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Prop 64’s Effect on Criminal Records: Legal Invalidity vs. Redesignating Prior Felonies

**This is a technical analysis that is not necessarily fun reading, but may be helpful for attorneys or people who want to clean up their prior cannabis felonies .

Prop 64 fundamentally redefines California’s criminal cannabis laws, in particular Health & Safety Code [“H.S.”] §§ 11358 (cultivation), 11359 (possession for sale), and 11360 (transportation/sales).  Each of those crimes are now misdemeanors, unless its someone’s third offense for that particular crime.[1]  AUMA also allows people to redefine their criminal histories to reflect Prop 64’s changes to the standard marijuana felonies.  There are two avenues for updating one’s criminal record, one of which applies to people who are still serving their sentences (H.S. § 11361.8(a)-(d).)  The other avenue, for folks who have served their time and are off probation or parole, is the focus of this article.

Legal Invalidity vs. Redesignation (H.S. Section 11361.8(e)-(h).)

Under Prop 64, people with cannabis felonies on their record can now “apply” either (1) to have their prior conviction dismissed and sealed because the prior conviction is now “legally invalid,” or (2) to have their prior convictions reduced to misdemeanors.  Judge Couzin’s bench brief on Resentencing Procedures (PDF attached below) is helpful on this procedure, but there are a few substantive notes I want to add: 

1.  ”Redesignating” The Prior As A Misdemeanor

This avenue is available to everyone with a conviction for H.S. §§ 1135811359, and 11360, as well as anyone with a prior “hash” felony, H.S. § 11357(a).  It is critical people realize Prop 64 actually “redesignates” these felonies to be misdemeanors “for all purposes.”  (H.S. § 11361.8(h))  This includes future priorability!   Thus, someone with two prior felonies who gets them “redesignated” will now have two AUMA priors, which then allows any future criminal offenses to be charged as felonies! (See an example in footnote [2], below.) 

Thus, folks who are no longer working in the cannabis industry or who want licensing to become doctors, lawyers, teachers, etc. may want to get their records redesignated.  Those who are still in the cannabis game, however, may want to leave well enough alone, since a prior cultivation felony is not priorable under H.S. § 11358(d)(1).  Arguably, it is legally invalid as-is, so why mess with a good thing?

2.   Declaring The Prior to Be Legally Invalid

AUMA says a person who has a criminal record for conduct that “would not have been guilty of an offense or who would have been guilty of a lesser offense” can now seek to have the sentence declared invalid or get it reduced to a misdemeanor.  This language is unclear, but I imagine most judges will read this to say that if one’s conduct would have been perfectly legal under AUMA, then they can get the conviction dismissed and sealed as “legally invalid.”  (Judge Couzins agrees.)  That means the conduct would not have been a crime under AUMA (which only allows 6 plants, 1 ounce of flower, and/or 8 ounces of concentrates), so the dismissal/sealing on grounds of “legal invalidity” will be far more difficult to obtain.
 
There is no question that those who have felony convictions for cultivating 6 or less plants (11358) are eligible to have their priors declared legally invalid, as are those who have possession for sale (11359) and transportation (11360) for possessing or transporting their personal stash (so long it’s a single ounce of flower and/or 8 ounces of concentrates).  

Everything else, however, is legally murky, as H.S. §§ 11359 and 11360 are not determined by quantity, and instead are focused on whether the conduct was being possessed, transported, or sold consistently with AUMA or MCRSA’s regulatory regimes, which presents somewhat of a quandary because these schemes are not yet in effect.  Presumably, however, if one’s conduct was within S.B. 420’s collective/cooperative defense as we know it today, that might also be sufficient for a declaration of legal invalidity, but that’s no slam dunk and may require an evidentiary hearing, depending on your DA. [3] 

One interesting issue will arise where the arresting or investigating officer(s), and/or their police reports, are no longer accessible due to the passage of time.  Since the prior conduct is presumed to be legal, and the burden is explicitly placed on the prosecution to prove otherwise, older convictions may more easily be declared legally invalid due to the prosecution’s simple inability to locate the old evidence.  This will be a huge asset to those cannabis foremothers and forefathers with felony convictions dating back to the 1980’s or earlier.
 
In any event, the prosecutor can always elect not to contest an application for legal invalidity and, thus, discussing these issues with opposing counsel in advance might save our clients from putting them through another emotional, costly, and often difficult evidentiary hearing on an old conviction. 
 
                                                                                 ***
In closing, our clients are undoubtedly in a better position under Prop 64, since cannabis crimes now default to misdemeanors instead of felonies, and even those misdemeanors are allowable only where one cannot obtain a permit under MCRSA or AUMA.  This fundamental shift in the law provides defense attorneys new arrows in their quiver, with which to continue to strike down cannabis prohibition and keep people out of cages for a plant.  
 
