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Medicinal Cannabis Update: April/May 2018

There have been a few developments in the world of medicinal cannabis over the past month that are quite noteworthy.

FIRST– THE BIG NEWS! ELECTION DAY

Yesterday, May 15, 2018, was Election Day in Pennsylvania and medicinal cannabis scored a big win with the primary victory of Lt. Governor hopeful John Fetterman, who will be running with Gov. Tom Wolf in the next election.  Fetterman has been a strong ally of medicinal cannabis and we at Cannabis Legal Solutions strongly endorse his candidacy.

April saw the 2018 World Medical Cannabis Conference at the David L. Lawrence convention center in Pittsburgh. Attendees from across the state and the U.S. gathered in what was a very successful conference.

Our own Patrick Nightingale gave the opening Keynote address and also participated in several workshops and panel discussions which were well-received by attendees.

Major players were there, including Keystone Integrated, Solevo and Cresco Yeltrah as well as other growers/dispensary owners and attendant support service providers from across Pennsylvania. The event was hosted by Pennsylvania Medical Cannabis Society.

Coincidentally, perhaps, President Trump announced his support for medicinal cannabis while the convention was happening.  This is a big development in light of Attorney General Jeff Sessions’ previous statements saying he does not support medicinal cannabis, and everyone involved in this booming industry breathed a collective sigh of relief.

Perhaps the time has come to petition the President to work with congress to reschedule cannabis to reflect reality and acknowledge the medical efficacy of cannabis treatments.  It would be a real win for everyone involved if the federal government also addressed the conflicting banking regulations that prevent using banks for, “drug money”.

Unfortunately, not all the news in April was good.

Industrial Hemp took a hit when the DEA decided to thumb their noses at congress and classify hemp as a schedule 1 narcotic, despite the fact that it has no authority to do so.

The DEA is a regulatory agency which is there to enforce the law, not create the law.  Only congress has the authority to reschedule a drug and legislate laws.  This will undoubtedly result in a challenge in the courts.

And finally, great news for Pennsylvania patients as the Pennsylvania Department of Health has expanded their recommendations for treatment options and qualifying conditions.

Recommendation that the program expand the form of medical marijuana permitted under the Medical Marijuana Act of 2016 to include dry leaf or plant form for administration by vaporization.

Recommendation that the medical condition of “neurodegenerative diseases” be added to the list of serious medical conditions.

Recommendation that the medical condition of “dyskinetic and spastic movement disorders” be added.

Recommendation that the medical condition of “addiction substitute therapy-opioid reduction” be added.

Recommendation of adding the medical condition of “terminally ill,” meaning a medical prognosis of life expectancy of approximately one year or less if the illness runs its normal course.

Recommendation that practitioners have the option to opt-out of the public registry.

Check back here for more developments as they occur.

 

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Vinni BelfioreMedicinal Cannabis Update: April/May 2018
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Ignorance or lies? Either way Jeff Sessions simply does not understand federal drug prosecution and federal drug sentencing

This morning I awoke to an op-ed published in the Washington Post authored by none other than Jefferson Beauregard Sessions, Attorney General of the United States of America.  Attorney General Sessions opines that the Department of Justice must “get tough” on drug offenders and the only path forward in increased incarceration.

 

What strikes me is Attorney General Sessions stunning ignorance of the effect of the United States Sentencing Guidelines, sentencing enhancements such as “Career Offender” or “Armed Career Criminal” and the potentially devastating effect of a Rule 851 Notice of a prior drug felony conviction.  Combined these sentencing provisions can put a young person (most often a person of color according to Bureau of Prisons statistics) in prison for twenty years to life for “conspiring” to sell an amount that triggers a mandatory.  And, remember, the mandatory provisions apply to Conspiracy to Distribute A Controlled Substance – meaning the feds can add up all of the weight allegedly distributed by ALL members of the Conspiracy when determining the applicable sentencing guidelines range for the street level dealer.

