Category Archives: Drug Offenses

Sentencing Enhancements For Dealing Drugs Near School Zones

Drug Problem Facing Local Campus - Newport Beach News

In State v. Richter, the WA Court of Appeals held that the Blake decision does not invalidate the enhancement for trafficking drugs within 1000’ of a school bus route stop just because a drug dealer might deal drugs without knowing he or she is close to such a stop.

FACTUAL BACKGROUND

Mr. Richter was convicted of three counts of delivery of a controlled substance within 1,000 feet of a school bus route stop and one count of possession of a controlled substance with intent to deliver. The trial court imposed an exceptional upward sentence of 168 months based in part on former RCW 69.50.435(1)(c). The statute allows judges to double the statutory maximum sentences for drug offenses that occurred in certain locations.

Richter appeals his sentence. Among other things, he argued his sentence violated due process under the reasoning in State v. Blake, In the Blake case, the Washington Supreme Court struck down Washington’s drug possession statute, because the statute violated due process and was therefore void. The law criminalized “unknowing” drug possession. As a result,  people could be arrested and convicted even if they did not realize they had drugs in their possession.  Consequently, Mr. Richter hoped that his appeal would persuade the WA Court of Appeals to reverse his conviction for the same reasons.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by summarizing the Blake decision. In Blake, the WA Supreme Court declared Washington’s statute criminalizing simple possession of a controlled substance to be unconstitutional because the statute allowed conviction even if the possession was unknowing.

The Court of Appeals emphasized that Blake court held that active trafficking in drugs was not innocent conduct. States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated. The Court of Appeals also emphasized that the Blake court then distinguished the unconstitutional simple possession statute from other valid strict liability crimes. Ultimately, the difference hinges on whether the statutes penalize conduct or passive and innocent nonconduct.

That, reasoned the Court of Appeals, is where Mr. Richter’s argument on appeal collapsed.

The statute imposed increased consequences for affirmative conduct, not the kind of passive nonconduct that the Blake court declared to be innocent:

“Here, although Richter may not have known that he was within a school bus route stop zone, he does not dispute that he intended to sell methamphetamine, and the delivery amounted to affirmative conduct. Therefore, the Blake court’s reasoning does not apply to this case or to former RCW 69.50.435(1) more generally.” ~WA Court of Appeals.

With that, the Court of Appeals denied Richter’s appeal on this issue.

Please contact my office if you, a friend or family member are charged with Drug Offenses or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Fentanyl’s Path to the United States

The fentanyl trip: How the drug is coming to America - ABC News

Intriguing WSJ article by Brian Spegele discusses how Chinese chemical companies are producing more ingredients for illegal fentanyl than ever. Consequently, this has strained relations between Beijing and Washington are undermined efforts to stop the flow.

Among the available products are compounds with obscure names such as N-Phenyl-4-piperidinamine, which Mexican cartels purchase to make into fentanyl. The opioid has become the most deadly illegal drug the U.S. has ever seen.

WHY HAS THIS HAPPENED?

In 2018, China restricted the production and sale of two of the most common ingredients for the drug. This move won it praise from the U.S. Since then, the U.S. has adopted a tougher posture toward China. Simultaneously, China has also grown more assertive about defending its interests. As a consequence, the cooperation on combating the drug trade has broken down.

Conversations about fentanyl between China and officials from the Drug Enforcement Administration and State Department have ceased, according to Biden administration officials. Also, U.S. officials said China cut off all talks over fentanyl after House Speaker Nancy Pelosi visited Taiwan. Apparently, Pelosi’s visit to Taiwan angered China.

Since then, the flow of Chinese chemicals to Mexican drug cartels has created a major challenge in the U.S.-China relationship.

CHINA’S RESPONSE TO THE ACCUSATIONS.

China places the blame squarely on the U.S. “As a matter of fact, it is the U.S. that has undermined China-U. S. counter-narcotics cooperation,” said Liu Pengyu, a spokesman for China’s embassy in Washington.

