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Federal Court Again Blocks Missouri College Drug Testing Plan

For the second time, a Missouri federal district court judge has granted a preliminary injunction blocking Linn State Technical College from drug testing all first-year and some returning students. The college had sought to implement the unprecedented drug testing regime in the fall of 2011, but had been blocked after the ACLU of Eastern Missouri filed suit on behalf of six students.

US District Judge Nanette Laughrey issued a preliminary injunction stopping the program and the reporting of early test results in the fall of 2011, but the 8th US Circuit Court of Appeals overruled her in January, finding her order too broad. The ACLU of Eastern Missouri then filed a narrower challenge, which Laughrey has now granted.

"Today's decision affirms the privacy and personal dignity of hundreds of students who were forced to supply their college with urine samples before they could take any classes," said Tony Rothert, the ACLU-EM's legal director. "Without a compelling need, a search of your bodily fluids is exactly the type of unreasonable search and seizure that the Constitution prevents the government from imposing."

Linn State had argued that it should be allowed to drug test students without any suspicion because some of its programs, such as aviation maintenance and heavy equipment operations, had a public safety component. But the ACLU-EM argued that its program was overly broad, and in granting the preliminary injunction, Judge Laughrey cited the testimony of a mechanical engineering professor at the college who said his students handled nothing more dangerous than pencils.

While the federal courts have allowed suspicionless drug testing in limited circumstances -- in occupations affecting public safety, among drug law enforcement personnel, and among limited sets of high school students -- they have generally deemed it a violation of the Fourth Amendment's proscription against unwarranted searches and seizures. The Linn State case is the first one known where a college sought to test a broad swath of the student population without any particularized suspicion.

The case will be argued in July. In the meantime, the preliminary order barring drug testing is in effect and suggests that Judge Laughrey will grant a permanent injunction then.

Jefferson City, MO
United States

Medical Marijuana Update

There is action in various state houses, Michiganders continue to tussle over their medical marijuana law, and there's an investigation going on in Maine. Let's get to it:

California

Last Thursday, the California Coastal Commission approved Imperial Beach zoning law changes that banned dispensaries from operating in the city. The city had approved the ban in July 2011, but action was delayed while opponents of the ban sought unsuccessfully to overturn it with a municipal initiative last November. The change in local zoning will not impact the ability for up to three people to form a collective to cultivate marijuana in Imperial Beach.

Maine

Last Friday, state officials said they were investigating a cultivation center that supplies the state's largest dispensary operator. The grow operation supplies Wellness Connection of Maine's four dispensaries, which all closed last week. A Wellness Connection spokesperson said the state was conducting "a comprehensive regulatory inspection" and that there was no connection between the investigation and the dispensary closings. State officials had no further comment.

Maryland

Last Friday, the governor's office suggested he would support a pending medical marijuana bill. Joshua Sharfstein, Gov. Martin O’Malley’s secretary of Health and Mental Hygiene, testified before lawmakers on Friday that a bill sponsored by Del. Dan K. Morhaim (D), a Baltimore County doctor, contained most of the provisions the governor could support. The bill would allow academic medical centers in the state to operate "compassionate use programs" beginning in 2016.

Massachusetts

Last Friday, the Massachusetts Medical Society called for research on marijuana's medical uses. The move signals an evolution in the thinking of the doctors' group, which had publicly opposed passage of the state's medical marijuana initiative last year. The group called for research to ensure that marijuana is subjected to the same rigorous testing as prescription drugs.

Michigan

Last Tuesday, a circuit court judge ruled that medical marijuana users can collect unemployment benefits. Ingham County Circuit Judge William Collette overturned a decision by a state commission that found a state-approved medical marijuana user, who was fired from her job after failing a drug test, was not eligible for the benefits. Collette ruled that the worker had already informed her employer of her medical marijuana use and the drug test "merely demonstrated what she had informed her employer of prior to the test -- that she uses medical marijuana."

