The New Police Leader

THE NEW POLICE

LEADER MAGAZINE

FALL 2014

COVER STORY: The Success of No-Refusal DUI Checkpoints by Diandra Ritchie

p. 8

Toy Guns, Confronting the Real Life Danger by Levi Wells

p. 22

Prohibited or Legal? The Status of Marijuana Depends on Which State You Are In by Diandra Ritchie

p. 48

The New Police Leader Magazine is a law enforcement magazine which is free to all police chiefs in Texas as well as other law enforcement offices and officials across the state.

Editor-in-chief/Creative Director Todd M. Fichter

The New Police Leader Magazine is owned and published by Milton Brown, as a professional trade magazine focusing on topics relating to law enforcement and is distributed state-wide in Texas. The magazine is solely owned and does not support any association or political group.

Contributing Writers Diandra Ritchie Levi Wells

The New Police Leader Magazine does not assume responsibility for statements of fact or opinion made by it’s contributors. Articles that appear in the publication do not offer endorsement of products or services from the magazine or it’s employees. The entire content of the New Police Leader Magazine is copyrighted by the publisher or held as indicated and may not be reproduced in any manner, either whole or in part, without written permission.

Supervisor of Magazine Marketing Milton Brown

The New Police Leader Magazine is released quarterly state-wide in Texas. Advertising rates are available upon request.

Graphic Design and Production Fishead Design Studio www.fisheadproductions.com

The New Police Leader Magazine mailing address: P.O. Box 140072 Austin, Texas 78714 Phone: 210-375-5565 Fax: 210-375-5565 www.thenewpoliceleader.org For PR and advertising inquiries, please call 210-375-5565 Owner/Publisher, please call 512-300-4200 Sales, please call 512-363-5409

©2014. All rights reserved. Reproductions of any form are strictly prohibited.

Administrative Staff Robert Wurzbach

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The Success of No-Refusal DUI Checkpoints

By Diandra Ritchie

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of this initiative is the implementation of no-refusal checkpoints. The National Highway Traffic Safety Administration (NHTSA), a federal government agency created to carry out highway safety programs nationwide, has been issuing federal monies and tool kits to various states to encourage the use of no-refusal checkpoints. According to the NHTSA’s website, the no-refusal program is “an enforcement strategy that allows jurisdictions to obtain search warrants for blood samples from suspected impaired drivers who refuse breath tests.” Warrants are obtained over the phone from on-call judges or magistrates. “This enables law enforcement to legally acquire a proper blood sample…During these specified enforcement efforts, prosecutors and judges make themselves available to streamline the warrant acquisition process and help build solid cases that can lead to impaired driving convictions.”

W

e have all seen the advertisements: “Drive Sober or Get Pulled Over.”

Driving while intoxicated is a serious social issue with severe legal repercussions. As a society, we all have a vested interest in keeping drivers under the influence off of our roads in order to protect everyone’s safety. Driving is dangerous enough, even without alcohol. According to the National Highway Traffic Safety Administration, in 2009, 53% of traffic fatalities in Texas involved drivers with zero trace of alcohol in their blood (BAC .00). That means 47% of traffic fatalities involved some trace of alcohol in the blood, although not necessarily an illegal amount. In 2011, 40% of traffic fatalities in Texas were drunk driving related according to Mothers Against Drunk Driving. In 2012, that number was 38%. It seems that the “Drive Sober or Get Pulled Over” campaign seems to be working.