 

While the Department of Justice and federal law enforcement has the resources to tackle large drug distribution conspiracies, the fact remains that MOST drug investigations and prosecutions are at the state level.  While taking out a “drug trafficking organization” may feel satisfying to the investigating agents, it has zero effect on reducing DEMAND from drug users.  In other words, doubling down on arrests and prosecutions are, quite literally, meaningless when it comes to addressing the root causes of addiction, drug use and drug abuse.

 

Attorney General Sessions gives cursory treatment to the upsurge in heroin use and abuse in this country.  Completely absent from his statement is the very real role that the pharmaceutical industry has played in dumping enormous amounts of highly addictive prescription opioids on the streets of every American city and town and reaping stunning profits.  Individual states recognize this, and that is why states like Ohio and NJ have sued.  The fact that the United States Attorney General simply ignores this is inexplicable and inexcusable.

 

Further, either Attorney General Sessions is truly ignorant of federal charging policy under the Cole memo or he is deliberately lying about its provisions.  Federal prosecutors were 100% permitted to bring whatever indictments they believed were appropriate.  The Cole memo instructed prosecutors to consider whether or not to subject the addict husting to support their addiction to the full fury of federal prosecution.  Here in the Western District of PA opposing counsel assure me that they always weigh whether not to indict (and then always manage to justify indicting the “mule.”)  In practice, the Cole memo makes it more difficult for me to go to the prosecutor and ask him or her to review the indictment as they will have already done a Cole memo analysis before bring charges.

 

If the federal prison population declines I would submit this is a good thing, not an indication that we need to incarcerate more offenders.  If federal prison sentences are shorter I would submit this is a good thing as Courts are afforded more sentencing discretion to assess the individual defendant as was ALWAYS intended under federal sentencing law.  Seeking enhanced  mandatory minimum sentencing substitutes the sentencing discretion of the Court for the unreviewable discretion of a prosecutor, who is likely not motivated to consider the individual characteristics of the defendant.

 

Attorney General Sessions has hijacked criminal justice reform and veered dangerously towards policies that have been proven an utter failure.  It is up to all of us, conservative and liberal alike, to demand that the Attorney General not destroy bi-partisan sentencing reform efforts as we continue to struggle with our approach to this nation’s drug abuse issues.

 

Patrick K. Nightingale, Esq.

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Patrick NightingaleIgnorance or lies? Either way Jeff Sessions simply does not understand federal drug prosecution and federal drug sentencing
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Prison For Profit: A Protest Gone Wrong

The Media circus surrounding those individuals who took part in the protest of conditions in the Allegheny County Jail has made the facts in this case difficult to sort out in the extreme.

Tuesday was one of those days when we go to court and have the opportunity to talk about much more than an individual client accused of a crime. We are in fact debating a far larger issue, one of Constitutional import, in which the accused have Constitutional rights.

The right to protest. The right to a fair trial. The right to be innocent until proven guilty.

While there were many people involved, eleven protesters face a variety of charges ranging from inciting a riot to assaulting a police officer. The evidence at this time is very unclear as to who might have done what. This is why the court proceeding has been postponed to a special session.

“Obviously, there is going to be a lot of evidence the Commonwealth will seek to introduce in this matter, we have rescheduled everything,” said attorney Patrick Nightingale, who represents Tyler Kobel. –KDKA-TV2

http://pittsburgh.cbslocal.com/2017/04/04/allegheny-county-jail-protest-suspects-hearing-delayed/

Someone who has been accused of a crime does not have to prove their innocence. It is the burden of the Commonwealth to prove guilt beyond a reasonable doubt.

In this instance, we believe–due to the actions of a few individuals– the situation escalated to a point of chaos in which individual accounts could be inflated or confused, due to the emotional state of everyone involved.

Actions may have been perceived as aggressive when in fact they were defensive on an instinctive level. Individuals who were exercising their right to protest may have been misidentified regarding their involvement in any criminal activity that occurred.

In short, it’s going to take some time to sort all this out.

An unfortunate side-effect of all this confusion is that we have lost sight of the validity of the concerns the protesters were trying to bring to light: The sad state of affairs in a for-profit prison system that treats people as numbers to be added up by corporate accountants, with little regard for justice.