Last Wednesday, police in Grand Rapids raided three dispensaries. Dispensaries were ruled illegal by the state Supreme Court last month, and the state attorney general has given local prosecutors the go-ahead to start shutting them down. At least one dispensary has already reopened, with the proprietor arguing that it is not violating the law because it requires caregivers to be present with patients during transactions. No charges have been filed yet.

Last Friday, a circuit court judge ruled that dispensaries are bound by local zoning laws. Washtenaw County Circuit Court Judge Archie Brown made the ruling in refusing dismiss a complaint against two Ypsilanti Township residents who are accused of growing more marijuana than the town's zoning ordinance allows. Under the Michigan Medical Marijuana Act, caregivers can grow up to 72 plants for patients, but township code only allowed the 12 plants approved for an individual patient. The case was the first court challenge to zoning laws restricting medical marijuana in the state.

Minnesota

On Wednesday, a Public Policy Polling survey found that 65% of state voters support medical marijuana. The results of the statewide survey come as state lawmakers prepare a bipartisan bill that would make it legal for Minnesota residents with debilitating medical conditions, such as cancer, multiple sclerosis, and HIV/AIDS, to access and use medical marijuana if advised to do so by their physicians. Its introduction is expected within the next two weeks, at which time details of the proposal will be made available. The poll found a strong majority (54%) of voters in the state would disapprove of their county sheriff or county attorney working to defeat such a bill, while only 24% would approve.Two-thirds (66%) think Gov. Mark Dayton should sign it if it is approved by the legislature.

Missouri

Last Friday, a medical marijuana bill was reintroduced in the state legislature. The bill, House Bill 688, would allow patients with debilitating conditions, such as HIV/AIDS, cancer, and multiple sclerosis, to use and possess marijuana for medical purposes if their doctors recommend it. The bill would put the question to voters on the November 2014 general election ballot.

New Hampshire

Last Thursday, a medical marijuana bill advanced in the House. The Health Human Services and Elderly Affairs Committee voted 14-1 to recommend that the full House pass the bill after amending it to block out of state patients from buying marijuana at the five dispensaries the bill envisions. Out of state patients could bring up to two ounces of their medicine with them. The amended bill also lowers the number of plants allowed from four adults to three and reduces the area of a legal grow site from 100 square feet to 50.

Appeals Court Ruling Throws Wrench in Maritime Drug Prosecutions [FEATURE]

special to Drug War Chronicle by Clarence Walker, freelancewriter82@gmail.com

America's war on drugs overseas was dealt a heavy blow in the federal courts late last year. In November, the 11th US Circuit Court of Appeals in Atlanta handed prosecutors a crushing defeat by reversing the multiple drug convictions of four foreign nationals arrested after their fishing vessel with 760 kilos of cocaine was seized off the Panamanian coast three years ago. That cocaine was valued at between $180 million and $200 million.

Coast Guard drug bust, 2004
The defendants were convicted and sent to prison under a never before challenged provision of the federal Maritime Drug Law Enforcement Act. The ruling reversing their convictions has called into question current US war drug tactics on foreign territory and territorial waters.

If upheld, the decision in US v. Bellaizac-Hurtado, could prevent the US from prosecuting suspected smugglers caught within the 12-mile territorial waters of South and Central America countries, and it may hinder US authorities from entering the 12-mile limit themselves while carrying out anti-narcotics operations. That would wreak havoc with US drug enforcement offensives such as Operation Martillo (Hammer), which has been aimed squarely at Central America and has so far seized over $2 billion worth of drugs from sea-going vessels.

Federal prosecutors haven't said whether they will appeal, but it would be a surprise if they didn't.

As the justices at the 11th Circuit noted, the Bellaizac-Hurtado case is the first taken up during modern times to determine whether the "Offenses clause" of the US Constitution can legally allow US prosecution of drug trafficking crimes in another country. The Offenses clause gives Congress the right to "define and punish… Offenses against Law of Nations."

The court found that the use of the clause to justify the prosecution of Bellaizac-Hurado under the Maritime Drug Law Enforcement Act is illegal because drug trafficking was not a crime under the Law of Nations when the Constitution was written more than two centuries ago, nor is it a crime under "customary international law" now. The pursuit of felony crimes overseas is limited by customary international law, and the international community has not treated drug trafficking under these premises as a crime, the court held.