China has also said the U.S. should address its drug crisis by curbing demand. “The U.S. must look squarely at its own problem instead of deflecting blame,” said Foreign Ministry spokesman Wang Wenbin at an August news conference.

China’s government considers biopharmaceuticals an important economic driver and has no incentive to overregulate the sector.

CHINA’S CONNECTION TO MEXICAN CARTELS.

Accoring to the article, chemical companies in China target Mexican buyers online. The companies say they accept payment in cryptocurrency, and they use encrypted channels to talk with customers.

Some Chinese nationals working with cartels moved to Mexico and adopted local names as part of money-laundering rings, say federal prosecutors. One such network funneled drug proceeds from New York through China’s banking system and ultimately to Mexico.

The U.S. has charged Chinese citizens whom prosecutors accuse of helping cartels supercharge the fentanyl trade. Because the countries have no extradition treaty, some of the accused remain at large.

ULTIMATUMS FROM THE UNITED STATES TO CHINA.

U.S. officials say they have urged China to take three steps to constrict the fentanyl trade: (1) require Chinese companies to know the identities of customers before shipping chemicals; (2) ensure that such shipments are properly labeled for customs inspectors; and (3) create a system to track shipment volumes and trends.

Homeland Security agents and Mexican authorities stopped about 24,000 pounds of cutting agents coming from China to dilute high-purity fentanyl synthesized by cartels in Mexico in October 2020. Agents also blocked 1,600 pounds of 4-AP coming into Mexico from China and 1.5 million pounds of ingredients for meth from China and India, in 2021 and 2022.

Agents traced the chemicals to high-level buyers inside a Mexican cartel. The transactions, through brokers and shell companies, were arranged so the chemical makers in China might not have known who bought the chemicals in Mexico.

My opinion? Unfotunately, this news reveals how high-level politics have globalized the drug trade of Fentanyl into the U.S. Fentanyl is the deadliest drug threat facing this country. It is a highly addictive man-made opioid that is 50 times more potent than heroin. Just two milligrams of fentanyl, the small amount that fits on the tip of a pencil, is considered a potentially deadly dose.

That said, Washington has legalized the possession of small amounts of drugs. In March 2021, the WA supreme court threw out the existing felony drug law in its “Blake” decision. Consequently, possessing small amounts of drugs including heroin, methamphetamine, fentanyl and cocaine has effectively been decriminalized in Washington. Therefore, simply because you’re caught with drugs doesn’t mean you’re selling drugs, which is still illegal.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

DOJ Ends Crack Cocaine Sentencing Disparities

No More Crack/Powder Disparities – Dr. Carl Hart, PhD

The US attorney general, Merrick Garland, moved to end sentencing disparities that have imposed different penalties for different forms of cocaine. This signaled an end to arbitrary drug policies that have worsened racial inequity in the US justice system.

For decades federal law has imposed harsher sentences for crack cocaine even though it isn’t scientifically different from powder cocaine, creating “unwarranted racial disparities,” Garland wrote in a memo Friday to federal prosecutors. “They are two forms of the same drug, with powder readily convertible into crack cocaine.”

With changes to the law stalled in Congress, Garland instructed prosecutors in non-violent, low-level cases to file charges that avoid the mandatory minimum sentences that are triggered for smaller amounts of rock cocaine.

Civil rights leaders and criminal justice reform advocates applauded the changes, though they said the changes would not be permanent without action from Congress. The Rev Al Sharpton led marches in the 1990s against the laws he called “unfair and racially tinged” and applauded the justice department direction, which takes effect within 30 days.

“This was not only a major prosecutorial and sentencing decision – it is a major civil rights decision. The racial disparities of this policy have ruined homes and futures for over a generation.” ~Reverend Al Sharpton

At one point, federal law treated a single gram of crack the same as 100 grams of powder cocaine. Congress narrowed that gap in 2010 but did not completely close it. A bill to end the disparity passed the House last year but stalled in the Senate.

“This has been one of the policies that has sent thousands and thousands of predominantly Black men to the federal prison system,” said Janos Marton, vice-president of political strategy with the group Dream.org. “And that’s been devastating for communities and for families.”

