prescribed drug would not be enough for Neg 1. Taking prescription drugs to the level where your ability to drive is impaired is sufficient for a DUI charge. Thus, there must have been some type of negotiation that occurred to arrange for a lesser charge (whether or not you were privy to them) or a concern by the attorney that DUI charges would be filed if he did not plead to the lesser charge. I hope no attorney would let someone plead guilty to Neg 1 if the charge involved only LEGAL drugs and there was not otherwise sufficient evidence for DUI. That said, whether or not the Neg 1 was plead down is completely irrelevant to his current situation and does not change my comments above in any way. He needs to get a good lawyer. There may be issues to argue in his defense. However, the facts you provided above do not create any defenses. He will need an experienced criminal defense attorney to help him investigate and argue all of the potential issues so that he gets an adequate defense..

Posted

I agree with Mr. Lawrence that you should seek legal advice on this. Essentially, the officer was asking for a "consent" search but gained that consent through threats. The "inevitable discovery" doctrine will be in play here. In Washington, the Hammond opinion states that the odor of marijuana from the car is probable cause to arrest the driver for possession. There are many layers of complexity to this issue.

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