Video – Alameda County Courts Downgrade Prior Marijuana Drug Convictions

Ray Hrdlicka – Host – Attorneys.Media

“Hi, today we’re here with Andrew Dósa, a criminal defense attorney in Alameda County, California, and the surrounding counties in the Bay Area of course. And Andrew, we’d like to talk about a situation where the Alameda County courts have reacted to new legislation that came — I think it was Prop 64. And so they are downgrading previous convictions to a lesser charge. And in this particular case, they are downgrading, oh my gosh, 7,000 marijuana related cases.

Now, they are felony cases that go to misdemeanors. And then there is 1,200 — if I’m looking at it correctly — 1,200 misdemeanor cases that are going to infractions. And so this goes back to when the law was passed in 2016. It came into effect this year. And so the question I have is, what happens if these guys already did time? I mean, seriously, you know, they’ve done time for the felony conviction and now it’s a misdemeanor. They’ve done time for a misdemeanor conviction and now it’s an infraction. I mean, are they going to say, ‘Hey, sorry’? I mean, I understand what we’re trying to do from going forward, but the fact that they made this retroactive is interesting.”

Andrew Dósa – criminal defense attorney – Alameda County, CA

“All right. Well, let’s talk about it. And good morning, Ray, thanks for asking me to comment on this issue. The societal shift regarding marijuana is unfortunately a delayed process. It took way too long for us to get here. A little historical note, at the time of prohibition, not only was alcohol targeted, but marijuana was targeted. And at that time, all the research that had been done about the health benefits or the prospect of harm that marijuana could cause, was destroyed. And so we’ve started over with relatively little research being authorized in America, although interestingly enough, Israel has embraced this topic. And so there is a promotion of research into the prospect of health benefits of marijuana and that’s hopefully informing the rest of the world about what we need to do with marijuana and how we need to view it. Whether it is a threat or not.

So we’ve shifted in America on our views about this vegetable matter, this marijuana. The first thing is, if the laws were properly passed in the past to make possession of marijuana a crime, and the possession of a certain amount of it to be a felony, not just a misdemeanor. And someone gets convicted. If they serve a sentence, then what we do in retrospect is, nothing. We cannot change anything about what happened in the past. But remember, at the time that those convictions came down, those were laws that were in play and those individuals all had committed crimes as our laws delineated at that time.

So now that we’re changing the crimes, the good news is that the full import of a felony conviction can be minimized to a misdemeanor, a misdemeanor can be reduced to an infraction. The idea of a misdemeanor possession of marijuana becoming an infraction is not new to 2016. It’s been around for 25 or 30 years, and it was this idea that if you were possessing less than — or a minimal amount of marijuana and it was clearly for just personal use, then a first time offense would be considered an infraction. A second time would be considered a misdemeanor, and it went from there. So if there was some consequence for a prior crime and it was a lawfully enacted statute, and therefore a lawfully supported crime, what prosecutor going forward, according to the laws permitted by those statutes at that time, then the consequences are borne by those who get the conviction.

So really what we want to do now though is we want to turn a felony conviction, which we don’t think is appropriate for conduct now, that we thought then was inappropriate. So we’re going to minimize the consequences to people, at least retroactively. That means if someone had a felony, it is now automatically reduced to a misdemeanor once you file your petition for that judicial ruling. Then it changes how that person can conduct himself or herself when they fill out an application for a job. ‘Do you have a felony?’ ‘No, I do not.’ And it’s because we recognize that marijuana is probably not anywhere near as much of a harmful substance. Although the Federal Government has been very, very slow on this, and in fact, very resistant and has essentially made no changes, other than a concession to states where there is a change in the laws. The Federal Government is not coming in and going crazy in California. It’s just politically not a smart move. The laws remain on the books in the federal statutes.”

Ray Hrdlicka – Host – Attorneys.Media

“Well, I hear what you’re saying about possession, and you’ve mentioned that several times here. But in the article, it talks about not just possession, but intent to sell, intent to distribute, and so you’ve got a different situation than a possession concept. And they’ve taken those from a felony to a misdemeanor. That’s the part that I find really interesting. Do you know, for instance, what used to be a felony, and what’s not anymore? What is a misdemeanor now?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“Well, simple possession — so now, in California, we have recreational use, right? So we can look at the three tiers: Absolutely no possession and no use. Possession of a limited amount — actually, four — possession of a limited amount for personal use. And then there is recreational use. And then there is a fourth category, which is use because of a medical doctor’s prescription.

So we did shift out of the era of the medically prescribed marijuana. I will say, not to disparage any doctors who did this, but there were doctors that opened up practices where they literally visited people — or rather, people came to visit them, they were diagnosed with a condition, whether it was depression, neurologic problems, or something like that. So, pain and a neurologic problem — a pinched nerve, or something like that. Marijuana can be very effective at managing your pain. It’s certainly much better than opioid type of substance for some of the other heavy hitter meds that are out there. So there was lawful possession of a certain amount. And in fact, it was a lawful permission to grow a certain amount.

It was interesting, the law at one point said a doctor could allow a person to grow up to 99 plants. I don’t know, if you grew 101 plants, Ray, versus only 99 plants, is that so heinous, that extra two? Or if you grew 95 instead of 99, or you grew 90 instead of 99, I mean, how much weed can you grow with a plant? Well, you can grow quite a bit with a plant if you’re a good harvester. So 10 plants is a lot. But if you do grow in cycles and you can — and there is a way to preserve weed to a certain extent, it’s not something that could last for years and years, sitting on your countertop in a baggie.

So that era of our views on marijuana in California shifted. We don’t need doctors anymore, you can lawfully possess a certain amount, and the laws prescribed that. And realistically, the amount that’s permitted is arbitrary. Some people smoke more and some people smoke less. But what do you do with laws? Well, you decide arbitrarily that some amount is good, right? They look at it this way: Hey, Ray, should I be permitted to have marijuana for personal use? Yes. Okay, how much personal use do I need? I don’t know, I’m going to smoke all weekend long, every hour. Is it going to be edibles? Okay, how much do you need? And that raises the question: What if you possess enough so that you can spread out the amount that you’re possessing over a week? But if you possess it all at once, it looks like a whole lot of stuff. If you possess it at once, and you packaged a certain amount every day for the next seven days, packaging looks like you’re a drug dealer. Because you’re selling a certain amount to a customer and so it’s already properly sealed and preserved. And you’ve weighed it and measured it, so you have your scales. Is that you as a user organizing your use and your dosages over the week? Or is it you as a dealer doing something heinous like, committing a crime and being the king of a criminal enterprise?

So the legislature had to arbitrarily decide what they liked and didn’t like. And it just became a political battle to determine one number versus another number. A larger number or a smaller number, and they settled on something where everyone kind of plugged their nose and said, ‘I’m not happy with that number, it’s not enough or it’s too much.’ And then they agreed on something and they passed the law because they felt, we need to do something. Better that we do something, even if it’s imperfect, than if we don’t do enough, or we don’t do anything.”

Ray Hrdlicka – Host – Attorneys.Media

“Well, I suspect that number may continue to change as the future unfolds. I mean, it just continues to change. So we’ll see what’s coming up in the future on that. Thank you, very much, for your perspective on that. We’ll stay in touch.”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“Thanks, Ray.”