UPDATE: The petition failed to receive enough signatures to be placed on the Nov. 4, 2014 ballot.
For the last several months, organizers and volunteers from the group Oklahomans for Health have been pounding the pavement around the state of Oklahoma trying to get signatures for a November ballot initiative to legalize the use of marijuana for medicinal purposes. The deadline for the petition is Friday, Aug. 15 and according to a Fox 25 report, as of Aug. 4 group has acquired 130,000 of the 156,000 signatures required to get the initiative on the ballot.
If Oklahoma eventually legalizes the use of medical or commercial marijuana, how many people previously arrested for weed crimes will be let out of prison?
The answer, more than likely, will be zero.
Sad to say, if you are in prison for committing a crime, then you’ll stay in prison whether or not the crime you’re convicted of is overturned. The American criminal justice system says if you were arrested for possession of marijuana when it was illegal, then you committed a crime and must serve your time.
Whether or not the old law was overturned is immaterial. The fact is, at the time it was illegal.
Doesn’t seem fair, does it?
Let’s take a look at Colorado’s laws, for instance. Marijuana is “legal” in Colorado now, but, according to the attorney general, that means prosecutors should “not interfere with marijuana commerce as long as it adheres to state law and meets certain other conditions.”
That doesn’t help the 210,000 incarcerated in Colorado for marijuana crimes over the past 25 years. Although the state legalized the commercial sale and use of marijuana, those people arrested before the law went into effect have no recourse.
This has raised some thorny legal issues in that state.
The United States is one of a handful of countries that does not engage in what is called “retroactive ameliorative relief” in sentencing procedures. This means that when a law is passed to eliminate the punishment for a crime, then those serving time for that crime don’t receive a pardon.
Congratulations, America. We’ve joined extreme regimes like Oman, South Sudan, Myanmar and Pakistan in our harsh sentences.
So what can we do to change this if Oklahoma decides to legalize commercial and medical marijuana?
Lawmakers will have to specifically include amelioration in the law. They will have to jump down from their “tough on crime” high horse and give relief to those already serving sentences for something that will, eventually, become legal.
The good news is that the majority of prosecutors in Colorado and Washington, where pot is legal, said they will not pursue investigations into existing marijuana crimes.
For those already convicted, however, no relief is in sight.
Regardless of what happens in November, marijuana is still illegal in Oklahoma. If you’re arrested for marijuana possession, contact the law firm with the knowledge and the experience to defend your rights.
Since it’s obvious most Oklahoma lawmakers don’t have any common sense, it is important you know how to protect yourself from being arrested for a marijuana crime. If you find yourself accused of a marijuana crime, send us an email or call (405) 703-4567. Below are some simple tips to help you avoid finding yourself on the wrong end of some good, ol’ fashioned Oklahoma justice.
Three Tips for Avoiding Charges
1. Don’t Leave Marijuana Out in the Open
Under most circumstances, cops have to get a search warrant before they can search your home. However, if an officer sees a pipe or a baggie on a table from a place he has a right to be, he can legally seize it and arrest you. Do not smoke in public or in your car and remember to always keep your “stash” out of sight.
2. Never Ever, Ever, Ever Consent to a Search
As Ron White says, “I had the right to remain silent, I just lacked the ability.” Many people arrested for pot charges would not have been if they had exercised their Constitutional rights. Time and time again, I have had clients simply hand their joint to the cop when he asks. If he has to ask, he doesn’t know where it is or doesn’t have enough to legally take it.
Don’t make his job easy. Cops will threaten, bully and lie to you to in an attempt to search your property. If you consent, and they find some pot, you are going to jail and any legal defense to an unlawful search is probably waived. If you refuse to let them search, they either must let you go, or try to get a search warrant.
Many times a joint or two is not worth the officer’s time and he will simply release you rather than expend the effort and time to secure a search warrant from a judge. However, if all he has to do is ask to get you to hand it over, he is that much closer to meeting his quota.
Never consent to a search or talk with an officer. If they are going to find it anyway, then they will, but don’t waive your rights, and any possible legal defense, in the process. It is very simple to exercise these rights.
If a police officer asks to search you or your property, it is perfectly legal and acceptable to respond with: “I do not consent to a search of my (fill in the blank). If I am not under arrest, I would like to leave now.” That is all it takes, don’t answer anymore questions or allow the officer to engage you in any chit chat, shut up and walk off.
3. Don’t Answer Questions Without Your Attorney Present
There are very few deaf mutes in prison. Anything you say to anyone, with a few limited exceptions, can be used as evidence against you. You have the right to have an attorney present during questioning by law enforcement. Your 5th Amendment right to remain silent should always be exercised.
Visit our Oklahoma Marijuana Laws page to learn more and contact us if you find yourself accused of a marijuana crime.
What the Current Law Says
The Fourth Amendment to the Bill of Rights of the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fifth Amendment reads, in part, “No person shall be… compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….”
These Amendments were included in the Constitution to protect American citizens from the government intruding in their every-day lives without good reason. Fast forward to July of 1971 when President Richard Nixon declared what has come to be called the “War on Drugs”. Nixon told Congress that drug addiction had “assumed the dimensions of a national emergency”, and was “public enemy number one”.