While he welcomed the change in prosecution practices, he pointed out that unless Congress acted, it could be temporary. The bill that passed the House with bipartisan support last year would also be retroactive to apply to people already convicted under the law passed in 1986.

The Black incarceration rate in the US exploded after the Anti-Drug Abuse Act of 1986 went into effect. It went from about 600 per 100,000 people in 1970 to 1,808 in 2000. In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242.

The mandatory-minimum policies came as the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming increase in homicides and other violent crimes nationwide.

The act was passed shortly after an NBA draftee died of a cocaine-induced heart attack. It imposed mandatory federal sentences of 20 years to life in prison for violating drug laws and made sentences for possession and sale of crack rocks harsher than those for powder cocaine.

Friday’s announcement reflected the ways that years of advocacy had pushed a shift away from the “war on drugs” tactics that took a heavy toll on marginalized groups and drove up the nation’s incarceration rates without an accompanying investment in other services to rebuild communities, said Rashad Robinson, president of Color of Change.

“It is a recognition these laws were intended to target Black people and Black communities and were never intended to give communities the type of support and investments they need,” he said.

My opinion? It’s about time. The sentencing disparity between crack and powder cocaine was racist. It was never based in sound policy, and has not improved public safety. Far from it — it is science fiction that has driven racial disparities, bloated our carceral system, and ruined thousands of lives.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Federal Prisoners Punished for Using Their Prescribed Medications

Delaware inmate's overdose shows how easy it is to get drugs into prison

Intriguing article from journalist Beth Schwartzapfel discusses federal prisons punish prisoners for using addiction medication. The article was published in partnership with The Marshall Project, who spoke to more than 20 people struggling with addictions in federal prison. They described the dire consequences of being unable to safely access a treatment that Congress has instructed prisons to provide.

Last year, the Bureau of Prisons disciplined more than 500 people for using Suboxone without a prescription. When prescribed, Suboxone typically comes as a strip of film that patients dissolve under the tongue. On the illegal market behind bars, a strip is cut into 16 or 32 pieces, each of which sells for $20.

Some prisoners have overdosed. Many have gotten involved in dangerous and illicit money-making schemes to pay for Suboxone. The medication costs about $20 for a small fraction of a daily dose on the illegal market, several prisoners said. Many have lost phone or visiting privileges or been sent to solitary confinement because they were caught taking the medication.

“Believe me, 100% I recognize the irony there,” said a bureau administrator familiar with the agency’s addiction treatment programs, who spoke on the condition of anonymity because they are not authorized to speak to the press. “It’s maddening.”

THE “FIRST STEP” ACT

Congress passed the First Step Act four years ago, requiring, among other things, that the Bureau of Prisons offer more prisoners addiction medications, the most common of which is Suboxone. The medications can quiet opioid cravings and reduce the risk of relapse and overdose.

Yet the federal prisons are treating only a fraction — less than 10% — of the roughly 15,000 prisoners who need it, according to the bureau’s estimates.

At the end of October, 21 prisons were not offering any prisoners addiction medication, and another 59 were treating 10 or fewer people — in many cases, just one person, according to bureau data obtained through a Freedom of Information Act request. The rest of the 121 facilities nationwide were each treating a few dozen people at most.

THE CHALLENGES OF PRESCRIBING MEDICATIONS TO PRISONERS

According to the article, the Bureau of Prisons (BOP) is treating increasingly more people since it launched its opioid medication program. In 2019, 41 people were receiving addiction medications. As of October, that had risen to 1,035 people; more than 80% of them are receiving Suboxone. This is good progress.

However, the BOP has fought in court to prevent people entering the system from staying on the addiction medications they were prescribed by doctors in the community. That began to change in 2018, when the First Step Act was passed and prisons and jails across the country began losing lawsuits from prisoners who argued it was cruel and unusual to deny them the addiction medicine they’d been taking before they were incarcerated.

