Recently in Drug Possession/Distribution Category

Marijuana Brownies for Children Results in Charges Against Father

brownies.jpgDistribution of Marijuana and Child Edangerment. Those charges were read against Christopher Desimone and his girlfriend Ann Marie Farrow in the Attleboro District Court on Monday.

According to the Sun Chronicle, Desimone is a divorced father of two daughters aged 8 and 11. Desimone's ex-wife has physical custody of the kids while Desimone lives with Farrow in Attleboro. The two girls were visiting their father's home two weeks ago when the alleged crime took place. The prosecution alleged that Farrow baked marijuana brownies and Desimone encouraged the girls to try them. One girl had a brownie crumb and the other took one bite. Neither felt any effects. Some time after the girls returned home, they told their mother that they had been served brownies laced with marijuana. Their mother took one girl to a doctor for a drug test, which came back positive for marijuana.

Two Attleboro Police Officers conducted an investigation culminating in the arrest of Desimone and Farrow on Friday. The couple apparently spent the weekend in custody. The chief of police said the case was "deeply disturbing." At their arraignments in the Attleboro District Court, the prosecution asked for relatively high bails of $1500 and $1000 and noted that [t]he commonwealth takes drug distribution to children quite seriously." (Yes, she said "quite" seriously.) Attorneys for the defendants, on the other hand, requested dismissals.

One attorney pointed out that sharing marijuana cannot support a charge of marijuana distribution. In addition, he argued that reckless endangerment requires "evidence that the children were in danger or suffered serious bodily harm." With regard to "sharing," the marijuana, the judge asked the attorney whether he was "suggesting that the child [was] socially sharing marijuana?" The judge then denied the requests for dismissal and set bails of $1,000 for Desimone and $500 for Farrow.

First, a few questions on the factual allegations. Why did it take two weeks for the case to be brought? Did the kids wait two weeks before telling their mother? Did it take two weeks to get the results of the drug test? Even if it did, why wait? Weren't the words of the children enough? How did the children know that the brownies had been laced with marijuana? Did one or both of the defendants tell them there was marijuana in the brownies? It appears so, otherwise how do you explain that one girl had just a crumb and the other had just one bite. Most kids don't hold back like that on dessert.

For the record, let me say that for the most part, I share the sentiments of the chief. This story, on its face, is disturbing. I also agree with the prosecutor in that distributing drugs to children should be taken very seriously.

But, lets look at the application of the law to the allegations and look at the allegations in light this state's developing marijuana policies.

In 2012 Massachusetts decided to decriminalize the possession less than one ounce of marijuana. Last year, the Supreme Judicial Court did, in fact, rule that passing a joint around was an act of social sharing, and therefore, not illegal distribution. Soon there will be legal medical marijuana distribution centers across the state. Three of them will be operated by a man who is former Congressman and former Top District Attorney for Norfolk County. There is actually a provision (725.015) in the medical marijuana regulations allowing "qualified [marijuana] patient" status to children under the age of 18. The regulations do not have a minimum age requirement. Is it possible that some time in the future the medical marijuana distribution centers will become profitable recreational marijuana distribution centers?

How does this relate to the story? Well, first of all, the perception of marijuana as drug that is either dangerous or even unhealthy has been all but eliminated. After crossing that line how much further must one go to reach the ludicrous conclusion that a little pot brownie may be good for a child. Assuming that the allegations against Desimone and Farrow are true, isn't this the probable scenario. Isn't it likely that Desimone and/or Farrow themselves use marijuana and believe it to be harmless? Some cultures allow young children to sip wine on holidays. Is pot next? Let's hope not.

What about second hand medical marijuana smoke? Will there be any regulations against smoking in the same room with children? If not, aren't they likely to fail a drug test? What would the consequences be for the medical marijuana parent?

What about the charge of child endangerment? To be convicted of this crime there must be proof beyond a reasonable doubt that the person charged did something that created a "substantial risk of serious bodily injury . . . to a child." Did Desimone and Farrow do this? While it is hard to imagine any justification for giving them the brownies, they did not force them to eat more than the experimental amounts, and neither child showed any negative effects, never mind serious bodily injury. Can it reasonably be said that there was a risk of serious bodily injury? That will be a question for a jury and jurors are members of the community. The community at present is taking a very different view of marijuana.

Desimone has been arrested, held on bail, and will surely be thoroughly investigated by the Massachusetts Department of Family and Children. While that appears to be justified, real issues remain with regard to the state of the law in this regard.

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Drug Charges Stem from Alleged "Meaningless Drive" in Norwood

coke bag.jpgThe Norwood Police seized cocaine from two men in the Home Depot parking lot last week after a detective watched them meet and drive around the parking lot. According to the Norwood Transcript and Bulletin, detective David Eysie had suspicions about Miguel Escobar-Cruz and had been keeping an eye on him. On Wednesday he watched Cruz drive to Home Depot and meet Walter Mullock. Mullock got into Cruz's vehicle and they drove through the lot in what Eysie described as a "meaningless drive." The police believe that drug dealers pick up buyers and drive around while making their sales in order to avoid detection.

In this case, the Transcript states that "Eysie pulled Cruz over after the drive was complete." and "[w]hen Eysie pulled them over, he stated what he had witnessed, at which point, they were cooperative." Apparently, the police claim that Cruz's cooperation included giving the police his supply of cocaine and perhaps even admitting that he sold some to Mullock. The police later obtained a warrant to search Cruz's Norwood home and found more cocaine, packaging materials, and $4,000 of alleged drug money.

The police charged Cruz with Distribution of Class B Cocaine, Conspiracy to Violate the Drugs Laws, and Possession of Class B Cocaine with Intent to Distribute, Mullock was charged with simple Possession of Class B Cocaine and Conspiracy to Violate the Drugs Laws.

Cruz got caught with the cocaine in his car, admitted to selling cocaine to Mullock, and had more cocaine and other incriminating evidence back at his house. So it is open and shut, right? Maybe not.

From the perspective of a criminal defense attorney, there is a weak link that may turn the case in Cruz's favor. It involves every individual's right to be free from unreasonable searches and seizures. Here, that weak link is the stopping of Cruz's car. Twice the article says that Eysie pulled Cruz over. If this is true, then there very well may be a viable motion to suppress all evidence obtained as a result of that stop.