Since then this “War” has raged in the streets, highways, schools and homes of Americans and has had dire consequences for every American. It is no secret this “War” has been a total disaster. The United States Supreme Court and Oklahoma Appellate Courts have slowly whittled away at the 4th and 5th Amendments until they are now a shadow of what the Founding Fathers originally had in mind. In their efforts to protect police officers, and more importantly, the steady stream of money the “War on Drugs” produces for various government entities, appellate courts have run rough shod over the rights of every American.
The “tough on crime” politicians have only exacerbated the problem. Mandatory minimum sentencing and life sentences for drug crimes have filled American prisons to the breaking point and doomed generations to a life of poverty and violence, and nowhere else is it more evident than in Oklahoma. According to The Sentencing Project, an advocacy group which works to promote reforms in sentencing policy in the United States, Oklahoma has the fourth highest incarceration rate in the country with 648 Okies in prison per 100,000 citizens, behind such enlightened states as Alabama, Mississippi and Louisiana. This is well above the national average of 480 people per 100,000 citizens. Oklahoma is the leading incarcerated of women, with 63 females incarcerated per 100,000 citizens. Of those Oklahomans in prison, half are incarcerated for nonviolent property and drug offenses and 27% of the prison population in Oklahoma is incarcerated for drug crimes, the highest percentage in the country.
While there have been some efforts to try and stem the tide of Oklahomans going to prison for marijuana possession, I am not going to hold my breath. At least for now, we are stuck with the draconian marijuana laws currently in place in Oklahoma. In Oklahoma, marijuana is a Schedule I drug.
Schedule I drugs are characterized as substances with a “high potential for abuse and no accepted medical use in the United States or lacks accepted safety for use in treatment under medical supervision”. The penalties for a first-time possession of marijuana are up to one (1) year in a county jail and a $1,000 fine. The second time you get caught in Oklahoma with a little weed, you could be looking at between two (2) and (10) ten years in an Oklahoma prison and up to a $5,000 fine.
In addition to those very scary penalties, you can also lose your driver’s license. If you are convicted of marijuana violation while using a motor vehicle you can lose your driver’s license for six (6) months for a first offense. However, you can get a modified Driver’s License which will allow you to drive a vehicle with an ignition interlock installed in it for the time you are suspended. Think about that for a moment. Oklahoma will allow you to drive a car if you install a device that detects alcohol if you get got with pot. With laws like this on the books, it is no wonder Oklahoma is in the shape it is.
While this very short lesson on Constitutional law is meant to give you a few pointers on exercising your 4th and 5th Amendment rights, it does not and should not be a replacement for advice from an experienced criminal defense lawyer.
See the Oklahoma Marijuana Laws page to learn more and call us today at (405) 703-4567 if you need of a marijuana defense attorney.
Is marijuana legal in Oklahoma?
The long and short answer to this question is a resounding “no.” Oklahoma is one of the states that has kept marijuana illegal, but also has instituted some of the toughest laws and sentences for possession and distribution of marijuana.
But this may change soon. According to the Oklahoma chapter of the National Organization for the Reform of Marijuana Laws (NORML), a majority of Oklahoma’s voters indicated in a survey that they would support the legalization of medical marijuana use as well as the de-penalization of pot possession for recreational users.
In fact, 71 percent of survey participants indicated they would support a change to state law that would allow cannabis to be used for therapeutic purposes, joining 20 other states that enacted similar laws in 1996.
THE HARSHEST OF PENALTIES
Oklahoma has strict penalties for the possession of marijuana, and the same respondents said they would support changes to the criminal laws. Namely, 57 percent said they would like to see marijuana possession penalties change from the arrest and jail time that it currently is to a non-criminal, fine-only offense.
Sixteen other states have already adopted this change, and Colorado and Washington have eliminated all penalties associated with possession of marijuana by adults.
Right now, Oklahoma has some of the harshest marijuana penalties in the country. Distribution of marijuana in any amount can carry a two year to life sentence. Even the most minor subsequent possession carries the stiff punishment of two to 10 years in prison.
How the state can justify sending a marijuana user with a minimal amount of cannabis to prison for 10 years while other states in our country have completely eliminated the criminalization of marijuana is still staggering.
According to the FBI , 90 percent of all marijuana-related arrests in 2011 in Oklahoma were for possession only. In addition, African-Americans in our state are twice as likely to be arrested for possession of marijuana.
In comparison, these strict arrests far exceed the success rate on arrests for violent crime. In the same year, more than 60 percent of all reported rapes went unsolved.
HOPE FOR CHANGE
Hope for change exists, however. Legislators like Sen. Connie Johnson[O3] are leading the charge for more realistic marijuana policies. In 2013, she introduced two bills that would have reduced the penalties for possession of up to 1.5 ounces of pot.
Needless to say, the bills were not successful.
So what can you do? Reach out to your legislators to protect medical marijuana patients or to fine — not jail — marijuana consumers. Those who could benefit from medical marijuana should also reach out to legislators to encourage the legalization of medical use pot.
Is marijuana legal in Oklahoma? No, but with continued efforts toward more realistic policies, maybe one day it will be.
WHERE TO FIND HELP
If you have been arrested for marijuana possession in Oklahoma you need experienced representation. We bring a comprehensive background in drug defense cases and vast resources to protect your rights. Call us today at (405) 703-4567 to schedule an initial consultation.