Obtaining a proper warrant has become increasingly important as courts across the country rule that taking a blood sample against an individual’s will without a warrant violates the Constitution, specifically the Fourth Amendment that protects individuals from unreasonable searches and seizures. In 2013, the United States Supreme Court ruled that police must usually obtain a search warrant before taking a blood sample from an unwilling DUI suspect. The Court permitted some warrant exceptions to be decided on a case-by-case basis, but those exceptions would have to pass muster when brought to court in order to be valid. The Supreme Court left open the possibility of creating exceptions to the warrant requirement rule. Texas, for example, had several instances in the Transportation Code where officers did not need a warrant in order to get a blood sample from an unwilling suspect. Two examples were where the suspect had a prior DWI conviction, or a person was killed in a car accident with a suspected drunk driver involved. However, the Texas Court of Criminal Appeals ruled this year that those exceptions can no longer exist. “We hold that a nonconsensual search of a DWI sus-

The commercials cannot claim all of the victory, however.

pect’s blood conducted pursuant to the mandatory-blood-

The most important, and arguably the most effective, part

draw and implied-consent provisions in the Transportation

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Code, when undertaken in the absence of a warrant or any

haps the suspect failed one or more of the field sobriety

applicable exception to a warrant requirement, violates the

tests. Unlike refusing breathalyzers, individuals are still free

Fourth Amendment.”

to refuse field sobriety tests without consequence in most states. Field sobriety tests can easily be failed by someone

In all states, refusal to take a breathalyzer results in the loss

who is sober, but does not have good coordination, or is

of one’s driver’s license under implied consent laws. The

sleep deprived, for example. Plenty of people cannot stand

suspension could be anywhere from six months to a year

on one leg for more than a second or two even when sober.

depending on that state’s rules. In exchange for the privilege

According to the DUI DWI Foundation, the walk-and-turn

to drive, you agree you will take a breath or blood test if

test is accurate 68% of the time, and the one-leg stand test is

asked by law enforcement. There has been some question whether the blood draw does anything additional to protect the public. Most people will think twice about refusing a breathalyzer if it means they cannot legally drive for several months. It seems, then, that the point of the blood draw is to ensure the successful prosecution and conviction of the individual. Breathalyzer and blood tests are the best evidence a prosecutor can get to effect a DUI conviction.

The longer the individual waits to be tested, the lower their blood alcohol content will be. With no solid proof of a BAC over the legal limit, the prosecutor cannot bring an effective conviction.

accurate about 65% of the time. These tests often produce false positives. A breathalyzer can also produce a false posi-

Counties engaging in these stops have judges waiting at the

tive if not used correctly.

ready to issue warrants, most of the time over the phone or electronically. These warrants are issued with a phone call

Thirty states currently have laws on the books that would

or a fax, as opposed to previous measures which required a

permit them to conduct no-refusal DUI checkpoints. How-

paper warrant to be taken to a judge and physically signed.

ever, according to the NHTSA, only nine states currently

Of course, the officer must still demonstrate probable

perform the no-refusal programs – Arizona, Florida, Idaho,

cause. That could range from red eyes, the odor of alcohol,

Illinois, Kansas, Louisiana, Missouri, Texas and Utah.

the suspect stumbling when they got out of their car, or per-

Interestingly, DUI checkpoints, or sobriety checkpoints,

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have been deemed unconstitutional, and therefore illegal, by the Texas Supreme Court. Yet, Texas accepts money from the NHTSA in order to conduct these no-refusal programs. The theory is that these no-refusal stops are done county-wide, rather than being specific checkpoints. The other argument is that a checkpoint is lawful to check for identification and insurance, rather than only checking for sobriety. If the driver happens to appear impaired, the police officer is within the law to then ask for a BAC test to be conducted.

People have been refusing breathalyzers, hoping for no conviction or a lesser conviction by not providing the evidence

take place. Often these checkpoints are advertised ahead

often necessary to convict - a blood alcohol content test.

of time. Press releases are usually provided by local law

According to the NHTSA, Texas averaged about a 50%

enforcement with the dates of the no-refusal events, but

denial rate before no-refusal programs started in 2005.

not necessarily the locations. The NHTSA warns that no-

Montgomery County, Texas is used as an example. Breath

refusal checkpoints “should…be highly publicized to let the

test refusal rates dropped from about 50% before no-refusal

public know that their chances of being caught, arrested,

initiatives started, to as low as 10% in 2010. On average,

and convicted increase during these efforts.” At these

blood alcohol content was higher in those who refused

checkpoints, motorists line up while officers stop at each car

breath tests and got blood test warrants (about 0.19 BAC)

to observe for signs of impaired driving, such as red eyes,

than those who submitted to breath tests (about 0.13 BAC).

slurred speech or the odor of alcohol or other intoxicants.