Caging people for non-violent crimes often creates far more hardship than actual justice for not just those incarcerated, but for their families as well.

Example:

Items like clean underwear, socks, etc., must now be purchased from a prison store. Even phone calls must be paid for by prisoners. 

Where once a family could bring these items to an incarcerated individual from home, families must now deposit money in prisoner accounts to purchase those items, adding an additional financial burden that has nothing to do with justice, and everything to do with the bottom line of their corporate overseers. Collect calls are a thing of the past.

And those prisoner accounts earn interest for the corporations, adding yet another layer of profit motive that has nothing to do with justice.

And what does all this mean for those who have no money to deposit? No clean underwear because their family doesn’t have the money to buy more, even though they could bring them from home?

A prison system based on profitability needs customers, which has very little to do with a fair dispensation of justice.

It’s time we as a society decide whether we are trying rehabilitate non-violent incarcerated people for re-entry into society, or simply cage them like animals so politicians can use them to prove they are tough on crime, and turn a profit to boot.

 

 

 

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Patrick NightingalePrison For Profit: A Protest Gone Wrong
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Customer Service and the Court System

One of the biggest frustrations faced by anyone involved in the legal process– attorney and client– is the general slowness of the system.

We’ve talked in the past about the overwhelming caseloads dealt with in the system, and how that can adversely  effect the flow of information. It can often be an excruciatingly slow process obtaining records, transcripts, etc., and many people become very frustrated.

“Why is it taking so long?” is a question we hear a lot.

People are used to being able to call a customer service line when addressing issues involved with private businesses. Even if they don’t get the answers they are hoping for, they at least get answers– usually the same day.

This is not the case when dealing with the court system.

There is no customer service department in the legal system.

Judges cannot be forced to sign off on anything any faster than their caseload and schedule allows. The same is true of reporting agencies like, for example, court reporters. They can only prepare and release transcripts within the confines of their schedules and workload.

And believe me, the system is quite busy.

Just in Allegheny County, there are literally hundreds, if not thousands, of cases going through the system each week.

Sometimes a delay can be caused by a mistake– a misplaced piece of paperwork, for example– that can throw a wrench in the works, but more often than not, it’s simply a matter of awaiting our turn.

At PKN Law, we endeavor to expedite this process whenever possible, but the fact is, we are as much at the mercy of the system as our clients.

This is especially true at this time of year, when so many people in the system– from Judges on down– are dealing with shorter work weeks and general family issues due to holidays.

In one current case, we have been awaiting a trial transcript that is absolutely necessary in order to proceed with the case. There is simply nothing that can be done until we can review that transcript.

This can be extremely difficult for someone who is sitting in jail, as well as for family members who just want to see their loved ones again.

Clients will often say things like, “I can tell you what happened”, but until we see the Judges ruling, in their own words, there is simply nothing that can be done. We cannot proceed on the word of our client. We have to see the legal language on record for ourselves in order to determine the best course of action in any given situation.

Sometimes it probably seems like we’re stalling, but that couldn’t be farther from the truth. It is in everyone’s best interest that we resolve cases in the most timely manner possible, and we do everything in our power to bring that about.

Unfortunately, there are times when we must simply be patient and wait it out. Bugging someone in the system to move faster can sometimes result in the opposite happening, so it’s important for our client’s well being that we abide by the system, in order that we can best serve them in our ultimate goal to represent them to the best of our ability.

 

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Patrick NightingaleCustomer Service and the Court System
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“Trash Pulls” and the Fourth Amendment

A “Trash Pull” is a technique employed by law enforcement where they literally go through a suspects garbage, looking for potential evidence of criminal activity or to verify the identification of the residents via “indicia of residency” such as utility bills, etc.

Law enforcement does not need to procure a warrant in order to search anyone’s garbage.  Law enforcement does not even need to demonstrate “reasonable suspicion.”

Garbage containers, bags, etc., are right out on the street, ie; public space.  The Supreme Court has held that garbage cans constitute “abandoned property” and the individual loses any privacy interest or standing to challenge the search.

Anything from a call to police from a neighbor alleging illegal activity, to inclusion in an ongoing criminal investigation can trigger a trash pull.