"Drug trafficking was not a violation of customary international law during the 'Founding of the US law' and drug trafficking is not a violation of customary international law today," the opinion stated. "Because drug trafficking is not a violation of customary international law, we hold that Congress exceeded its power, under the Offences Clause, when it proscribed the defendants' conduct in the territorial waters of Panama. And the United States has not offered us any alternative ground upon which the Act could be sustained as constitutional. As applied to these defendants, the Act is unconstitutional, and we must vacate their convictions."

While the ruling found the act could not be used to prosecute suspected drug smugglers arrested within a country's 12-mile territorial waters, it does not impact cases against smugglers using "stateless" submarines, nor impede the ability of US authorities to prosecute felonies committed on "the high seas."

The potentially precedent-setting case began in 2010 when US Coast Guard patrols in Panamanian waters spotted a wooden fishing vessel operating without lights or a flag. Suspicious, the Coast Guard alerted the Panamanian Navy and the chase was on. The Navy officers chased the vessel until the suspects abandoned the ship and fled on land deep into Panama's jungle. Following a thorough search of the vessel the Coast Guard discovered "760 kilos of cocaine." The feds had scored a mother lode. Meanwhile the four occupants of the vessel were arrested the next day in the jungle by Panamanian National Frontier Service.

Through a diplomatic agreement, Panama handed the captured men over to the US for prosecution.They were indicted in Florida's Southern District in Miami for conspiracy and possession with intent to distribute five kilograms or more of cocaine aboard a vessel subject to US jurisdiction under the Maritime Drug Law Enforcement Act.

They were convicted and sentenced to federal prison. Their attorneys, led by Miami defense attorney Tracey Dreispul, appealed. The Maritime Drug Law Enforcement Act was unconstitutional because it exceeded Congress' constitutional powers under the Offenses Clause, they argued.

The Justice Department responded that "drug trafficking is an offense against 'Law of Nations' as applied to the defendants' conduct -- -subject to Universal Jurisdiction because when Congress enacted the Maritime Drug Law Enforcement Act, it stated that drug trafficking is 'universally condemned' and a threat to the security and societal well-being of the United States." Prosecutors also argued that "the US federal district court had lawful jurisdiction over the cocaine because the defendants had been operating a vessel without a flag or national identification, and that the Panamanian government consented to have the men prosecuted in the United States."

But the appeals court in Atlanta wasn't buying it. "Offenses against Laws of Nations can only be interpreted in accordance with principles of customary international law because international law proscribes which conduct may be punished as an Offense against the Laws of Nations," the court held.

In other words, Congress doesn't get to define what constitutes customary international law.

"Where does the government get off on by prosecuting people they don't have the power to prosecute?" asked attorney Stephen Leckar, counsel for the defense in the landmark US v. Antoine Jones GPS drug trafficking case, in an interview with the Chronicle. "Where is the evidence that the drugs were headed for the US market to be distributed?"

"This basically was a Panamanian internal matter and their government is saying 'United States, you clean this up for us,'" Miami lawyer Phillip Horowitz, who represented one of the defendants, told the Miami Herald.

The ruling could have a cascading effect, impacting some of the thousands of drug smuggling cases stemming from offshore arrest. Legal experts predict that if the ruling withstands appeal, other convicted drug smugglers may go free if they, too, were arrested in foreign territorial waters by international police, then turned over to US for prosecution under "Offences against Laws of Nations."

Those defendants need to act, though, said Florida defense attorney David Silverstein. "Any defendants convicted under the same set of facts in Bellaizac-Hurtado must file a writ of habeas corpus within two years after the opinion was issued," he told the Chronicle.