Conviction rates have also sharply increased.

If the officer determines there is a sign of intoxication, s/

Holiday weekends such as July Fourth and Labor Day are

he will ask the motorist to take an alcohol test, most likely a

popular times for no-refusal DUI and DWI checkpoints to

breathalyzer. If a driver refuses to submit to a breathalyzer,

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903-527-4924

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a blood sample will be taken, even against the driver’s will.

solely on their geographic location does not constitute prob-

Blood tests are taken by registered nurses or phlebotomists

able cause to conduct a criminal investigation. Unless there

waiting at the jail to take the sample. In some instances,

is existing probable cause, a motorist should not be stopped.

a sample may be taken on the side of the road. Under

What the no-refusal programs do is stop the motorist, and

normal circumstances where a judge may issue a warrant

then worry about obtaining probable cause. However, it

for a blood test, the individual would be taken to hospital.

should be the other way around. There has also been a

Additionally, testing for narcotics is done when the blood

question of medical privacy since these citizens are subject

sample is taken. An individual who is uncooperative will be

to a forced blood draw. What, if any, information is being

restrained in a chair with straps while the sample is taken.

kept about the results of the blood draw, and is it possibly being used without the individual’s consent?

The concern for some people is that drivers are stopped not on suspicion based on their driving, but based on where

The balancing act of the individual’s freedom versus soci-

they happen to be geographically. The American Civil Lib-

etal good continues. The no-refusal checkpoints are effec-

erties Union has criticized the no-refusal checkpoint poli-

tive at decreasing drunk driving and that is something that

cies as violating individuals’ Fourth Amendment right to be

benefits everyone. While a checkpoint may be inconvenient,

from unreasonable search and seizures. Opponents of the

any measure that works to ensure that drivers are sober

no-refusal checkpoints argue that stopping a motorist based

seems worth it. n

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By Levi Wells

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In October 2013, Andy Lopez Cruz, a 13-year-old boy carrying an airsoft replica AK-47 assault rifle was shot and killed by Sheriff ’s deputy Erick Gelhaus in Santa Rosa, California. Andy Lopez was on his way to a friend’s house and was spotted by two deputies who were on patrol in the area. Because the riffle the boy was carrying did not have an orange tip at the end of the barrel, and the boy failed to follow the commands to drop the weapon, Andy Lopez Cruz was shot seven times and died at the scene. The two deputies who were correctly investigating suspicious circumstances and commanded the young man to put the weapon down. Failing to follow the commands of the officers, the boy made the wrong move with the weapon and was shot dead as a result. To be sure, no officer would wish to be placed in either of these situations, and certainly none would want to have to kill a child. However, these situations do occur, and when they do, the only thing the officer can rely on to make the right decision is his / her training. That being true, what about the fake or toy weapons themselves?

It was a summer’s afternoon and two police officers were servicing an arrest warrant on a cooperative suspect. They had knocked on the front door of the residence and the suspect voluntarily emerged. He was questioned as to his identity and handcuffed. This all occurred in the presence of the suspects young son, who was about 7 or 8 years old at the time. As the police began to escort the handcuffed father to the patrol vehicle, the boy followed behind at a distance crying and yelling at the police. When the police opened the door to place their captive in the vehicle, the boy ran back into the house and soon after emerged with a large black pistol. He held the gun over his head and yelled for his father “here it is, Daddy, here it is.”

Before I continue on, with what happened next, ask yourself this question: if you were the police in this scenario, what would you do next? Obviously this is a child holding what appears to be a gun. Is the gun real or is it merely a toy? In your experience, how often do these situations occur, if ever? And finally, what training does the average police academy offer to help officers deal with such a situation?