A mere hunch is sufficient to justify a trash pull.  Hearsay, rumor and innuendo can be enough to pique an Officer’s interest in one’s trash.

Anything incriminating the police find can be used by law enforcement to secure a search warrant for the premises to which the trash originated from.

One common misconception regarding a trash pull is law enforcement needs to find something in the trash that ties it to a specific person or persons at the residence in question, such as mail or a utility bill containing names and the address. This is false. The issue is whether the trash pull leads law enforcement to have probable cause to believe the residence contains contraband.

A person of interest to law enforcement need not actually rent the property in question, and may not even receive any mail there at all. They could simply be sleeping on the couch at their buddy’s home.

Marijuana growers beware!

One of the biggest mistakes someone with even a small marijuana grow operation can make is to throw out anything associated with growing marijuana– leaves, root balls, even something as innocuous as light fixtures, ballast boxes, etc– with their usual garbage, which can then be used to secure a search warrant for the premises. I have seen this situation come back to haunt people more times than I care to remember.

The bottom line is, trash placed on a public street or sidewalk is not protected under the Fourth Amendment of the United States Constitution.

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Patrick Nightingale“Trash Pulls” and the Fourth Amendment
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For Immediate release: Pittsburgh attorney challenges Marijuana’s Schedule I classification.

Pittsburgh attorney and marijuana reform activist Patrick K. Nightingale has filed a motion challenging the Constitutionality of marijuana’s Schedule I classification.

The motion was filed with the Court of Allegheny County, Pennsylvania.

Pennsylvania law defines a Schedule I substance as a substance with a high potential for abuse and no accepted medical use.

Despite this classification, Pennsylvania recently joined 25 other states with a medicinal marijuana program and the Pennsylvania Legislature specifically found that marijuana can provide relief to critically ill Pennsylvanians.

Mr. Nightingale has released the following statement clarifying his challenge of the Schedule 1 classification of marijuana in Pennsylvania:

“Both medicinal consumers and recreational consumers are faced with potential prosecution for possession of a Controlled I substance despite the fact that we have a law demonstrating its efficacy for treating any of 17 qualifying conditions. I believe this amounts to a denial of equal protection and the Court is in a position to address this contradiction.”

Previous challenges in states like California, for example, have gone unresolved, leaving the process of removing Marijuana from the Schedule 1 list in the hands of Congress.
Unfortunately, Congress has been unwilling or unable to act decisively on this important issue, ultimately affecting not just Pennsylvanians, but every American citizen and their right to equal protection under the law.
It is our contention that the Court has the power to force Congress to finally take action on this clearly contradictory law as a violation of Constitutional Rights.
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Patrick NightingaleFor Immediate release: Pittsburgh attorney challenges Marijuana’s Schedule I classification.
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Medicinal Marijuana: Not a Defense for a DUI

pennsylvania-dui-lawyerAs we see a relaxation of attitudes and laws surrounding marijuana, we’re also seeing a lot more misconceptions about what this all means when it comes to getting arrested.

We’re also seeing a disturbing upward trend of DUI charges for marijuana.

A few people have contacted us regarding a DUI for pot, and claiming they have a medical condition that can be treated with medicinal marijuana.

That may be the case, but it has absolutely no relation to DUI charges.

Even if you are prescribed a medication from a Doctor– any medication– you can still get a DUI for operating a motor vehicle while using that medication.

In the case of marijuana, the guidelines for prescribing medicinal marijuana have not even been put in place yet. There is still a board certification process before we even have Doctors who can prescribe MM.

The qualifying medical conditions list is still rather small, and the method of delivery hasn’t been completely worked out yet, beyond the fact that it WILL NOT INCLUDE SMOKING MARIJUANA.

Possession and use of marijuana is still illegal.

Driving Under the Influence (DUI) of almost any mind or mood altering substance is illegal, regardless of whether or not it was prescribed by a Doctor.

Decriminalization does not mean marijuana is legal, and no matter how legitimate a medical condition is, one cannot prescribe their own medication.

