The Mile High State Just Got Knocked Down a Few Inches

Posted on by danielconaway


Personal convictions aside, marijuana is legal for both medical and recreational use in the state of Colorado. Since the passage and subsequent enactment of Amendment 63 in November of 2012, adults aged 21 and older may legally grow marijuana, sell marijuana, and possess up to an ounce of marijuana in the state. Note – for the sake of simplicity, we won’t get into all of the details of the new law and will just stick with a basic overview. But, marijuana may not be taken outside of the state’s boundaries and it is banned from the Denver International Airport. Additionally, marijuana is only legal for private usage; smoking pot publicly can result in a fine or in an arrest.

The legalization of marijuana has brought with it new laws and new challenges regarding the manufacture, sale, and consumption of marijuana. Companies have been forced to reassess their drug and alcohol policies in accordance to the newly enacted amendment. On Wednesday, the Colorado Supreme Court addressed the questions employees and company administrators alike have been grappling with before and after the legalization of the drug.

According to the Colorado Supreme Court, the Plaintiff, Brandon Coates, was fired from his position at Dish Network after testing positive for THC, the active ingredient in marijuana. He appealed his case all the way up to the state’s supreme court on the grounds that his termination violated his right to engage in “lawful activity” outside the workplace. The court sought to decide whether or not medical marijuana usage is understood as “legal activity” in this situation. In doing so, the court would ultimately also help employers and employees better understand marijuana laws and help them in meshing their internal drug policies and usage rules with their employees’ freedom, or lack thereof, to use the drug.

The court ruled that Mr. Coates’ termination was fully legal under the state’s law. His contract with Dish Network was violated when he tested positive for THC and thus, Dish acted well within the law when they terminated his employment. As long as employees are under a working contract that explicitly states they are subject to drug tests and what drugs are on their banned substance list, employees may be sanctioned or terminated if they fail their required drug screenings, regardless of the legality of the drug used. The court’s decision allows companies to keep drug-testing policies that test for traces of THC and other substances. If an employee is found with THC in his system, he is most emphatically liable to sanctions according to the ruling.

However, many argue that the new precedent is unjust due to the fact that tetrahydrocannabinol, THC, stays in your system far longer than traces of alcohol. Alcohol is out of your system within a period of hours whereas chemicals left behind after smoking or consuming marijuana stay in the system for days, and in some cases, even weeks. According to the National Institute for Drug Abuse, THC can stay in your system anywhere from ten to forty- five days after consumption. This being the case, employees and their lawyers argue that these contractual restrictions are a direct violation of their right to engage in legal activity and are biased against marijuana users. Technically, one could test positive for THC on Thursday morning from consuming marijuana on the previous Friday night after work. Another could also test positive for THC from smoking pot the morning of the test. The two individuals’ situations are far different, but under the law, they are both liable to be terminated on the spot. Scenarios like these present difficult challenges that states and local governments discuss and negotiate. For now, Colorado’s stance is clear. But, this interesting debate about interpretation and implementation of marijuana laws will continue in Colorado and other states that have legalized the drug. It will be interesting to hear further cases and their subsequent rulings as lawmakers and voters anxiously navigate this unchartered territory.

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America’s jails

Posted on by danielconaway

I just finished reading a great article by Ryan Cooper: How Local Jail Became Hell. Ryan makes the point that “the modern American jail primarily houses the legally innocent.” I discuss this issue at length in my book, Arrested: Battling America’s Criminal Justice System. As a practicing lawyer I see this all the time in jails and courtrooms. The local jail is just one tool that is used in our modern day justice system to squeeze the will out of persons who choose to demand a jury trial and maintain their innocence. All too often, persons merely accused of crimes are warehoused, sometimes for years, waiting for the opportunity to go to trial. Meanwhile they are held without bond or with a very high bond they cannot pay. This type of treatment is dangerous to all American citizens, as it makes a mockery out of the basic constitutional principal that an American citizen accused of a crime is innocent until proven guilty.

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Author Dan Conaway Cited in Elite Book Review

Posted on by danielconaway

Alan Caruba, a member of the National Book Critics Circle, has included “Arrested, Battling America’s Criminal Justice System ($19.95 Bascom Hill Publishing Group, softcover) by Dan Conaway in his Picks of the Month post for January on his blog, Bookviews. You can find the post here.

Arrested: Battling America’s Criminal Justice System is for you if you are a good, decent, law-abiding citizen who happened to be in the wrong place at the wrong time–or know someone who was–or you just want to know more about the American criminal justice system, this book is definitely for you.

Practicing criminal defense attorney Dan Conaway has written Arrested to help us all understand our rights and responsibilities as upstanding citizens of the country we live in.

“The Beast”–as he refers to our criminal justice system–has very little in common with the way it is depicted on TV crime dramas. Clearing away the fiction, Conaway addresses the following real-world topics:
• What should you say if a police officer stops you to ask “just a few quick questions”?
• Why does it take so long for most cases to go to trial?
• How can you help a family member who has been accused of a crime?

Although not intended as a substitute for professional legal counsel, Arrested can be used as a guide as you work your way through the maze of one of the most complicated systems on the planet.