Tamir Rice & Andy Lopez Cruz In the above heated scenario (the arrest of the child’s father), the child may or may not be holding a real gun, while running toward police. However, there may be similar situations that could occur where the circumstances may not be as simple to discern. Take for example, the Cleveland Ohio case that occurred recently with Tamir Rice, a 12 year old child playing in a public park with what appeared to be real handgun, but was in fact an “airsoft” pellet gun. Unfortunately for all concerned, the child was shot dead by police who responded to a complaint that a person was point a gun a people the park. The dispatcher’s failure to emphasize that the suspect was a child may have been a factor in the outcome.

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sport are near exact replicas of real firearms. When used on private property for the sport in which it was intended, airsoft guns are legal in nearly all jurisdictions around the country, with minor exceptions. Most enthusiast understand that airsoft weapons should be handled and treated like any other real weapon and never brandished in public or used illicitly. That said, documented cases of police confronting suspects with airsoft replica weapons do happen, and occasionally with deadly consequences. Unfortunately for those who might object to such air powered pellet projecting weapons, Federal regulations neither prohibit the importation, nor the sales of such products.

Toy manufacturers in many instances have come to recognize the dangers of making realistic looking weaponry, and at a minimum place an irremovable orange cap on the front of the toy to indicate the gun is not real. In other instances, companies like Nerf Inc., use very bright primary colors, like blue and yellow combined with orange or light green. These colors along with cartoon like shapes should make clear that the device is fake to any bystander.

On the other hand, BB, airsoft and paintball gun manufacturers are not required to follow these standards. A walk down the airsoft isle of any major sporting goods store and you’ll find that the differences between real and fake weapons are not so obvious anymore. Many of the airsoft,

BB guns fall into the same category as Airsoft and paintball guns. Because they do in fact fire a projectile, they are not required by federal law to have an orange tip. Industry and gun advocates have suggested that it would be unwise to have such guns include an orange tip, because it may inspire criminals to begin coloring the tips of real weapons bright orange in order to fool police into believing they’re carrying fake guns, when in fact they are real - putting police and the public in unnecessary danger.

and paintball guns, although designed for use in games and tournaments maintain the characteristics of real firearms.

The Color of Toy Guns Federal Regulations, title 15 Subtitle B part 272 requires that ‘Toy Makers’ must color toy guns and toy replicas (specifically designed to be used as toys) with a bright orange tip that is permanently a part of the barrel and or

Paintball, like airsoft, has become a very popular sport and a popular entertainment segment of summer and winter alike. And while paintball guns have compressed air extensions or cartridges that by their very size indicate that they are paintball guns, without these magazines many do appear to be real guns at a distance.

that parts of the toy weapon be clear or translucent plastic, or that it is colored with bright colors, such as blue, yellow, orange, pink or green etc.

Airsoft (a type of pnuematic gun that fires soft plastic pellets) apparently has become a popular sport for enthu-

In general, criminals can obtain paintball guns, BB guns,

siast around the world. Many of the guns designed for the

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1) “Ease of Altering the Marking” 2) “Circumstances of Gun Related Calls” 3) “Police Officer Firearms Training”

airsoft guns and even toy guns and then use them in the commission of crimes such as armed robberies. These types of guns are often used because the perpetrator may not want to, or may not be able to obtain a real weapon on their own. So, what does a police officer do when confronted with a suspect who has a toy or replica gun that may have been painted or altered to look like the real thing? In such a confrontation, the suspect will most likely be shot during the confrontation. And this is where adequate police training comes in. Use of force training during and after initial academy training is often what makes the difference when a Law Enforcement Officer is confronted with a real life or death situation. A police officer’s training will be the difference between his / her life or that of the suspect. In the last ten years, an average of 51 Police Officers are killed by suspects in the line of duty.

Although 51 is a small percentage of the total uniformed police nationwide, any officer killed in the line of duty is one too many. Conversely, each year approximately 400 citizens are killed by police, and of those killed by police, a small number of the suspects were in fact carrying fake or toy guns.

The report most also suggested that Police training required that all guns whether they are toys or replicas (brightly colored etc) be treated as real, and that any situation involving any type of gun real or fake be considered life threatening, and that anything short of this standard would create an increased risk to the public and the officers involved.