With their convictions now voided, it remains to be seen if Bellaizac-Hurtado and his codefendants will now be prosecuted by Panamanian authorities. If so, let's hope they get credit for time served. Luis Carlos Hurtado did 25 months, Pedro Angulo-Rodallega and Albeiro Gonzales did 36 months, and Yimmie Bellaizac-Hurtado is still doing his 90-month sentence pending resolution of the appeals. The others have been deported.

Atlanta, GA
United States

Federal Appeals Court Blocks Florida Welfare Drug Test Law

The 11th Circuit Court of Appeals in Atlanta Tuesday upheld a preliminary injunction blocking Florida's 2011 law requiring welfare applicants to take and pass a drug test. The court held that mandatory, suspicionless drug testing violated the Fourth Amendment's proscription against warrantless searches and seizures.

The decision came in Lebron v. Secretary, Florida Department of Children and Families, in which Navy veteran, single father, and university student Luis LeBron applied for Temporary Assistance for Needy Families (TANF) funds, but refused to be drug tested. His challenge to the law led to a federal district court's preliminary injunction halting the implementation of the law. The 11th Circuit's ruling Tuesday upheld the preliminary injunction.

Federal courts have generally found random, suspicionless drug testing to be a violation of the Fourth Amendment, but have carved out two "special needs" exceptions: for public safety (allowing testing of pilots, truck  drivers, and police doing drug enforcement) and children (allowing testing of students involved in athletic or extracurricular activities). The 11th Circuit held that the Florida law did not fall within those exceptions.

The state of Florida "presented no empirical evidence to bolster its special needs argument that suspicionless drug testing of TANF applicants is in any way warranted," the court held. "There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment."

"Today, the 11th Circuit Court of Appeals, in affirming a preliminary injunction halting Florida's law mandating suspicionless drug testing of TANF applicants, set important precedent, which will hopefully curtail other states from following in Florida's stampede over individuals' Fourth Amendment rights, said Shawn Heller, a co-counsel on the case. "As Judge Jordan succinctly stated in his concurrence, 'constitutionally speaking, the state's position is simply a bridge too far.'" (Heller first joined the case while on staff at the Florida Justice Institute, which argued the case as co-counsel to the ACLU of Florida.)

"The 11th Circuit's decision deals a devastating blow to any state's attempt to impose suspicionless drug testing as a condition of receiving governmental benefits," said Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, which had filed an amicus brief in the case. "We hope that lawmakers will choose to honor the constitution rather than scapegoat poor people in efforts to address perceived drug problems."

In that amicus brief, the Drug Policy Alliance was joined by the American Academy of Addiction Psychiatry, Physicians and Lawyers for National Drug Policy, the Legal Action Center, Center for Juvenile and Criminal Justice, National Employment Law Project, Child Welfare Organizing Project, and National Advocates for Pregnant Women.

The brief argued that Florida’s drug testing scheme does not achieve any of its purported goals of protecting the well-being of children, promoting the employability of person on public assistance and assuring fiscal integrity, and does not pass the "special needs" test that is required to justify otherwise unconstitutional searches by government officials.

The ruling comes as public benefits drug testing measures continue to be introduced -- and sometimes advanced -- in states across the country. Some of those bills attempt to overcome the Fourth Amendment obstacles cited by the appeals court here by attempting to set up a "reasonable suspicion" assessment before mandating drug testing.

Atlanta , GA
United States

Medical Marijuana Update

Most of the action was at statehouses this week, but there was also news from the Harborside Health Center battle in California and an announcement that the nation's capital will soon have its first dispensary.

Arkansas

On Tuesday, the state attorney general rejected the wording of a ballot measure that would legalize medical marijuana. Attorney General Dustin McDaniel complained of ambiguities in the measure. McDaniel must certify the measure before signature-gathering  to qualify for the 2014 ballot can begin.That means it's redrafting time for Arkansans for Compassionate Care, the same folks who brought a narrowly-defeated measure to the ballot last year.

California

Last Thursday, a federal magistrate rejected the city of Oakland's challenge to the federal government's effort to shut down Harborside Health Center, the world's largest medical marijuana dispensary. Magistrate Maria-Elena James ruled that only those who have a direct interest in the property -- Harborside and its landlords -- have the right to challenge the government's effort to seize it. The city had intervened in the case on Harborside's behalf, arguing that its closure would lead to public health and safety problems.