A Judge may be willing to take a legitimate medical condition into consideration when pronouncing sentence in cases involving marijuana, but it is not a defense.

If you or someone you know has been arrested for a DUI involving marijuana, or any substance, please give us a call. We’ll talk about your situation and look for ways to reduce and even eliminate the potential damage whenever and wherever possible.

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Patrick NightingaleMedicinal Marijuana: Not a Defense for a DUI
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Welcome to The Machine

The legal system can be… frustrating. No doubt about it.

Anyone who works in the system can easily identify more than one area that would benefit from streamlining with a more efficient process, better software, reduced redundancies, etc.

I spent the better part of my morning preparing a rather extensive appeal document. I had it written well in advance, read, re-read and fretted over it until it was ready. I could relax… wrong.

Adobe Acrobat (yes, Adobe, you) made my morning a living hell.

Without going into the details of the repeated crashes, after much effort, the PDF document was finally ready… to be printed.

That’s when it hit me. Here I had created an electronic document that even someone in 1998 could view and print, yet I had to send my assistant to Kinkos and get a total of 11 copies of two files, each with different colored paper, and mail them to various interested parties who could have easily accessed and printed them via secure servers, in less time than it took me to battle Acrobat. And on top of that, the clock was ticking– I had to appear in court soon.speedy trial PA

Frustrating.

Don’t get me wrong, I appreciate the hard work and effort that all my colleagues display, but there are often times when a simple upload could save more than a few man hours and streamline the process. At the end of the day, the system is what it is, and although I am certainly an activist and advocate for issues like marijuana legalization and gay rights, I am, first and foremost, an attorney. I am am trained to successfully navigate the system– not change it.

My clients do not hire me because they want to change the system. They want competent, experienced and professional representation in a court of law.

As much as I hated the digital document of death this morning, my job, indeed my legally binding oath, is to represent my clients to the best of my ability, and if that includes a duel to the death between Microsoft Windows and Apple OS because 4 court systems cannot agree on a digital document format relevant to the 21st century, so be it.

That was just one case. One.

Federal appeals, trials, DUI’s and pretty much everything court related requires documentation formats that are outdated and S.L.O.W.

The system is over burdened ( a big reason marijuana legalization makes dollars and sense) and it still relies on a traditional, 20th century approach to paperwork. It’s literally paperwork.

Not an Excel file, not a Word doc. Printed paper. Date stamped. Often in front of, or by, someone else. This is after waiting in line, behind a bunch of other attorneys and assistants and the cop who cuts in front of everyone…

You get the picture.

At the end of the day, the system, despite it’s machine-like persistence, is still made up of people. That’s where the simple things like being courteous and pleasant, treating everyone from the door guards and clerks to the Police and Judges with respect, can make a big difference.

It’s important remember that my clients are also people, and I have to wade through a lot of muck sometimes, but that’s why I’m there. Navigate the system, use every means at my disposal to get them the very best result possible. And most importantly, remain calm, cool and collected– even on days when I want to smash my computer.

 

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Patrick NightingaleWelcome to The Machine
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A Holiday Message

The US Stance on Medical Marijuana is Confusing at Best2015 was a big year for us at PKN Law. We fought many battles, representing many people, and feel confident 2016 will be an even bigger year for us.

Our success is not taken for granted. It would not be possible without  the people I work with, my lovely wife and family, my friends, and of course, my clients.

It was also a big year for Pittsburgh NORML, which I chair. We took our fight to Harrisburg, where were unfortunately thwarted by politics as usual, but still made significant progress towards the eventual legalization of marijuana in our state.

And we had a significant victory right here in Pittsburgh, as the city is poised to decriminalize marijuana, taking a huge burden off both the police and the public, and offering a potential savings to the city of approximately one million dollars per year in enforcement costs.

And so we look forward with renewed hope for 2016.

May you and yours have a beautiful holiday full of warmth and love.

Merry Christmas, Happy Hanukkah, Happy Solstice, Happy Kwanzaa, Seasons Greetings for whatever you celebrate, and Happy New Year to all.

 

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Patrick NightingaleA Holiday Message
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