The FBI report LEOKA (Law Enforcement Officers Killed & Assaulted) shows that in 2013, 27 Police Officers were killed in the line of duty. While this number is much lower in 2013 than in previous years (nearly half), the more disturbing part of the report is that a majority of officers killed either did not have a chance to, or simply failed to use their weapon. Only 9 officers attempted to or used their own weapon in defense.

18 were killed with handgun 5 rifle 3 shotgun 1 vehicle

8,128 Assaults Involving “imitation guns”

Texas had the largest number of officers feloniously killed.

The most comprehensive study on this topic to date was June 1990 by the Bureau of Justice Statistics titled “Toy Guns: Involvement in Crime, and Encounters with Police.”

This project was commissioned by the US Congress and indicated that both crime, such as robberies, and encounters with Police with suspects in possession of toy guns was more prevalent than initially thought. The study showed that between 1985 and 1989 police reported 8,128 assaults involving “imitation guns” either toy, pneumatic, or replica guns ( in most cases to commit crimes ). Of the police department surveyed, 168 reported 1,128 incidents where a police officer warned or threaten to use deadly force, and in 252 cases, force was actually used, according to the study.

a vehicle.

Of the six officers, five were killed with guns and one with

This same FBI report highlights the danger of situations involving toy guns as indicated in the following summary, which was included in the LEOKA report;

One important element of the report was the attitude that police had toward the required markings on toy guns.

Officers surveyed indicated the required markings were “Insufficient” because of these factors;

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North Carolina-

and unusual events must be unimaginably horrendous.

And while we grieve for and with the parents who have lost children under such tragic circumstances, it is obvious that the lesson to be learned for all parents is two fold; first, children should not play with realistic looking toy guns (Airsoft, BB or paintball included), and second as soon as a child can comprehend, parents would be wise to instruct children to comply with police officer commands quickly and sort out the legal detail later, (as they will still be alive to do so).

A 23-year-old deputy sheriff with the Watauga County Sheriff ’s Office was shot and killed while answering a domestic call around 12:50 a.m. on July 26. After 911 received an open-line call (the caller did not speak) from a residence, the deputy, who had nearly 3 years of law enforcement experience, responded with another deputy to the residence from which the call was made. A woman at the residence told the deputies the man there had been drinking. The man emerged in the doorway of the mobile home holding a firearm, and the deputies ordered him to drop his weapon.

He threw down the weapon, which turned out to be a toy gun. The man then went back inside and returned holding a 12-gauge shotgun. He jumped down from the trailer and walked toward the deputies, who backed up about 15 feet toward the patrol unit to create space. The man fired his weapon, striking the 23-year-old deputy, who immediately returned fire. The victim deputy, who was wearing body armor, was wounded in the neck/throat, arms/hands, and suffered a fatal wound to the front of the head. The second deputy on the scene also returned fire, justifiably killing the 32-year-old suspect. The suspect had a prior criminal record and was determined to be under the influence of narcotics as well as alcohol.

“Guns are not toys” Cleveland Police Chief Calvin Williams probably said best, during a press conference after the Tamir Rice incident.

He stated it clearly and succinctly “Guns are not toys.”

Chief Williams also explained it this way, “our officers at times are required to make critical decisions in a split second...from this tragedy we can gain knowledge and we can proactively and diligently teach our children and our community about the dangers of weapons, mainly handguns, whether they be real or fake.” - ABC News Cleveland

In case of Lopez, according to the Global Dispatch Newspaper, the officer involved, Erick Gelhaus, had gone most of his long career without ever firing his weapon. Unfortunately for him and for the boy with the replica AK-47, it turn out to be a fatal set of circumstances. In Ohio, as of the time of this article, the outcome for Officer Timothy A. Loehmann who fatally shot Tamir Rice, the outcome is yet to be determined. Could he have made other choices as he approached the scene? Would more information from the 911 call impacted the decision making process?