Presently, prisoners need to overcome several administrative hurdles before they can begin medication. They must also obtain clearance from psychological services, then health services, before seeing a prescriber. This process naturally involves extended wait times. Some say the issues stem from a culture at the BOP that is skeptical of addiction medication and pits staff against prisoners.

Federal law treats use of any narcotics without a prescription in federal prison — including Suboxone — as a “greatest severity level prohibited act.” This infraction allows officials to punish prisoners by delaying their release date, confiscating their property. It also allows officials to withdraw visiting or phone privileges and hold prisoners for up to six months in solitary confinement. Experts say even a few days in solitary can exacerbate the mental illness that is often the cause of, or closely linked to, drug addiction.

According to the article, the lack of Suboxone treatment comes amid a rise in drug-related deaths behind bars. A variety of substances are routinely smuggled into prisons and jails through mail, drone drops, visitors or corrections officers and other staff. In the last two decades, federal data shows that fatal overdoses increased by more than 600% inside prisons and more than 200% inside jails.

Forty-seven incarcerated people died of overdoses in federal prison from 2019 through 2021, according to internal bureau data released via a public records request. The data does not specify how many of these overdose deaths were caused by opioids and could have been prevented by medications like Suboxone. However, other BOP data offers some clue: During the same period, correctional staff administered Narcan — a drug that reverses opioid overdoses — almost 600 times in federal prisons.

Prison is an awful experience. Serving a prison sentence while needing a prescription medication is even more challenging. Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

Please contact my office if you, a friend or family member are charged with a drug offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Mental Health & High-Potency Cannabis

Dabs, Wax, Vaping Weed, Edibles and the Real Impact of High Potency THC Products: What Parents Need to Know

Journalist for the Seattle Times reports that research warns of the mental health risks of high-potency cannabis.

Such products are setting off alarm bells for physicians and a group of research scientists in the Pacific Northwest, who see the wide availability of dabs and other highly concentrated substances as a quiet but growing threat to public health, especially among young adults and teenagers. Lawmakers are considering new regulations, like a THC cap or higher tax on potent products

However, retailers and suppliers are pushing back. They point out that these products are already illegal for those under 21. And they warn that bans or increasing taxes on certain products could spur the growth of an illegal drug market.

Nevertheless, scientists point to emerging evidence from studies in adults that link high-potency THC to an increased risk of experiencing psychosis. Moreso, there’s a heightened risk of developing psychosis years earlier than would otherwise be expected in people at risk for the condition. Psychosis involves a loss of contact with reality, and symptoms can include delusions and hallucinations.

A large body of research links cannabis use in youths to psychotic symptoms. Anecdotally, pediatricians here report an increasing number of teenagers in emergency rooms with psychotic episodes. They’ve also experienced disorientation and severe vomiting, called cannabis hyperemesis syndrome. Whether such products should be further regulated — and how to do so — raises complex questions for policymakers.

So far, only Vermont and Connecticut included caps on high THC concentrations in their cannabis-legalization bills — both at 60% THC. California is considering legislation requiring cannabis producers to include a label warning of potential mental health consequences and other risks.

A majority of teens in the Northwest don’t use cannabis. But among those who do, they increasingly report use of dabs and other alternatives to smoking. According to Washington’s 2021 Healthy Youth Survey, about 33% of Washington 12th graders who use cannabis reported that they dabbed it. And in Oregon, the portion of youth who use cannabis and reported dabbing jumped from 26% to 36% from 2017-2019.

Pediatricians say they’re already witnessing what happens when youth with little or no THC tolerance try extremely potent products. Some wind up having a psychotic episode or experiencing temporary cognitive impairment, like trouble with simple motor tasks, finding words or remembering something they were just told. Others who’ve built up a tolerance to high-THC products seek help after severe bouts of vomiting, dehydration and stomach pain, symptoms of CHS.

“Are people really seeing this or are we just blowing smoke here? I’m totally seeing it. I see it at least three or four times a week,” ~Dr. Cora Breuner, Professor of Pediatrics at UW and a Physician at Seattle Children’s Hospital.