Stopping a car is a seizure in the constitutional sense. The police are not allowed to stop a car without witnessing a civil motor vehicle infraction or having probable cause or reasonable suspicion of criminal activity. In this case, what evidence did the detective have to support his stopping of the car?

Eysie must have had some suspicions about Cruz, otherwise he would not have been following him. Those suspicions could not have amounted to much, otherwise he would have stopped and arrested Cruz before he got to Home Depot. So the reason for the stop must have been the so-called "meaningless drive." How is driving around a parking lot evidence of criminal activity? Other than a hunch that turned out to be accurate, there did not appear to be anything else to support the stop of Cruz's car. And hunches do not amount to adequate grounds to step over the protections against unreasonable searches and seizures that the constitution provides.

If this analysis is correct and the warrant for Cruz's home was based upon the stop in the parking lot, then that evidence will also be suppressed.

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Marijuana Charges Brought After Another Brookline Police Smell Test

Marijuana leaf1.jpgBrookline Police brought marijuana (Class D) distribution charges against Kevin Nguyen yesterday after he was pulled over under suspicion of having a warrant out for his arrest. According to the Brookline Patch, an officer "ran a query on a vehicle that came up that the driver had an active warrant." The officer stopped the car, identified Kevin Nguyen as the driver, and arrested him on the outstanding warrant.

The police then performed an "inventory" search of the car. This is police policy. All items of value must be listed on an inventory form and held for safe keeping. The police have this policy to protect themselves and tow drivers from potential claims of missing valuables. If done according to procedures, courts will not view these searches as violations of privacy rights. They may, therefore be done without a warrant, or probable cause.

In this case, however, the nature of the search changed. The Brookline Officers conducting the inventory, "allegedly detected the fresh odor of marijuana coming from inside the vehicle but nothing was found." This is impressive. Just last week I wrote about officers from this same department detecting such an aroma, and here they do it again. It is not clear if the same officer was involved in both arrests.

In any event, the car had to be towed and it appears that its first stop was not the storage lot, but the police station. There, a "K9 unit was put into the car." In other words they let a drug sniffing dog climb in. The dog "located a scent," and "[l]ater, the police allegedly found a small brown Gucci bag full of cash, about $9400, and about 6.7 ounces of marijuana in a white shopping bag." How much later, and why it took additional time is not stated in the article.

Issues/Comments:

Odor of Marijuana. Unlike last weeks blog, there appears to be at least some corroboration behind the charge of having an intent to distribute. The volume of marijuana is not extreme, but may weigh against a claim of personal use. I should point out once again that the proposed medical marijuana regulations suggest that ten ounces should be considered a sixty day supply, unless the prescribing doctor were to suggest more. But here, there is also the cash. The weight and the cash are not conclusive but support the charge from a prosecution perspective. Kevin Nguyen's side, however, has not been heard yet.

Search and Seizure-- the stop. Kevin Nguyen's defense will likely take a close look at whether there is a viable motion to suppress. As always, this is best viewed in a chronological sequence. First, did the police have constitutional justification to stop the car? At a glance this looks obvious - he had a warrant. But, the police did a query on the vehicle's registration. I doubt, however, if the officer identified Nguyen before making the stop. Just because the registered owner of a car has an active warrant does not mean the registered owner is driving the car.

Search and Seizure -- the non-inventory search of the car. The next inquiry is whether the thorough search of the car was constitutionally justified? The inventory was supposedly routine. But, what about the tow to the police station and dog sniff. What was this police action based on? Was it based on the officer smelling a "fresh odor of marijuana?" Would that amount to probable cause to believe that the car contained marijuana? The article does not say where the police found the evidence. Why didn't they find it during the inventory? Was the evidence in a secret "hide." If so, did the police have sufficient probable cause to start taking the car apart? Assuming, for the sake of argument, that they did, why didn't they get a warrant? They had the car in their possession, and Kevin Nguyen was locked up. There was no rush since the car was not going anywhere. Why not present their probable cause argument to a magistrate in the Brookline District Court (which is right next door) later in the morning. The law requires warrants unless there are circumstances justifying a search without one. I don't see those circumstances here.

Marijuana Legalization. Obviously, the police must enforce the law, but whether one supports marijuana legalization or not, these charges are getting harder to take seriously. At present the state is only considering legalizing medical marijuana and entities seeking licenses to become distributors must be "not for profit." But, how long will it be before possession of any amount is legal without a prescription? Why are organizations clamoring for these licenses if there is no profit? Surely the administrators will be taking a salary. Is there any cap on the salaries for principals of these non-profit organizations? No. Are these groups interested in public service and breaking even? I think not. Will these licensees be first in line in the event of wholesale legalization? What will their profits be then? And how will people like Mr. Nguyen feel about that?

This blog is actually many times longer than the short story in the Patch. And I trust that there is a lot more evidence to be analyzed on Mr. Nguyen's behalf. If he has not done so already, he should have an experienced criminal defense attorney look into this as soon as possible.

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Marijuana Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws

marijuana.jpgMarijuana charges were brought against a couple after a traffic stop in Brookline early Sunday morning. According to the an article in the Milton Patch, Catherine Burns was driving her car with her date, Armond Smikle, as a passenger when the Brookline Police allege that she drove through a stop sign. The officer conducting the stop approached the vehicle and claimed to have smelled a strong odor of alcohol "emanating from Burns." The officer also alleged the usual symptoms - slurred speech and eyes that were bloodshot and "glossy."

The article then states that the officer "went to check their licenses." This is interesting. Why would the officer take Smikle's license? The law does not require that passengers carry identification, or even provide it to the police. Perhaps -- and this may be wishful thinking -- the officer was anticipating that the driver may be arrested and he wanted to know if he could let Smikle take the car and avoid the tow. After all, at that stage, there was no reason to suspect the passenger of a crime. Unfortunately for Smikle however, that changed almost immediately.

While checking the licenses the officer claims to have seen the couple reaching around to the back seat of the car. He also said that Smikle opened the door. All of this could have been innocent activity, but during an early morning stop, the police take no chances. The officer called for back up.