While it may be easy for non police observers like myself to read the facts in such cases and play Monday morning quarterback, being on the front-lines of crime fighting with varying communities and departmental regulations makes each one of these circumstances unique. So who can say whether or not such shootings are justified. In both cases, serious questions do remain, for police and toy gun manufactures alike.

As for the little boy, at the beginning of this article, who ran out to his father holding the gun in the air, the police officers that day were quickly able to identify that the boy was not yet a threat to them. They did however move quickly to the boy and disarmed him. The gun was real, and fortunately no one was injured during the incident.

As for the person who witnessed the incident that day, more than two decades ago, he said he knew that it would stick in his head. And as he reflected back, in light of some of the tragic stories of today, he said that he sometimes wonders if there is a better way. Perhaps science and technology will someday provide the answers. Until then consistent training by police on the one hand and the education of children on the other may be needed to help reduce this type of tragic loss of innocent life. And Finally, manufacturers of toy, replica and compressed air guns, may look for ways to better identify their products which may better aid police when confronting such volatile incidents. n

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M

arijuana reform has been sweeping the nation. Between 2009 and 2013, 40 states took action to

making the possession of one ounce or less punishable by a fine of $200. The hope is to avoid a criminal record, as well as free up law enforcement resources for more serious crimes. The second category of bills fall under medical marijuana initiatives. These bills can range from simply removing criminal penalties for the possession and use of medical marijuana by qualifying patients, to providing for legal marijuana dispensaries for patients. California became the first state to effectively remove criminal penalties for the use and possession of medical marijuana in 1996. New Mexico was the first state to provide for legal dispensaries as part of its medical marijuana programs in 2007. The third category is the legalization of marijuana for personal, recreational use. These bills and initiatives seek to regulate, tax and restrict marijuana use to adults 21 and older, much like current alcohol laws. Generally, public smoking is not permitted and driving under the influence of marijuana would still be illegal.

revise their marijuana laws according to the Pew Research Center. This year Oregon and Alaska voters approved the legalization of marijuana. Maryland, Minnesota and New York legislatures made medical marijuana legal, while voters in Florida declined to legalize medical marijuana. There are currently twenty-three states that have legalized medical marijuana, just under half of the country. Fourteen states have decriminalized small amounts of marijuana possession. Only four states and the District of Columbia have legalized marijuana for recreational use. There is certainly a divide on the issue. Should marijuana be legalized

When the Texas legislature convenes in January 2015 for its 84th session, there will be bills from all three of these categories up for consideration. Marijuana remains illegal in Texas, and the Marijuana Policy Project is introducing three marijuana reform bills covering the spectrum from decriminalization to medical marijuana to full legal recreational use. Houston Representative Harold Dutton (D-142) also filed a bill seeking to reduce criminal penalties for small amount marijuana possession. Dutton’s bill lessens the possession of one ounce or less from a Class B misdemeanor to a Class C misdemeanor. The possibility of arrest still exists, and if convicted, the fine could be $500. For Marijuana Policy Project (MPP) Texas Political Director, Heather Fazio, this bill still leaves much to be desired as proposed and the MPP will be proposing its own decriminalization bill. The MPP bill will be introduced

in any form? Should legalization be limited to medical marijuana? Should marijuana be regulated and treated like alcohol – taxed and restricted to adults 21 and over? A 2014 Pew Research poll found that 52% of Americans support making marijuana legal. When asked more detailed questions about the extent of legalization, 44% said it should be legal for medical use only, 39% approved of legal personal use, and 16% said it should not be legal at all.