With the help of fact-based scenarios, Conaway shows us all what could happen to any of us if we’re not careful. Along with explanations of how we have become a “zero-tolerance” society–as well as the good and bad inherent in that label–and practical, real-life examples to learn from, Arrested will give you both the background and the foresight to know how to handle yourself in almost any situation.


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Criminal Defense: Investment Fraud and the Willful Blindness Doctrine

Posted on by danielconaway

Criminal defense: U.S. District Judge Laura Taylor Swain sentenced Bernie Madoff’s assistant, Annette Bongiorno, 67, to six years in prison – a lenient sentence far less than recommended by the federal sentencing guidelines for investment fraud. During sentencing, Judge Taylor told Ms. Bongiorno that she had “willfully blinded herself,” and “chose Madoff’s blessing” over “her own moral compass.”

The term willful blindness is the key issue in many white-collar criminal cases involving phony investment schemes like Madoff’s and other types of fraud schemes. The practical legal purpose of the willful blindness doctrine is to allow prosecutors a way of proving that someone involved in implementing an investment scheme, regardless of their role in the scheme, should have known it was illegal but willfully chose to turn a blind eye to the illegality, because they were making good money.

So, as an employee, if your boss tells you he is selling ownership shares in Santa Claus’ workshop at the North Pole and someone who invests $100,000 will receive a one percent ownership of Santa Claus’ workshop and reap guaranteed returns on their investment of $10,000,000; and you participate in selling this “investment opportunity” to the public, a judge or a jury can find you guilty under the willful blindness doctrine of participating in an investment fraud scheme. Your defense at trial will be, of course, “hey, who doesn’t believe in Santa Claus? My boss told me he personally knew Saint Nick, so I figured it was a good investment.” Under the willful blindness doctrine you can be found guilty anyway, unless, of course, your lawyer is able to actually subpoena Santa from the North Pole to come testify on your behalf.

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Posted on by danielconaway

A police officer from Toledo, Ohio, was found guilty Monday of stealing a bag of caramel popcorn from a gas station in the neighboring city of Oregon. Police say that it wasn’t his first time stealing a bag of popcorn. Police say Sgt. Richard “Eric” Whitman was seen doing the exact same thing the day before — paying for one bag and then leaving with two.

Many shoplifters are repeat offenders. The problem is, if you start shoplifting, it can become addictive relatively easily. The adrenaline rush you can get from stealing even a small item, and getting away with it, is very powerful – similar to the adrenaline rush from gambling – and hence potentially addictive. Long-term counseling, as with any addiction, is critical to overcoming the incredibly self-destructive habit of shoplifting.

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Hong Kong’s Student Protesters

Posted on by danielconaway

Hong Kong’s Student Protesters

The New York Times writes this morning:

            “Yet any attempt to remove protesters by force in Hong Kong would inevitably raise parallels with the killing of democracy protesters in Beijing in 1989, an event that split the Communist Party and poisoned China’s relations with the outside world for years.”

As a young man, I remember watching the Tiananmen Square protests on television with my father in 1989. Students of my generation thought that the collapse of communism in Central Europe would change China too. This, of course, did not happen. The Chinese communists ran over their own people with tanks and “doubled down” on autocratic rule. Since that time, China’s leaders have worked vigorously to keep China’s citizens occupied and amused by way of shopping, eating and gaming – the twenty first century’s version of “bread and circuses.” Of course in 1989, CNN and the daily newspaper was about all there was for news coverage. Perhaps in today’s digital world, the people of Hong Kong will be able to win their demands from the Chinese Communist leadership. Their efforts remind me of Winston Churchill’s famous quote “Never, never, never give up.” Thus far, the protesters of Hong Kong appear to be heeding Mr. Churchill’s clarion call.

Dan Conaway – Attorney, television and radio legal commentator, and author of the book Arrested: Battling America’s Criminal Justice System

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Hong Kong Protests

Posted on by danielconaway

The current crackdown on Hong Kong’s protesters is a reminder to all Americans that any discussion of our constitutional rights as they relate to criminal law in America has to begin with the First Amendment to the U.S. Constitution. Why? The First Amendment spells activities you cannot be legally arrested for in the United States, including free speech and freedom of assembly. We need look no further than the streets of Hong Kong this morning to remind us of the importance of our First Amendment Constitutional protections.

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Eric Holder Resigns

Posted on by danielconaway

Eric Holder’s resignation brings to a close his controversial tenure. From a criminal law standpoint his best accomplishment has been bringing a better sense of balance to America’s federal drug prosecutions and the punishment received by defendants convicted of violating federal drug laws. His successful prosecution of terrorism has been laudable as well. On the other hand, his seeming disregard for privacy issues and his theory that some Wall Street banks and other corporations are “to big to jail” are deeply troubling. Originally appointed by Ronald Reagan to a judgeship, promoted by Bill Clinton, and ultimately appointed by Obama to Attorney General, Eric Holder was a symbol of the Obama 2008 comment that America was neither “red state nor blue state” but “purple.” His tenure leaves a few accomplishments, but also many disappointments. Hence, in a broader prospective, he is a poster child for the Obama Administration generally.

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