A bad situation got worse when one of the responding officers smelled "fresh marijuana" in the car. This is somewhat surprising. I know that many police officers are trained to recognize the particular scent of marijuana, but in circumstances like these it is amazing that an officer was able to make this detection. They were out on the streets of Brookline in the early morning hours with a woman who was giving off a strong odor of an alcoholic beverage, and an officer was able to individualize the scent of fresh marijuana coming from the same area. If there were large trash bags full the crop in the vehicle this would make more sense. But, the police would find only 2.9 ounces in the center console, which I assume was wrapped in plastic. Stunning. Their drug detection dog performed a follow-up sniff and only came up with a "smoking device." It is unclear how that device escaped the officer's scent-assisted inspection. After all, the pipe must have been used, otherwise the dog would not have focused on it, and as such one would expect an odor even stronger than that of raw marijuana.

The police charged Burns with Operating Under the Influence of Alcohol, and charged them both with Possession of Marijuana with the Intent to Distribute.

Why has the couple been charged with having an intent to distribute marijuana? It is not even a crime to possess an ounce or less, and there was not all that much more than that in the center console. There were no large sums of cash, scales, or packaging materials to support an inference of distribution. Sometimes it appears that, in light of decriminalization, prosecutors have forgotten that it is still a crime to possess more than one ounce. Should that not be the charge? Every amount over an ounce does not signify an intent to distribute. And the pipe indicates that someone in the car most likely intended to smoke it, not sell it.

Moreover, Smikle would be correct in wondering why he has been charged with having anything to do with the marijuana it at all. Where is the evidence that he possessed it? Even if he shared the officer's sense of smell, and thereby knew that there was pot somewhere in the car, that knowledge does not go very far towards proof that he possessed it, much less that he was contemplating any sales.

What about the smoking device? The article described it as "plastic and hollow." Apparently they were not charged with possession of drug paraphernalia. This, by the way, is still a crime in Massachusetts. Will medical marijuana patients violate this law if they chose to use a pipe instead of rolling their own?

Putting aside the OUI charge, how would the case of Burns and Smikle look if either one of them had a valid prescription? For an answer a good place to start would be the proposed medical marijuana regulations, which allow for a medical marijuana patient to possess a sixty-day supply. The proposed regulations suggest that 10 ounces would be a reasonable sixty-day supply. That is, unless a physician determines that a patient needs more. How does 2.9 ounces denote an intent to distribute when 10-plus ounces is a reasonable sixty-day supply?

For one thing, I suppose we must have faith that medical marijuana use is very different from illegal recreational use. Prescription holders are expected to take their doses incrementally over time to address their diagnosed symptoms. Prescription holders are expected not share or sell their medical marijuana. Prescription holders are expected to refrain from driving under the influence of marijuana. And prescription holders are expected to possess only non-criminal ingestion devices.

Those accused of failing to follow medical marijuana rules and those without prescriptions would be well advised to seek experienced criminal defense counsel.

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Drug Charges May be Transferred from Wrentham District to Norfolk Superior Court

cash.jpgNorwood Police Officers arrested Jorge Vega on drug charges last week after a Norfolk County Police Anti-CrimeTask Force (NORPAC) investigation. According to the Norwood Patch, the task force had been watching Vega and eventually saw him involved in a transaction with another individual from whom they seized cocaine. A week later they successfully applied for a search warrant from the Dedham District Court. The warrant allowed them to search two vehicles "related to Vega" and Vega's Brockton home. The article implies that the police arrested Vega at the time of the search. They seized $30,000 in cash, but no drugs. He was charged with Subsequent Offense Distribution of Cocaine and Operating with a Revoked Driver's License. He was arraigned in the Wrentham District Court and held on $25,000 bail.

It is not clear if they found the money in the home or one of the cars. This and many other facts will make a difference. If found in one of the cars, how were the cars "related to" Vega? Did he own them or did someone else? Were the cars "related to" anyone else? What justification did the police have for getting a warrant for the cars? Since he was charged with a operating after suspension, it appears that his arrest followed a traffic stop. If the police found money in a car, defense counsel will explore these issues and likely file a motion to suppress.

If the police found the money in the home, where in the home? In an area that was "related to" Vega only? Or did other people live in there? Did someone else possess the money? The police obviously believe that it is drug money, but it is just money and we all hope that there is no crime in having a lot of it. The same search and seizure issues will apply here. What was the probable cause to justify the search of his home in Brockton? The sale must have happened in the jurisdiction of the Wrentham District Court, because that is where he was arraigned. If they found drugs at his house he would have been arraigned in the Brockton District Court.

There is plenty to work to do on the issues surrounding search and seizure. However, they only found money and that is not the main component of the case. The actual charges will hinge on the alleged sale of cocaine a week prior to the arrest. So what are the trial issues? If the buyer does not testify, her words to the police will be inadmissible hearsay. And I doubt that she will be willing to testify against Vega because that would involve self incrimination. So, it will be up to the police to prove the one alleged sale based solely on their observations. Could it be that they witnessed innocent activity and were predisposed to believe it was a drug sale. Without the buyer, who can actually say where she got the cocaine. The case, therefore, may not be as strong as it seems.

There are two reasons that this case may be headed for indictment and transferred to the Norfolk Superior Court. First of all, the article states that Vega has been charged with a Distribution (Subsequent Offense). There is no jurisdiction in the Wrentham District Court for this charge. Secondly, Vega has other drug charges pending in the Norfolk Superior Court and the District Attorney may not want to proceed against him to two locations.

In any event, I trust that Mr. Vega has much needed experienced criminal defense counsel on side.

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Felony Drug Charges Appear Excessive for Norwood Couple After Cape Arrest

December 31, 2013

images.jpgThe Truro Police stopped and arrested Lawrence and Susan Pandolfo of Norwood as they drove on Route 6 in Truro last Friday afternoon. According to the Cape Cod Community News an officer - traveling in the opposite direction -- thought they were speeding, turned around, and pulled them over. Both of the Pandolfos provided valid driver's licenses. Because Lawrence had recently purchased the car, however, the registration was not in order and the car had to be towed.

With the assistance of back-up officers, the Pandolfos were then frisked for weapons. The Community News article does not give any explanation as to why these two had to be frisked. Nor can I imagine one. Equally inexplicable was the subsequent search of Ms. Pandolfo's purse. Inside they found an "envelope containing an undisclosed quantity of $20 bills." So far, we have a couple in a car that may have been speeding without a valid registration while in possession of money.

