Senators are expected to approve a bill expanding bank services to marijuana dealers, but the measure faces an uncertain future in the Republican-controlled House.
Both Republicans and Democrats on the committee support the Safe Banking Act and expressed confidence that it would have enough support to pass the Senate when it comes up for a full vote, a step Majority Leader Chuck Schumer (D-NY) vowed to take as soon as this fall.
“We’ve got enough votes to get it passed,” Sen. Steve Daines (R-MT) said, adding in an interview that he is “cautiously optimistic we may have something before the end of the month.”
The fate of the bill in the House is less certain, despite a strong showing of support from Republicans in leadership roles, including Speaker Kevin McCarthy of California, who voted for the bill in previous years. McCarthy has not said whether he would prioritize the effort this time around given the fragile majority that has complicated his tenure as speaker.
What Happens if Marijuana is Legalized Federally?
We normally don’t address such technical questions in this blog. But this one goes to the core of our government, so we think it’s worth addressing.
Most countries are divided into provinces or similar sections. The United States is divided into, wait for it, states. There’s a big difference.
In most countries, the central government makes all decisions, and the provinces go along with those decisions, like it or not. The United States is different. The central government in Washington, D.C. makes big decisions that affect everyone, like foreign policy and immigration policy. The states decide matters that only affect people in that state, like personal injury laws and divorce laws.
Comparative fault, a common insurance company defense in car crash claims, is a good example. If Driver A was speeding and Driver B was drunk, jurors might conclude they were each partially responsible for a wreck.
Georgia is a modified comparative fault state. Victims are entitled to compensation if they were less than 50 percent responsible for a crash or other injury. Neighboring Alabama, in contrast, is a pure contributory negligence state. Even if the tortfeasor (negligent driver) was 99 percent responsible for the injury, the victim receives nothing.
Back to federal and state governments. The Constitution’s Supremacy Clause states that the Constitution is the law of the land. But the Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Constitution says nothing about drug laws. The first federal drug law appeared in 1909. Before then, consumers could buy cocaine in the Sears Roebuck catalog. Since the central government did nothing for so long, states were free to make their own drug laws.
Things get a little complicated if someone possesses an illegal substance at an office building, national park, military base, or other federal facility. Federal law, not state law, applies in these situations. If Congressman Jones rents a private office building, does that building become a federal facility? If so, where’s the property line? In the parking lot, at the front door, or somewhere else?
Georgia Marijuana Laws
State personal injury and divorce laws vary significantly. State marijuana possession laws vary significantly as well. Colorado and Washington legalized recreational marijuana in 2012. Most blue states followed suit. Most red and purple states liberalized medical marijuana laws or made similar changes. Georgia didn’t budge.
Possession of less than one ounce, including a mostly smoked joint, is a Class A misdemeanor (one year in jail and a $1,000 fine). Possession of drug paraphernalia, like a roach clip, is also a Class A misdemeanor, even if the defendant didn’t have any grass. Intent to distribute marijuana, even one ounce or less, is a felony (10 years in prison and a $5,000 fine).
Changed federal law wouldn’t change these laws. Once again, however, it’s complicated. Hemp, which has the same physical properties as marijuana, is legal under federal law. So, unless the state can prove the defendant possessed marijuana as opposed to hemp, a Marietta criminal defense lawyer can usually get the charges thrown out of court. More on that below.
The Three Ps
To most people, “possession” and “proximity” are basically the same thing. Criminal court is different. To establish legal possession of a prohibited substance, like marijuana, the state must do the following three things.
Produce the Substance in Court
Physical evidence, like marijuana, is only admissible if officers had a valid search warrant or a search warrant exception applied.
Officers rarely have warrants in POM (possession of marijuana) matters. Usually, officers find drugs during traffic stops or while responding to disturbance calls.
Speaking of traffic stops, for many years, officers have used the “I smelled marijuana” line to justify searches. Since hemp is legal and has the same physical properties as marijuana, as mentioned above, that excuse might no longer hold up in court. The officer might have smelled a legal substance.
Search warrant exceptions haven’t changed much since the 1960s. The major ones include:
- Consent: In criminal law, consent is a voluntary and affirmative act. Bullied or coerced consent isn’t voluntary. Opening the door for an officer isn’t affirmative. Walking through a metal detector or putting a bag on a conveyer belt is consent to search.
- Plain View: This exception is based on those “If you see something, say something” airport and subway signs. If officers see contraband, like marijuana, they don’t have to ignore it. They can do something about it.
- Pat Down: These controversial searches are technically legal under Terry vs. Ohio (1968), if officers reasonably suspect the defendant may be involved in criminal activity. Reasonable suspicion is basically an evidence-based hunch.
Officers often obtain warrants in distribution and other such matters. These warrants must be based on probable cause affidavits.
Prove it Was Illegal
“Field tests” are usually sensory tests. It looks like marijuana and smells like marijuana, so it must be marijuana. However, as mentioned, marijuana and hemp look and smell alike.
Prosecutors must order an expensive THC content test to determine the difference between these two substances. Furthermore, a Marietta criminal defense lawyer can challenge the process or result.
Proximity, which is relatively easy to prove, is one element of legal possession. The other two, which are much harder to prove, are knowledge and control.
Assume Bill is at a party with people he hardly knows. Police respond to a noise complaint, the house’s owner gives them consent to search, and they find a marijuana baggie under Bill’s seat.
Under those facts, proximity is a slam dunk. The state could probably prove control as well. But prosecutors would be hard-pressed to establish knowledge. People very rarely look under their sets at parties.
Don’t let Georgia’s strict marijuana possession laws scare you. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.