<3, hb

Footnotes:
​ 
[1] As the priors are statute-specific, a prior 11358 conviction should not be “priorable” in a future § 11359 case.  

Additionally, cultivation (11358) remains a felony where committed with an environmental crime, and transportation (11360) remains a felony where the cannabis is being transported out of state.  Sections 1135811359, and 11360 may also be charged as felonies where the defendant has a prior conviction for murder, child molestation, or other serious or violent crime.  This last rule seems like an odd thing for AUMA to throw into the mix, but I am not going to address it here in detail since most of us will rarely see that become an issue in the standard cannabis cases.

[2]           Take cultivation (11358) as an example:

If a person has two cultivation priors, they could seek to have them “redesignated” as misdemeanors, so their criminal history would show two prior violation of the new subsection (c) in H.S. § 11358.  That is great, in that their criminal history is now comprised of two misdemeanors instead of two felonies, a definite improvement.  Where this gets wonky, however, is that those two misdemeanors are also now “priorable” under H.S. § 11358(d)(1), since this section allows a felony charge where there are two priors of § 11358’s new subsection (c).

The same is true for possession in § 11359(c)(2), and also for transportation/sales in § 11360(a)(3)(B)

[3]   If that person already went to trial and used a collective/cooperative defense, it’s doubtful AUMA’s procedure will be interpreted to allow a mini-bench trial on the exact same issue in order to get a declaration of legal invalidity, but I suppose that remains to be seen. 

[4]    Note that H.S. § 11361.8 does not extend to priors for H.S. §§ 11366 or 11366.5, which was a common plea bargain for many cannabis crimes because they were wobblers and did not require registration as a narcotics offender.  These folks may still access the regular route for expungement and reduction under P.C. §§ 1203.4/17(b), and discretionary relief may be made more available due to Prop 64’s passage. 

Why I’m Voting Yes on 64: A Tortured Analysis

Admittedly, Prop 64 does nothing to alter the corrupted capitalist economic system in our nation.  That means that if-and-when cannabis enters the commercial market, it enters a capitalist commercial market where traditional market forces will be in play, for better or worse.  And I’m still voting yes. Here’s why:

I am a criminal defense attorney. My task each day is to defend those who are charged with cannabis felonies throughout the California. Prop 64’s primary redeeming quality is it will have a sweeping effect on current California’s cannabis prohibition, where cultivating cannabis is currently presumed to be a felony unless one can prove their conduct was medical and not for profit.  Today’s cannabis law and today’s cannabis industry simply do not match, which works to the advantage of law enforcement who often seize upon this confusion out in the cannabis fields to arrest famers first, and ask questions later.  

Importantly, illegal cultivation is a straight felony under SB 420 or MCRSA, as misdemeanor cultivation does not even exist in California law today. This should be a heightened concern to growers in ban counties, such as most of the Sierra foothills.  However, if 64 passes, any illegal conduct becomes a misdemeanor unless its (1) a person’s 3rd offense, (2) if the cultivation is conducted in conjunction with an environmental crime, or (3) if transporting out of state.  Even with the influx of cash to law enforcement from Prop 64, law enforcement does not have the same resources or authority to investigate misdemeanants as it does felons. Perhaps equally important, Prop 64 explicitly negates the smell of cannabis as the necessary probable cause that cops use to get into homes and cars. That’s a sweeping disadvantage to law enforcement and will have massive effects on how they can investigate our people. I cannot stress how important these changes could be for growers. 

Next, I am wary of those (often wealthy out-of-staters who moved to California in the recent years for the specific purpose of cultivating cannabis) who are advising those of us who were born here that the corporations are going to take over.  Those corporations are already here, my friends.  There are people at our own local policy meetings that would happily vertically integrate if they could and push the diversity of our small farms out of the market in favor of market domination. If we think the big guys have the small farmers’ backs today, we’re kidding ourselves. It is already happening.  The competitive application processes thus far around the state have been a bloodbath, as is often the case in a corrupted capitalist system such as ours. Steve DeAngelo of Harborside spoke in Nevada County recently and said the future of the small farmer is to lease space from the large cultivators!  And he wasn’t talking about Prop 64, folks. 