An "inventory" search of the car, however, turned up open containers of alcohol, prescription pills, an "undisclosed amount of marijuana," narcotics (6 brown cubes) "packaged for sale," two pipes, and some bottles and cans of alcohol. All that certainly makes things look worse, but it does not appear to support the criminal charges -- Possession of Marijuana with Intent to Distribute; Possession of Class B Substance With Intent to Distribute; and Possession of Class C Substance With Intent to Distribute.

Since no one was offering anything for sale, the prosecution will have to look elsewhere for proof that either or both of the Pandolfos intended to sell anything. That proof not only appears to be lacking, but much of the evidence points in the opposite direction. In fact, I would argue that the recovered evidence is more indicative of a party than a sales mission.

It was Friday afternoon (pay day) between Christmas and New Years and Ms. Pandolfo had twenties in an envelope. Not tens, fives, ones, or a combinations consistent with low level drugs sales. The prosecution may speculate about whether the twenties were from one larger level sale but that amounts to nothing. A connection between the drugs and the money is non-existent. If this case goes the way it should, the Pandolfos should be prepared to file a motion for return of the money.

The volume of drugs does not necessarily indicate an intent to sell either. There were six hard cubes of a Class B substance. The article does does not say how big the cubes were, just that they were "packaged for sale." There is no distinction, however, between something that is packaged for sale and something that is packaged for purchase. If someone buys something that had been packaged by a seller, that is how it is going to look, right?

As for the prescription pills, it is not even clear at this point whether the Pandolfos had a valid prescription. There is no law against taking your medication out of the marked bottles and combining them into a single bottle. And even if they did not have prescriptions, just having them does not mean they were for sale.

There were three individually wrapped bags of an undisclosed amount of marijuana. If it were large bags of marijuana, I'm sure that the police would have portrayed them as such. I have a suspicion that the amount recovered weighed less than an ounce and as such was not even criminal to possess.

Tellingly, the police found empty and full containers of alcohol and two pipes. Again, entertainment or enterprise?

There are other issues for defense counsel to explore vigorously. Was the stop and were the searches constitutionally permissible? Are both parties equally guilty? Having the same name and being in the same place is not enough.


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Norwood Police Seeking Charges Against Landlord for Tenants' Activities

According to a recent article in the Patch, the Norwood Police will be filing criminal charges against the landlord/owner of rental property on Sturtevant Avenue because tenants have been involved with marijuana.

Henry Samuels (age 24) and his mother, Lashauna Peltway (age 40) live in apartment number one at 15 Sturtevant Avenue. Last August the police arrested Samuels at the apartment for selling marijuana to "two school age kids." According to the article, at the time of the arrest, the police "put [the landlord] on notice that further action from them was required in regards to eviction of tenants." (Does this mean that the police officially told them to evict the offenders? If that is the actual notice given, it is pretty weak.) The story also implies that since that arrest the police have been investigating Samuels.

The article states that the police executed a search warrant at the apartment, but it does not say when this event took place. We may assume from the June 7 date of the article that it was recent. During the search, Peltway was present, but Samuels was not. Both, however, will be charged in the Dedham District Court with Possession of Marijuana with intent to Distribute "based on the drugs seized." In addition, Peltway will be charged with "being the Keeper of a Disorderly House."

The article correctly cites the statute that the police will use against the landlord as Chapter 139, section 20, but misquotes the statute's wording. In criminal law, the true language of a statute is crucial because that language must be applied when the court decides whether to issue a criminal complaint.

The applicable terminology is: "Whoever knowingly lets premises owned by him, or under his control, for the purpose of . . . the illegal keeping, sale or manufacture of controlled substances . . . or knowingly permits such premises, while under his control, to be used for such purposes, or after notice of any such use omits to take all reasonable measures to eject therefrom the persons occupying the same as soon as it can lawfully be done, shall be punished . . . ." (emphasis added).

So a prosecution under this section has three options. By proof that the landlord leased the premises for the purpose of illegal drug activity, or by proof that the the landlord knowingly allowed it to be used for such purposes, or by proof that the landlord failed to take reasonable measures to evict the tenants after being notified of the drug activity.

The first option is unlikely. It is inconceivable that the landlord leased the apartment to Peltway for the purpose of marijuana sales. The second two appear to be somewhat easier to prosecute. If a landlord is put on notice of illegal activity, and the landlord does not take reasonable measures to evict the offenders, the landlord may be in violation of the statute. There are, however, many questions to consider.

Who must give "due notice? The police? If so, is it enough for the police to describe allegations against a tenant to a landlord? Is it fair to give the police the power to force the commencement of eviction proceedings based upon hearsay? What kind of evidence should the police have to justify their giving "due notice."

What form of notice is required? Is written notice necessary, or may the police just stop by and tell a landlord that the rental property is being used for illegal purposes? Should the notice contain specific allegations of continuous crimes? If so, I would think that it should be in writing and it should give specifics.

The statute is entitled "Aiding or Permitting Nuisance." Nuisance implies ongoing activity. How much illegal activity is necessary? Would one event be enough? Two? Was Samuels convicted as a result of the 2012 arrest? How did the evidence recovered in the raid support charges against both Samuels and his mother?

How much time is reasonable to evict a tenant in situations like this? Does the law of landlord/tenant provide for an expedited process? Who else lived in the apartment? Were there young children living there too? If so, should they be the subject of an eviction under these circumstances? Had the landlord done anything in reaction to receiving the notice in 2012? Would a good faith warning be enough to avoid a chapter 139 charge?

As usual, the language of this law leaves many questions unanswered. I expect that they will be addressed by one of the excellent clerk magistrates at the Dedham District Court and therefore be examined carefully, professionally, and with fairness to all parties.

The landlord would be well advised to have an experienced criminal defense attorney with him/her at that stage.


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Marijuana Trafficking Suspects Appear to be Over Charged

Marij Bud.jpgThe Quincy Police have filed several charges including marijuana trafficking against a Quincy couple after an incident last Thursday. The story in boston.com reveals that the prosecution may have difficulties proving many of them.

It all started when a utility company decided to turn off services at a house on Norfolk Street. The company enlisted the help of detectives from the Norfolk County Sheriffs office to enter the house. There is no explanation for this. Perhaps it is the company's policy to have law enforcement on hand for this task. But, why detectives and why not local police? Defense counsel will surely explore whether of not there was a secondary law enforcement motive for entering the house. If so, then they should have had a warrant, and there may be grounds for a motion to suppress.