Marijuana reform bills introduced to the legislature or as voter initiatives usually fall into three main categories. The first category of bills seek decriminalization of marijuana to varying degrees. The aim is to lower criminal penalties for possession of small amounts of marijuana. This is done by reducing or removing jail time altogether, as well as decreasing the criminal status, for example lowering from one level of misdemeanor to a lesser one, or by making possession a ticket-only offense. An example might be

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by El Paso Representative Joe Moody (D-78), a former prosecutor who sits on the House Criminal Jurisprudence Committee. The MPP bill is a civil penalty bill which seeks to make small possession of marijuana a ticket-only offense with no arrest, jail time or criminal record. The possession of one ounce of less would be punished with a civil fine of $100. The bill does not seek to legalize marijuana, but rather to decrease the current penalties. Possession remains illegal, but is punished by a reasonable fine rather than the prospect of jail time and a much higher fine. Presently under Texas law, possession of up to two ounces is a Class B misdemeanor punishable by up to 180 days in jail and a maximum fine of $2,000. People deemed nonviolent, first-time offenders may qualify for drug court.

Drug courts divert from the jail route and instead impose supervision, constant drug testing and treatment programs.

Drug courts are not mandated in all Texas counties, however. The MPP prefers their bill over Dutton’s because there is no possibility of a criminal record, which can have a negative effect on the individual’s employment prospects, educational opportunities, and housing options, as well as affecting their family.

dispensaries that will grow and sell medical marijuana to qualifying patients is also provided for in this proposed bill.

The idea is that dispensaries will remove the criminal element by taking sales out of the black market and placing them into the dispensaries. For those seriously ill patients who are unable to travel, a caregiver may be designated to obtain marijuana from legally authorized sources for the patient.

A free market bill will also be introduced by MPP. This bill would legalize and regulate marijuana for adults 21 and over similar to current alcohol laws. The sale of marijuana would be taxed, licensed and regulated. The bill would permit retailers, grow houses and labs to cultivate, grow and sell marijuana. Driving under the influence of marijuana would still be illegal, and no employer would be forced to okay intoxication. The MPP cites the Substance Abuse and Mental Health Services Administration and RAND Corporation data that 1,267,200 Texans currently use marijuana each month, with the average user consuming 100 grams per year. If Texas implemented a $50 tax on every ounce sold, the state could make anywhere from $151 million to $264 million in tax revenue annually.

The Marijuana Policy Project is also submitting a medical marijuana bill. According to the MPP, 58% of Texans support passage of medical marijuana. Qualifying patients would be able to possess up to 2.5 ounces of marijuana for personal use without penalty.

Patients will have to meet certain guidelines with the proper doctor’s authorization.

Doctors also will not get in trouble for recommending the use of cannabis for patients.

Specific medical conditions are listed in the guidelines.

Common conditions used in these bills include cancer, HIV positive status, seizures and glaucoma. Patients would also have the ability to grow their own marijuana in a secure location. A framework for

Sounds good, but both Colorado and Washington forecasted much higher tax revenues than were actually received from marijuana sales. However, the numbers still sound positive. Colorado voted to legalize recreational marijuana in 2012, but sales began in 2014. Voters were told the state could pull in $33.5 million from two new taxes in the first six months. But the actual revenue from the sales tax of recreational marijuana for the first six months was about $18.9 million. Medical and recreational marijuana are taxed at different rates in Colorado.

Medical marijuana is taxed at 2.9%, while recreational marijuana is taxed at 27.9%. According to the Colorado Department of Revenue, sales figures from August for medical marijuana was $33.4 million. Sales figures for recreational marijuana were just slightly higher at approximately $34.1 million. Looking at sales tax revenue alone, in September, $908,630 in taxes was collected from medical marijuana sales. For recreational marijuana, just

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over $3.4 million was collected. For October, $928,329 was collected from medical marijuana, and over $3.65 million was collected from recreational sales. Monthly state revenues continue to grow in 2014, with each successive month bringing in more money. January this year came in at just over $3 million in revenue from taxes, licenses and fees for both medical and recreational marijuana. April brought in just over $5 million. July was the first month to hit the $7 million mark.

public. There were a series of advertisements featuring active and retired law enforcement members in support of the legalization ballot measure that ended up passing in Alaska this year. On a radio ad, Alaska’s former Chief Prosecutor Laurie Constantino said she felt that the state’s marijuana prohibition laws “have caused more problems than they’ve solved” and “aren’t working.” Officer Jess Gondek from Valdez, Alaska states in a television ad, “as a police officer, I do believe Ballet Measure 2 will allow law enforcement to focus on more serious issues in Alaska.”