The question of how to address concentrates comes down to whether state regulations would embolden a more dangerous black market. Policymakers are weighing several options, including raising age limits or marketing restrictions on high-potency products, charging higher taxes, adding THC caps and launching more robust public health awareness campaigns.

Industry and consumer experts vigorously campaigned against Davis’ THC cap proposals and continue to argue that new restrictions will lead to worse public health outcomes as unregulated products may contain pesticides or dangerous additives.

“(Our) top priority is a safe and quality-controlled marketplace that works to keep products away from kids,” Vicki Christophersen, executive director and lobbyist for Washington CannaBusiness Association, which represents producers and retailers across the state, wrote to The Seattle Times. “A return to prohibition policies is a threat to an open, transparent sector and inadvertently supports the illicit market, which operates in the dark.”

Please contact my office if you, a friend or family member are charged with Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

President Biden Pardons Those With Federal Convictions for Possessing Marijuana

Why Joe Biden's Marijuana Move Is a Midterm 'No Brainer'

WASHINGTON – President Joe Biden announced that he is pardoning people with federal convictions for simple possession of marijuana. This is a historic move that could help more than 6,500 people. And it sends a powerful message on how such actions should be treated.

The vast majority of convictions occur at the state level. The president is urging governors to likewise pardon those offenders. More than 540,000 people were arrested for marijuana-related offenses in 2019 —primarily for state offenses, according to the FBI.

“Too many lives have been upended because of our failed approach to marijuana,” Biden said in a video announcement. “It’s time that we right these wrongs.”

Biden is also asking the departments of Justice, and Health and Human Services to review how marijuana should be scheduled under federal law. White House officials said the president is making the move to fulfill a campaign promise as efforts in Congress to address the issue have stalled.

“As I often said during my campaign for president, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.” ~President Joe Biden

Biden said the “collateral consequences” of convictions for marijuana possession include being denied employment, housing, or educational opportunities. He also said Black and brown people have been arrested and convicted at disproportionate rates despite using marijuana at similar rates as white people.

The Justice Department will issue certificates of pardons to those eligible. That process will begin implementation “in coming days,” according to department spokesman Anthony Coley. The pardons will apply to those convicted under the District of Columbia’s drug laws, which covers “thousands” more people, according to the White House.

The president’s pardon also blocks future federal prosecutions for simple possession. Marijuana is a Schedule 1 substance under the Controlled Substances Act. The classification is meant for the most dangerous substances. It represents drugs with no currently accepted medical use and a high potential for abuse. Other Schedule 1 drugs include heroin and LSD, while fentanyl and methamphetamine are Schedule 2 substances.

Over the years, Congress has enacted dozens of mandatory minimum sentencing laws for all drug-related offenses that led to longer incarceration periods. Repeat offenders were subjected to compulsory sentence enhancements such as doubling up penalties, which vary by substance. Some have even faced mandatory life imprisonment without parole if convicted of a third serious offense, per various reports by the United States Sentencing Commission.

The Justice Department will work with the Department of Health and Human Services on a “scientific review” of marijuana’s classification. There is no deadline for that review.

Read the Proclamation:President Joe Biden’s proclamation on granting pardon for the offense of simple possession of marijuana

My opinion? Excellent move. The President made a significant step in addressing the systemic racism within the criminal justice system. And it’s progressive. Medical use of cannabis products is allowed in 37 states and the District of Columbia. It can be used recreationally in 19 states and the District of Columbia. It’s time we decriminalize it.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Rainbow Fentanyl

DEA Warns of Brightly-Colored Fentanyl Used to Target Young Americans

The Drug Enforcement Administration is advising the public of an alarming emerging trend of colorful fentanyl available across the United States.  In August 2022, DEA and other police agencies seized brightly-colored fentanyl and fentanyl pills in 18 states.  Dubbed “rainbow fentanyl” in the media, this trend appears to be a new method used by drug cartels to sell highly addictive and potentially deadly fentanyl made to look like candy to children and young people.