Back to the story. When the utility employee and the detectives arrived, there was a man spreading mulch outside the house. Apparently, neither the detectives nor the utility employee bothered approaching the man to discuss the utility situation. According to the article the man left "[w]hen police entered the house." So they saw the man in the yard, and just went into his house. Why not speak to him first? Why not ask him for the key? Why not tell him the reason for going in his house while he is spreading mulch outside? It also makes you wonder if the man was investing in mulch while failing to pay utility bills.

When the mulch man left, the detectives took note of his license plate. Again, if this was simply a utility shut off, why were they interested in the man's license plate at this point in time. I assume that the police had not discovered anything suspicious at the time that the man drove away. Was there more going on here? Was there a law enforcement motive to the entry of the house? There is no mention of whether the house was locked or not. Surely, absent some emergency, utility companies are not breaking down doors to turn off power. Strange.

In any event the detectives smelled "raw marijuana" when they went inside. After looking around, they found marijuana plants growing under lights. The Quincy Police and members of the Federal Drug Enforcement Agency then got a search warrant and eventually discovered 65 growing marijuana plants and 18 small dried marijuana plants.

The police eventually found the mulching man's vehicle in another part of town. They knocked on the door and two boys told the police that they did not know where their father was. The police, however, could see him inside and after initially refusing to do so, the man came out and was identified as Hao Vu. When the police started to question him, however, Vu ran off and tried to hide behind a restaurant. He was arrested and charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, Disorderly Conduct, and Resisting Arrest.

The police return to check on the boys and when nobody answered the door, they forced their way in and found Annie Vu in a bedroom with four children. Armed with information that the marijuana grow house was in the name of both Hao and Annie Vu, they arrested Annie too. She was charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, and Resisting Arrest.

Unless there is a lot more to this than what has been reported, these two have been grossly overcharged. Lets start with Annie. Just because she is on the deed or the lease from the marijuana grow house does not mean that she was involved with the growing. Where is the evidence that she was ever at the house while the plants were there? And conspiracy? The prosecution needs evidence that she and Hao agreed to distribute marijuana. Where is that evidence? How about resisting arrest? Refusing to answer the door and hiding in a bedroom is no where near enough evidence for that charge. One has to threaten a police officer or create a risk of injury to a police officer for this charge to be sustained.

Now lets look at the charged lodged against Hao Vu. Trafficking charges are based upon weight. For marijuana, the minimum weight is fifty pounds. How will the prosecution establish the weight of these plants? Will they weigh just the portions suitable for smoking? Surely, they don't have fifty pounds of "buds." What about the proverbial "stems and seeds." How about the actual roots? Moreover, will the police weigh the plants after a proper period of drying? If they don't dry the stuff and just put it in plastic bags, the moisture will cause their evidence to rot. There were a total of 83 plants. They would each have to weigh just under ten ounces to make the cut.

As for the conspiracy charge, again, I just don't see any compelling evidence that Annie and Hao got together on this. There's no mention of it in the article. The same analysis with regard to the resisting arrest charge applies to Hao. Running away is not enough, unless there is something about the run that would put the officers at risk of injury. Here, they said that he ran and tried to hide behind Quizno's. That's not going to do it.

Some have said that when you make the police chase you around they will have their revenge. Perhaps that accounts for the charge of Disorderly Conduct. What exactly did Hao do to merit this charge? When and where did he cause public inconvenience or alarm? It looks like they were throwing everything possible a these two. They will need experience legal counsel to sort this out.

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Drug Distribution Suspect Proclaims Confidence in His Attorney

cuffs on lawyer.jpgDrug distribution and drug possession charges were brought against two men in the West Roxbury Division of the Boston Municipal Court after the men were arrested in Roslindale on Wednesday. Dennis Reynolds of Attleboro was charged with selling heroin to Daniel Hancock of Walpole. Hancock was charged with possession of heroin. After being handcuffed, Reynolds allegedly said: "I'll beat this case like I beat my last case, wait till you meet my lawyer."

The Roslindale Patch reported that undercover Boston Police officers saw what they believed to be a drug transaction between the two men at the corner of Metropolitan Avenue and Washington Street. The Officers approached to investigate. The article states that Hancock then began to struggle with officers. There is no explanation as to why there was a struggle when the police were simply approaching to ask questions, but as so often happens when such a struggle ensues, Hancock ended up on the pavement in handcuffs. The police would later claim that there were 3 bags of heroin near where he lay.

No drugs were taken from Reynolds, but he had $134 in his pocket. So at this point the police had speculation that Reynolds had just sold drugs to Hancock (Or the opposite was about to happen). The situation got worse, as it usually does, when the accused men agreed to speak to the officers. The men were likely separated and gave "contradictory statements about the money." The article says that the men initially said that the met to settle a debt. The article does not contain the contradictory information.

Back at the police station, Reynolds apparently called his girlfriend -- not his lawyer -- and said "Baby shut off my phone they have my phone." It seems that she was unable to do this quickly enough as the officers claimed to have received one call and one text from people seeking to buy drugs.

So, will Reynold's lawyer have a chance of beating this case? If he had called his lawyer first, he or she would surely have told him refrain from making incriminating statements. Although Reynold's words are technically hearsay, most of them are admissible against him in court. The prosecution will likely be able to admit the conversation with his girl friend and that is not helpful to his defense. The same applies to his statements about the money. Fortunately for him (and his lawyer) the prosecution will not likely be able to use his complimentary description of his lawyer because it contains reference to a prior case. Jurors may not know of a person's prior conviction of similar charges because they are only supposed to focus on the facts before them.

So what will they have before them? If not for the words and actions of the two men after the police approached, the case would consist of police speculation that they had witnessed a possible drug deal. Surely defense counsel will challenge the admissibility of the phone call and text message on illegal search and seizure grounds, and should prevail. It may come down to just what the officers saw. Will they be able to say who was the seller and who was the buyer? After all, it could go either way. And that is reasonable doubt.

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Drug Charges In Quincy District Court May Be Hard to Prove

Quincy Court.jpgDrug distribution charges were brought against Hermino Nieves on Monday after the Quincy Police saw what they believed to be a drug deal in a parking lot off Willard Street. The charges, however, may be difficult to prove.