On Wednesday, medical marijuana patient Daisy Bram was arraigned in Tehama County on marijuana cultivation charges. This is the second run-in with recalcitrant local authorities for Bram, who was arrested on similar charges in 2011 in Butte County. In both cases, authorities also seized her children. In the Butte County case, police and social workers tore Bram's month-old son from her arms, and he and his sibling remained in foster care for six months. Her children have been seized once again, as has her 12-year-old personal vehicle, which authorities claimed was purchased with the fruits of crime.

District of Columbia

Last Friday, operators of Capital City Care announced that the District's first dispensary will open in April. It's been a long time coming. Voters approved medical marijuana in 1998, but Congress blocked its implementation for more than a decade, and District officials have moved at an excruciatingly slow pace in enacting regulations and permissions. City officials have approved three dispensaries and six cultivation centers, but Capital City will be the first out the gate.

Massachusetts

Last Thursday, state health officials held a "listening session" in Boston to get public input as they work on regulations for the state's nascent medical marijuana industry. They heard from patients seeking broad access, as well as from substance-abuse groups, youth counselors and police, who urged them to draft strict regulations. This was the second of three "listening sessions" undertaken by the Department of Public Health. The department has until May 1 to draft regulations for the program.

Montana

Last Friday, a package of bills to fix the state's gutted medical marijuana program was defeated in a House committee vote. The bills were an effort to undo some of the restrictions passed by the legislature in 2012 that effectively killed the state's burgeoning medical marijuana industry. The hearing was also notable for one of the more colorful comments on marijuana heard in recent years. Marijuana is "a joke," said House Human Services Committee Chair David Howard (R-Park City), a former FBI agent, adding, "It makes you delusional. It is psychologically addicting and physiologically addicting and it absorbs in your fat cells, which is the most dangerous drug there is. This is not a drug. It's a poison."

Washington

On Monday, lawmakers held a hearing on taxing medical marijuana dispensaries. The bill's sponsors said they want to hit dispensaries with a 25% tax on cannabis sales like the one mandated for non-medical marijuana under the state's new legalization scheme. The idea is to avoid a dual market -- one taxed and one not -- once legalization regulations go into effect. But more than a dozen people, most of them patients, testified against the move. No vote was taken.

West Virginia

On Monday, Del. Mike Manypenny (D-Taylor) introduced a medical marijuana bill. The bill, House Bill 2230, would allow patients to possess up to six ounces of marijuana and establishes five "compassion centers" to provide patients their medicine. Manypenny introduced similar bills in the last two sessions, but they never got a hearing.

US Supreme Court Upholds Drug Dog Search of Truck

The US Supreme Court Tuesday upheld the use of police dog's sniff of a truck, finding that training and testing records were sufficient indicators of the dog's reliability and gave police probable cause for the search. The high court in 2005 upheld the legality of highway drug dog searches; in this case, the court focused on the reliability of drug dog searches.

In deciding the case, the high court reversed a decision from the Florida Supreme Court. The Florida court had held that a wide array of evidence was necessary to establish probable cause for the search, including field performance records that would indicate how many times the dog had falsely alerted. Without such records, the Florida court held, police could not establish probable cause.

Tuesday's ruling came in Florida v. Harris, in which Clayton Harris had been pulled over by a police officer in Liberty County in 2006. The drug dog, Aldo, alerted to the truck's door handle, the officer searched the truck, and methamphetamine precursor chemicals were found. Clayton was arrested on meth-related charges.

Harris was again pulled over by the same officer while out on bail, and Aldo again alerted on his vehicle. This time the vehicle search came up empty. Harris's attorneys challenged Aldo's reliability in part because of this second alert that turned up nothing. The Florida Supreme Court agreed with their argument that the dog's performance in the field needed to be assessed in order to determine probable cause for the search.

But not the US Supreme Court. It unanimously reversed the decision.