“Rainbow fentanyl—fentanyl pills and powder that come in a variety of bright colors, shapes, and sizes—is a deliberate effort by drug traffickers to drive addiction amongst kids and young adults . . . The men and women of the DEA are relentlessly working to stop the trafficking of rainbow fentanyl and defeat the Mexican drug cartels that are responsible for the vast majority of the fentanyl that is being trafficked in the United States.” ~DEA Administrator Anne Milgram

Brightly-colored fentanyl is being seized in multiple forms, including pills, powder, and blocks that resembles sidewalk chalk. Despite claims that certain colors may be more potent than others, there is no indication through DEA’s laboratory testing that this is the case.  Every color, shape, and size of fentanyl should be considered extremely dangerous.

Fentanyl is a synthetic opioid that is 50 times more potent than heroin and 100 times more potent than morphine.  Just two milligrams of fentanyl, which is equal to 10-15 grains of table salt, is considered a lethal dose.  Without laboratory testing, there is no way to know how much fentanyl is concentrated in a pill or powder.

Fentanyl remains the deadliest drug threat facing this country.  According to the CDC, 107,622 Americans died of drug overdoses in 2021, with 66 percent of those deaths related to synthetic opioids like fentanyl.  Drug poisonings are the leading killer of Americans between the ages of 18 and 45.  Fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG).

In September 2021, DEA launched the One Pill Can Kill Public Awareness Campaign to educate Americans about the dangers of fake pills.  Additional resources for parents and the community can be found on DEA’s Fentanyl Awareness page.

The DEA advises that if you encounter fentanyl in any form, do not handle it and call 911 immediately.

And please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

Felony Sentencing Guidelines | California Felony Attorney

In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his resentencing.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Supreme Court Rules People Can Be Cited for DUI While Driving High

Driving While High | Time

In State v. Fraser, the WA Supreme Court held that people can be cited for DUI for driving while high. The decision upholds the state’s decade-old law regulating marijuana use behind the wheel of a car.

BACKGROUND FACTS

A Washington State Patrol trooper pulled Mr. Fraser after seeing him speeding alone in an HOV lane, changing lanes erratically and cutting off other drivers. When the trooper approached the car, he noticed Fraser was wearing an employee badge from a local cannabis dispensary. The trooper said Fraser was shaking, sweating and had dark circles under his eyes. According to the trooper, Fraser said he had smoked “half a day” earlier but that he no longer felt impaired. After performing several field tests, the trooper arrested Fraser on suspicion of DUI.

A blood test later showed Fraser had a THC blood concentration of 9.4 nanograms per milliliter, with a margin of error of 2.5. That put his THC blood concentration above the state’s 5 ng/ml limit.

Fraser went to trial. He was convicted of DUI.

On appeal, Fraser challenges the constitutionality of the DUI statute. He claimed that the THC limit was not correlated to any real measure of impairment. Therefore, it was arbitrary, vague and unconstitutional. He backed his opinion with testimony from a doctor who said the effect of a given level of THC can vary significantly from person to person.

COURT’S ANALYSIS & CONCLUSION

All nine justices rejected Douglas Fraser’s argument that his 2017 DUI was based on an arbitrary and vague standard for THC levels in the blood. The justices acknowledged that the correlation between THC levels and impairment is challenging to pinpoint. However, they found that blood measurements nevertheless provide a useful and constitutionally acceptable measurement.

“Although this limit may not be perfect in terms of identifying degree of impairment for all individuals, it is reasonably and substantially related to recent consumption, which is related to impairment.” ~WA Supreme Court Justice G. Helen Whitener

And while driving and cannabis use are both legal, neither is a right, the justices said. The impairment caused by 5 ng/ml of THC in the blood may vary. However, the limit serves its purpose by discouraging drivers from taking to the roads after using marijuana.

“The laws aim to deter people who have consumed cannabis from driving when there is a possibility they could be impaired, thus promoting some public interest of highway safety.” ~WA Supreme Court Justice G. Helen Whitener

It’s reasonable to assume the law will continue to do just that, Whitener wrote, and “the highways will be safer because of it.”

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.