According to Boston.com someone called the Quincy Police on Monday around 12:43 p.m. "about a possible drug transaction in the parking lot behind 796 Willard Street." Police officers responded and saw "a car meet up with another car. . . . The suspects appeared to make an exchange of some sort, and then part ways."

The police followed a woman that they thought was the buyer. The story does not elaborate as to how they reached this conclusion. In any event, they stopped her car and she was "allegedly holding a bag [of heroin]" The story does not say why the woman was stopped or whether she was holding the bag out in plain view as the officers approached her car.

The police also followed the alleged seller -- Nieves -- and conducted a "traffic stop." This term seems to indicate that Nieves committed some sort of driving offense, but, again, the story does not elaborate. The police searched his car and found cell phones and $180.00, but no contraband.

Issues regarding search and seizure. Motion to Suppress.

1. What is meant by "an exchange of some sort?" After all, this may be the only reason for stopping Nieves. There is a genuine question as to whether or not this observation provided the police with adequate legal justification to stop his car. Stopping a car is a seizure and must be constitutionally justified. In other words, the police needed adequate information to believe that there had been a crime. Seeing what could easily have been an innocent interaction is not enough.

2. Was there some other reason to stop the car? It may be that the police will avoid issue number 1 by claiming that Nieves committed a motor vehicle infraction which gave them a good reason to stop him.

3. What justified the search of Nieves car? Even if there was a valid reason to stop Nieves for a traffic violation, the police should have simply given him a ticket and allowed him to leave unless they had enough information to search. It may be that the officers who stopped the woman called the officers that stopped Nieves and told them about the heroin that they found. If they had not yet received such a call, the search was questionable.

These issues must be raised by defense counsel in a Motion to Suppress. If successful, the case against Nieves will be dismissed.

Issues of Proof. Trial

At first glance one may be convinced that the case against Nieves is strong. A defense attorney sees things differently because he or she must look at the proof needed and the likelihood that the proof will be available at trial.

Here we have the police assuming that Nieves was the seller. The fact that the woman possessed heroin points in that direction, but not provide proof beyond a reasonable doubt. If the woman told police that Nieves sold her the drugs it strengthens the case, but we must then consider whether she will be available to testify. Her statement to the police is hearsay -- the police may not repeat it during Nieve's trial. For the jury to hear this information, the woman must appear and testify. This is unlikely because she has her own criminal charges and will not want to incriminate herself. Moreover, her reliability and willingness to cooperate under these circumstances is doubtful.

A defense attorney will exploit these weaknesses and give Nieves a good chance at acquittal. Reasonable doubt.


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Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car

script.jpgThe Norwood Police received a call from TJ Max last week after store employees saw two people removing security tags from merchandize. According to the Transcript and Bulletin, when officers arrived at he store the suspects were still inside. The man, Ergin Abaz, had a shopping bag containing merchandise. The woman, Christin Quattrucci had some goods in her pocketbook. The police arrested both of them for shoplifting. The article states that the police also found pill bottles and a doctor's prescription pad in Quattrucci's possession.

The police then searched their car. They found a "tote bag" that allegedly belonged to Abaz, and they searched that too. Inside they found "drugs and doctor's prescription pad." The doctor's name on the pad matched the name on Ms. Quattrucci's bottles.

Mr. Abaz and Ms. Quattrucci were arraigned in the Dedham District Court on Monday. These are the charges:

Abaz. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class B Drug with Intent to Distribute, Possession of a Class B Drug, and Possession of Class C Drug with Intent to Distribute.

Quattrucci. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class E Drug, and Possession of Marijuana.

These are some observations and areas of concern from a defense perspective:

Why were the police searching the car? Does a shoplifting arrest give the police probable cause to search the car for evidence of the crime? Not likely. I suspect that the police explanation will be as follows: The two were arrested and would not be able to drive away. The car needed to be towed. It is police policy to do an "inventory search" to secure any valuable contents. But, who is to say that the car needed to be towed? Isn't it possible that one or both would bail out of the police station? After all, at that point they were just charged with shoplifting. The police station at 137 Nahatan Street is practically right across the street from TJ Max at 146 Nahatan. If they made bail they could walk over and drive away. Hence, no need for a tow, and no need for an inventory search.

Even if the call for a tow were justified, defense counsel will surely seek information to determine whether an inventory actually took place. If so, the police would have filled out an inventory form with a list of the items found. The absence of such a form may indicate that the search was not an inventory, but a search for evidence. Without probable cause or some other justification such a search would be a constitutional violation.

A motion to suppress will expose an invalid search, suppress the items found, and result in dismissal of the charges related to the search.

Where is the evidence of a conspiracy to violate the drug laws? A conspiracy conviction would require proof that they made an agreement to do something illegal. The article seems to imply that Abaz and Quattrucci were writing their own prescriptions. However, there does not appear to be any proof of that. Moreover, there does not appear to be any proof that they had any agreement to do it. Being in each others' company with the drugs and prescriptions is not enough to prove an agreement.

In any event, there is very little chance that a conspiracy trial will take place in the Dedham District Court based upon these allegations. Procedural rules do not allow for a conspiracy trial to take place at the same time as trial on the other charges unless defendants agree. The prosecution generally does not want two trials when they may get what they want from one.

Finally, why has Abaz been charged with having an intent to distribute drugs at all? A large volume of drugs may support this, but there is nothing in the article about volume. Nor are there any other indicators such as drug sale records, packaging materials, or large amounts of money. These drugs could just as easily have been for Abaz's personal use.


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Search and Seizure Issues in West Roxbury Auto Stop and Drug Arrests

suboxone.jpgTwo men will be prosecuted on drug charges in the West Roxbury Division of the Boston Municipal Court as a result of an automobile stop last week. According to the West Roxbury Patch undercover Boston Police Officers saw Robert Clarke using his cell phone outside the Washington Street Burger King around 8:15 p.m. The officers apparently knew Clarke from previous drug-related arrests. Eventually, Michael Dixon drove up and Clarke got into his car.

The pair headed West on Washington Street towards Dedham and the police had trouble keeping up with the speeding car. The police allege that the car stopped at the Grove Street red light and the men leaned towards each other. The light changed and the car did not move. The undercover officers allege that they watched the men and eventually sounded their horn. By that time, however, the light had changed back to red, and Dixon drove though the intersection anyway.