A drug dog's "satisfactory performance" in a certification or training program provided sufficient probable cause to trust its alert, Justice Elena Kagan wrote for the majority. "The question -- similar to every inquiry into probable cause -- is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime," Kagan wrote. "A sniff is up to snuff when it meets that test."

The case is one of two Florida drug dog cases before the Supreme Court this session. In the other, the high court takes up the question of whether a drug dog can sniff the front doorstep of a home without a search warrant. The Supreme Court has upheld drug dog searches of vehicles on the highway and packages at delivery service warehouses, but in other cases has shown greater deference to Fourth Amendment requirements at residences.

Washington, DC
United States

AZ Court Says You Don't Have to Be High to Get a DUI

An Arizona appeals court has ruled that marijuana users don't need to be actually impaired to be successfully prosecuted for driving under the influence. The ruling came Tuesday in the case of a man who tested positive for an inactive marijuana metabolite that remains in the body for weeks after the high from smoking marijuana has worn off.

The ruling in Arizona v. Shilgevorkyan overturned a decision by a superior court judge who said that it didn't make sense to prosecute people for driving under the influence if they're not actually under the influence.

The ruling turned on a close reading of legislative intent in writing the state's DUID law. The legislation specified the presence of "the metabolite" of THC, and Shilgevorkyan had argued that lawmakers meant "hydroxy-THC, the metabolite which would indicate current impairment, not carboxy-THC, an inactive metabolite that indicates only usage some time in the past.

The appeals court disagreed, citing its decisions on earlier challenges to the DUID. "The legislature intended to create a 'per se prohibition' and a 'flat ban on driving with any proscribed drug in one's system," the court noted. "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Because the law was drafted to protect public safety, the appeals court said, it should be interpreted broadly to include inactive as well as active compounds.

But Superior Court Commissioner Myra Harris, who had ruled on Shilgevorkyan's behalf, warned in her earlier opinion that the appeals court's interpretation of the law would result in people, including out of state medical marijuana patients, being charged with DUI when they are not impaired.

"Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona," Harris said in her 2012 ruling upholding the dismissal. "It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier."

Shilgevorkyan's attorney said he plans to appeal to the state Supreme Court.

Phoenix, AZ
United States

Michigan Supreme Court Rules Against Medical Marijuana Shops

In a ruling issued Friday, the Michigan Supreme Court held that it is illegal to sell medical marijuana through dispensaries. That means Michigan patients will either have to grow their own or rely on a designated caregiver, who is limited to providing for no more than five patients.

no dispensaries for Michigan (wikimedia.org)
The 4-1 decision in Michigan v. Compassionate Apothecary (scroll down past the syllabus) upheld an earlier appellate court finding that the state's voter-approved 2008 medical marijuana law does not allow people to sell medical marijuana to each other, even if they are registered patients.

The medical marijuana law says registered patients can possess up to 2 ½ ounces of marijuana and grow up to 12 plants in an enclosed space, but it does not mention dispensaries or otherwise say how patients might obtain their medicine.

"The Court of Appeals reached the correct conclusion that defendants are not entitled to operate a business that facilitates patient-to-patient sales of marijuana," wrote Chief Justice Robert Young for the majority.

The owners of Compassionate Apothecary had argued that their business wasn't illegal because the law allowed for the "delivery" and "transfer" of marijuana, but the high court wasn't buying. The shop could be shut down as a "public nuisance," the court affirmed.

Detroit attorney Matthew Abel, a specialist in the state's medical marijuana law, told the Associated Press the decision had settled the issue in the courts and it was now up to elected representatives to act.

"This is the end of the road. This is it," said Abel. "It will be a mess until the legislature clarifies what kinds of business entities are allowed to exist."

Ardent medical marijuana foe Attorney General Bill Schuette has yet to comment on Friday's decision, but when the appeals court ruled the same way last year, he called it "a huge victory for public safety."

Lansing, MI
United States

New Jersey Supreme Court Protects Rights in Pregnancy Case

The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.

Trenton, NJ
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

Drug War Issues

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