A CNN Money article from September 2014, “Colorado’s Missing Marijuana Taxes,” looks at how some tax profits are being diverted from the state because consumers are still purchasing marijuana on the black market, or growing their own at home and possibly selling on the black market. The article estimates Colorado could be missing up to $21.5 million in tax money. The Marijuana Policy Group estimated that only about 60% of Colorado residents have migrated away from the black market and are buying their marijuana at legal dispensaries. The likely reason is that recreational marijuana is taxed at more than 27% in Colorado, making legal marijuana more likely to be more expensive than black market marijuana. So even with legalization, the possibility of illegal activity still exists. Thus, this becomes an issue for law enforcement.

Under Ballet Measure 2, adults 21 and older can possess up to one ounce of marijuana and grow up to six plans for personal use. Marijuana paraphernalia was also legalized.

On the other hand, the Alaska Association of Chiefs of Police give several reasons on their website why they are against the legalization of marijuana. Among those reasons are: (a) costs – cost to train law enforcement to recognize impaired driving since there are no marijuana tests to administer like a breathalyzer, for example, and costs for community outreach such as DARE; (b) impaired/stoned driving; (c) risks at the job with impaired employees; (d) kids having increased access; and (e) drug cartels and the black market will continue to function. Ten police chiefs from various parts of Alaska met in Anchorage to voice their opposition to the measure. Alaska Governor Sean

How does law enforcement feel about the issue? It seems they are just as divided on the subject as the general

Parnell also opposed the measure. In Oregon, sheriffs

Colorado cultivation facility.

Marijuana for sale at an Arizona dispensary.

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were among the strongest opponents to the legalization issue. The two main concerns were making the drug more accessible to children and an increase in car accidents due to impaired driving. Police Chief Robert Ticer of Avon, Colorado was also strongly against the legalization effort.

His concern was for the community and the children, as well as impaired driving and other associated crime.

hostile environment. Neil Franklin, a Baltimore narcotics veteran, says “marijuana is the number one reason right now that police use to search people in this country.” New York is infamous for its stop and frisk tactics and attendant racial profiling. The New York Civil Liberties Union conducted an analysis that showed that in 2012, 87% of those stopped were Black or Latino. The stated intent by the New York Police Department of their stop and frisk policies is to target arrests for gun possession. However, the majority of stop and frisks only resulted in marijuana arrests. A weapon was found only 2% of the time a stop and frisk was performed. The tense relations between police and the community is nothing new, and it certainly is not limited to New York or Baltimore. Franklin feels that the legalization of pot could possibly result in “hundreds of thousands of fewer negative police and citizen contacts across this country. That’s a hell of an opportunity for law enforcement to rebuild some bridges in our communities – mainly our poor, [B]lack and Latino communities.”

Rolling Stone published an article in June 2013 entitled “Five Reasons Cops Want to Legalize Marijuana.” One of the reasons cited is that the drug cartels and the black market thrive on prohibition.

As long as marijuana remains illegal, they will always have a demand for their supply. But if the government legalizes and then regulates it, the control remains in the hands of the government rather than the drug cartels. Another reason was the desire to focus on crimes that have real victims. A majority of marijuana arrests are for simple possession, not big time dealers.

Instead of taking someone to jail for a joint, police would rather be available to respond to calls of violence, theft, or murder. One of the more interesting reasons given was that legalization could help to foster better relationships between the police and the community they police, especially communities of color. Prohibition has created a

Full legalization in Texas is unlikely for 2015. Decriminalization and medical marijuana bills stand a chance, but what the legislature will do remains to be seen. One thing is certain - marijuana reform is far from over. There still remains the need to reconcile state laws with federal law. Federally, marijuana is still an illegal substance, and where there is a conflict, federal law trumps state law. This leaves any legalization at the state-level on somewhat shaky ground. n

DEA performs a marijuana crop bust.

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