The police pulled Dixon over, ostensibly for speeding and running the red light. According to the Patch, they ordered the men out of the car, pat frisked them and searched the car. The article says that the police recovered eight pills in the car and some pills, a pill bottle, and $280.00 "in one of the suspect's pockets."

Clarke was charged with possession of class B and C drugs. Dixon was charged with distribution and possession with intent to distribute class B and C drugs.

ISSUES:

Just because a person has a drug history does not mean that the police may stop and search them at any time. Here, there was a little more than just that, but was there enough? A man (with or without a drug history) on his phone outside a restaurant getting picked up for a ride is not enough to stop and search. So the police followed to see if anything was going on.

The legal questions will be: 1. Did they see enough to warrant the stop of the car? 2. Did they see enough to warrant the order for them to get out of the car? Did they see enough to search them and search the car?

Obviously, if the driver committed the motor vehicle offenses, the police were justified in stopping the car. As with many allegations of civil motor vehicle violations, the driver may not agree that he was speeding and may not agree that the light was red when he went through the intersection. If the driver contests these allegations and prevails, then the stop would be unjustified and the drugs suppressed. In my experience, however, this is a long shot.

The other questions are closer calls. A valid stop, without more, does not give the police grounds to order people to get out of their vehicle. A ticket should be issued and the occupants should be allowed to go on their way. So what more did the police have? The men were allegedly leaning towards each other at the light. This could have been a drug deal, or it could have been any other innocent behavior. The men will need experienced defense counsel to demonstrate to the judge at a Motion to Suppress, that this does not justify the exit order.

"Pat downs," are usually justified as being necessary for the officers' safety. They are performed to determine if a person has a weapon. Here there did not appear to be any reason for the men to be out of the car, nor did there appear to be any reason for the officers to be afraid that they may have weapons.

Why were the police searching the car? There is a big difference between a police suspicion and probable cause to search. Obviously the police suspected Clarke because of his history, and they will say that using a cell phone to contact a dealer is a common practice. They will also say that the men leaning in together over the console
looked like a drug deal. All this adds up to a suspicion. These observations,clearly, could be innocent behavior that do not add up to probable cause. Zero plus zero equals zero. Should every person that uses a cell phone for a ride who gets in a car and leans towards the driver at a red light, be ordered out of the car and searched? Should every person that provides the ride in these circumstances, have his car searched?

These are just the search and seizure issues. What about the issues of drug dealing? Where is the evidence that Dixon sold drugs? Where is the evidence Dixon possessed drugs with the intent to distribute them? Having eight pills and $280 may not be enough.

In any event, this case is not as open and shut as it may first appear, when scrutinized with an eye towards defending the accused men.

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Operation Under the Influence Charges Against ER Doctor Has Video Evidence

November 17, 2012

video camera light post.jpgDedham District Court issued a Criminal Complaint for Motor Vehicle and Drug Possession charges against Newton-Wellesley Hospital E.R. doctor, Kristin Howard, on Tuesday as a result of a car crash Friday morning that was captured on video.

That video recording from a traffic light camera shows her car coming out of a parking lot and crashing into another car on State Street in Wellesley. This video has made national and international news. Commentator, George Stephanopoulos described the video as "heart stopping".

This exposure is sure to have an effect on the case. In fact, to some extent, it already has -- at arraignment,an experienced and well respected prosecutor asked for bail in the amount of $10,000.00. When one considers that the purpose of a cash bail is to ensure that an accused will return to court and not run away, the incongruity of this request becomes apparent. Was there really a chance that a well know physician would throw everything away and flee because of an OUI charge in the District Court? Since the Wellesley Police arrested her after the Friday morning accident, she must have been released from the Wellesley Police Station and must have come to court of her own volition. At the station a magistrate likely reviewed the situation and made the correct assumption that she could be trusted to arrive in court on Tuesday. After arraignment and bail arguments the Dedham District Court judge agreed and released her on her own recognizance to return again in January.

What about the charges? Boston.com has the most detailed news story. According to their report Doctor Howard was charged with Operating Under the Influence of Drugs and Alcohol, Operating to Endanger, Leaving the Scene of an Accident Causing Property Damage, and illegal Possession of Prescription Pills. The article describes the doctor driving in a parking lot, hitting a truck, backing up into a fence twice and then accelerating into the street and hitting a car stopped at the traffic light.

The police claimed to have smelled alcohol on her breath, hence the OUI Alcohol charge. They found prescription drugs in the car, hence the OUI Drugs charge and the drug possession charge. Striking the fence and the truck followed by accelerating into the street allegedly supports the charges of Leaving the Scene charges.

But there is no mention of an alcohol breath test, and only a single reference to a field sobriety test. Would it be reasonable to expect an operator to perform a road-side balancing type test after such a crash? No matter how "heart stopping" a video is, it does not prove everything.

There may or may not have been damage to the fence or the truck. If she tapped them and did not damage them, she may not be convicted of leaving the scene of property damage. This will be explored by defense counsel. Moreover, the prosecution will require witnesses to prove that she stuck anything. It is not on the video.

As for the prescription drugs, they may have been in her car, but were they in her system? Was there a blood test? Even if the drugs were in her system, did they cause her to drive the way she did? The prosecutor said that she wrote the prescriptions to herself, and that "raises some flags." Self prescribing is not actually a crime, but it invalidates the prescription and makes possession of the drugs illegal.

At least one article quoted Doctor Howard as telling the police that the car had a mechanical malfunction. The police also claimed that she initially said she was going to work, and then said she was going home from work.

One poster on the ABCnews.com site asked this question: "Why do people plead NOT guilty when they are CAUGHT both on video CRASHING into another vehicle, they found drugs that had been prescribed to HER by HER AND she initially LIED about where she was going[?]" This illustrates the prejudicial effect a video may have on a case. The video appears to be damning, but it does not prove all the elements of all of the charges. I trust that Doctor Howard has experienced defense counsel to sort though it all.

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Dedham District Court Arraignments for Men Caught in NORPAC Drug Bust

mushrooms.jpgThe Norwood Police and members of the Norfolk County Police Anti-Crime (NORPAC) task force broke down the door at 110 Pellana Road, Norwood on Wednesday and arrested four men inside. According to Boston.com, and the Norwood Patch, the police had a warrant based upon upon information that the resident, Stephen Petrosh, had been selling marijuana. They attempted to execute the warrant (search the place) by knocking first. The police said that they could see people inside that were not responding to their knocks, so they broke the door down.

When they got inside, the officers found Petrosh along with three other men: Joseph Carbone, Joseph Spaziani, and Justin Schrekenghaust. They also found LSD, Psilocybin (mushrooms), marijuana, Ritalin, Lyrica, Varenicline, weapons, ammunition, cash, scales and other drug paraphernalia.

Petrosh, Carbone, and Spaziani were each charged with possessing the drugs (except the prescription medication) with intent to distribute them as well as unlicensed possession of ammunition. Schrekenghaust was only charged with possession of LSD. Apparently, none of the alleged weapons were illegal. Petrosh also has a drug case already pending in the Concord District Court. All of them made bail and were due in the Dedham District Court for arraignment the next day.

Issues:

1. I expect that the search warrant was based upon Petrosh's alleged sales to a cooperating informant. It should be noted that unless that informant is identified, there will be no charge for that sale, and evidence of that sale will not come into evidence against Petrosh's. Nor will the evidence of his pending case be allowed into evidence. So proof of an intent to distribute must be based on the amount of drugs found (the articles do not reveal this information) and the other indicators of distribution -- usually scales, money packaging materials, notes/ledgers, etc.

2. Each man arrested stands in his own unique defensive position. Surely, each would be well advised to retain experienced defense counsel. Presence in the apartment is not sufficient to prove possession of drugs, or an intent to distribute them. The articles do not divulge the reasons that the police charged three men with possession with intent to distribute, and one with simple possession. One or more of the three men with the more serious charges may not have actually possess the drugs at all. It could be that the police lumped them all together for the Dedham District Court to sort out.

3. Although Petrosh made bail and was allowed to walk into the Dedham District Court on Thursday morning, there is a fair possibility that the prosecutors there would try to be sure he did not walk out. This is because of his pending case in Concord. The Concord District Court probably gave him a "bail warning" - explaining that that if he were arrested while awaiting trial, he could be held for up to 60 days without bail. If so, the law would allow the Dedham District Court to revoke his Concord District Court bail, and lock him up. If Petrosh spoke with counsel in advance, he would have been prepared and may have retained his liberty.

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New Sentencing Legislation a Double-Edged Sword

prison cell.jpgLast week the governor signed a law entitled "An Act Relative to Sentencing and Improving Law Enforcement Tools." This has also been called "Melissa's Bill" and "TheThree Strikes Law." The law dramatically increases certain sentences, and moderately decreases others. Essentially those convicted of multiple felonies receive harsher punishments, and those convicted of certain drug-related crime receive lesser punishment. Here are some provisions:

SENTENCE INCREASES - FELONIES

  • For a prisoner serving a life sentence to be granted parole, two thirds of the parole board must agree. Previously a majority vote of the board could grant parole.
  • Prisoners serving more than one life sentence are no longer eligible for parole.
  • Anyone convicted of a felony who had previously been convicted of two felonies and imprisoned for at least 3 years for each must receive the maximum sentence. Parole will only be available after two thirds of this sentence has been served.
  • Anyone convicted of a violent felony who had previously been convicted of two violent offenses (there are 42 listed) and imprisoned for at least 3 years for each must receive the maximum sentence and will not be eligible for parole. This creates a situation where there are now 17 crimes (in addition to first degree murder) that carry a life sentence without the possibility of parole.

SENTENCE DECREASES - DRUG RELATED CRIMES

TRAFFICKING COCAINE

Old Law
Between 14 and 28 grams punishable by mandatory minimum 3 years.
Between 28 and 100 grams punishable by mandatory minimum 5 years.
Between 100 and 200 grams punishable by mandatory minimum 10 years.
Excess of 200 grams punishable by mandatory minimum 15 years.

New Law
Between 18 and 36 grams punishable by mandatory minimum sentence of 2 years.
Between 36 and 100 grams punishable by mandatory minimum sentence of 3 ½ years.
Between 100 and 200 grams punishable by mandatory minimum sentence of 8 years.
Excess of 200 grams punishable by mandatory minimum 12 years.

TRAFFICKING HEROIN

Old Law
Between 14 and 28 grams punishable by mandatory minimum 5 years.
Between 28 and 100 grams punishable by mandatory minimum 7 years.
Between 100 and 200 grams punishable by mandatory minimum 10 years.
Excess of 200 grams punishable by mandatory minimum 15 years.

New Law
Between 18 and 36 grams punishable by mandatory minimum 3 1/2 years.
Between 36 and 100 grams punishable by mandatory minimum 5 years.
Between 100 and 200 grams punishable by mandatory minimum 8 years.
Excess of 200 grams punishable by mandatory minimum 12 years.

TRAFFICKING MARIJUANA

Old Law
Between 100 and 2,000 pounds punishable by mandatory minimum 3 years.
Between 2,000 and 10,000 pounds punishable by mandatory minimum 5 years.
Excess of 10,000 pounds punishable by mandatory minimum 10 years.

New Law
Between 100 and 2,000 pounds punishable by mandatory minimum 2 years
Between 2,000 and 10,000 pounds punishable by mandatory minimum 3 ½ years.
Excess of 10,000 pounds punishable by mandatory minimum 8 years.

SUBSEQUENT OFFENSE HEROIN DISTRIBUTION

Old Law - Mandatory minimum 5 years.
New Law - Mandatory minimum 3 1/2 years.

SUBSEQUENT OFFENSE COCAINE DISTRIBUTION

Old Law - Mandatory minimum 3 years.
New Law - Mandatory minimum 2 years.

SUBSEQUENT OFFENSE CLASS B (OTHER) DISTRIBUTION

Old Law - Mandatory minimum 5 years.
New Law - Mandatory minimum 3 1/2 years.

SCHOOL ZONE CASES

The new law makes no changes in sentencing for school zone convictions. The new law does, however, make substantive changes in the elements of a school zone violation.

Old Law - Anyone distributing drugs or possession them with the intent to distribute them at any time of day within 1000 feet of a school was committing a school zone violation.
New Law - Anyone distributing drugs or possession them with the intent to distribute them between the hours of 5 a.m. and midnight within 300 feet of a school will be committing a school zone violation.

RETROACTIVITY: The statute specifically states that anyone serving a mandatory minimum sentence at the time that this new law becomes effective "shall be eligible for probation, parole, work release and deductions in sentence for good conduct" under the new law.

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