To some degree, the preservation and promotion of self is human nature, regardless of the economic system in play.  In fact, the most common question at my office is “how can I establish priority for future licensing?,” raising the inference that if there is a cap on number of permits, most folks want to be one of those few, to the exclusion of others.  Lets also take a moment to recall Prop 64’s allowance of priority and vertical integration sent hundreds—perhaps thousands—of NorCal growers to ill-advisedly rush to file for cooperatives prior to September 1 this summer. The same insane bumrush happened last December regarding the MCRSA priority. Trust me, someone out there is already gunning to throw other small farmers under the bus, Prop 64 or not.  Prop 64 just takes that felony bus and makes it a misdemeanor. 

In California, we should instead look closer at competitive capitalism, the effect of money in politics, and a grossly unjust legal system, rather than reject a second semi-legalization initiative.  Instead of infighting, I wish our community would focus on addressing the corruption in these underlying power systems, making sure that more small businesses, people of color, women and those with cannabis-related criminal histories, are supported in this new era.

Finally, a particularly violent anti-64 grower I know (in another County) has thrived in the black and grey market because his cannabis is subpar by all accounts, and has been so for years.  Market forces should drive out the growers who lie about their pesticide use or inflate the cannabinoid content.  The market will make sure the money he made in the past would now go to someone who does play by the rules, who is willing to have their cannabis tested by a laboratory, who pays taxes, and who makes sure their product is labeled truthfully; someone who makes sure to follow the appropriate regulatory process.  Small growers will be able to get their permits and can even thrive, if they are willing to do the hard work of increasing the quality of their brand, marketing their product well, banding with others, coming to the policy meetings to shape the regulations in their favor, and who will do the work required of legitimate business.

I admit this is a tortured doom-and-gloom analysis, and it saddens me that I just don’t see another option. Prop 19 was far better than Prop 64, so I doubt the next one is going to be better.  Who would fund another and more expensive legalization initiative after two failed in California? My heart is heavy about this, as the harsh realities of Prop 64 has exposed some of the darker sides of California cannabis, on both sides of the issue.  I can only pray we respect each other’s opinion and each others Constitutional and ethical imperitive to VOTE, and look forward to that day when we reunite in a meaningful way to focus on the greater problems we continue to battle: money in politics and a broken legal system.

Those evils will persist, regardless of the outcome of this election. Please do not let this divide our community any further.  Either way, we have so much work to do. 

#rise #dividedwefall #fuckthatCOINTELPROshit #protectourfarmers #sameteam 

My musical meditation for this sad soulful post is Murs, “The Time is Now.” 

Look, not now, but right now, it’s time to change the game,
A new style, something different, you know, uplifting,
New sound from the West that we all can get with it,
The Pacific to be specific.”  

#cali4life <3, ~hb

What to Know About Aerial Surveillance During Harvest

It’s October in NorCal, which means it’s officially harvest time in the outdoor cannabis growing counties, such as Nevada County, Yuba, Humboldt, Mendo, Lake, etc.  The leaves are yellowing and the smell of cannabis is wafting through the air.  As the outdoor grow season winds down, the Sheriff’s helicopters and fixed wing planes are in full effect in their last ditch effort to take down as many gardens as possible before the end of the month.  Since that means it’s time to hunker down and protect your year, our office decided to dedicate this blog to the laws that officers should follow when flying above your garden, and what you can do when you see them.   

First, all growers should know the basic laws regarding aerial surveillance.  Law enforcement aircrafts are not allowed to violate FAA rules, which mandate that fixed wing aircraft must fly at least 1000 feet above congested areas and 500 feet above sparsely populated areas.[1]  Helicopters can fly lower, at approximately 500 feet or even lower, so long that they aren’t “physically intrusive.” 

However, on the hill, we all know cops constantly violate these rules, particularly with helicopters. Thus, the question becomes: “What can you do about it?”  Here are a few actions that cannabis farmers can take when aircrafts are too close to your garden for comfort:

  1. Document it!

All aircraft have their identification numbers on the side.  If you can read them, it’s too close.  So write it down! Quietly take a photo or video, but don’t make a big stink about it. [2]  In fact, write down everything they do, particularly if they circle you or pass back and forth repeatedly (also called “aerial acrobatics”).  If law enforcement ever shows up at your garden, your lawyer will probably kiss you if you’ve already documented any of the following:

  • Date and time.
  • Aircraft number, color and other markings
  • Flight pattern (i.e. did they fly in a circular, zig-zag, or back and forth pattern? If so, how many times?)
  • Estimate how many feet the aircraft was above you. Was it at tree-top level? Could you see into the eyes of the pilot or any passengers? Can you document what any of them were wearing or doing?
  • MOST IMPORTANT: Document how the helicopter’s close altitude affected your senses.  Could you feel the wind from its wings? Could you feel dust being kicked up into your face? Was the noise deafening?  Were you scared for your safety?

    2. File a Complaint With the FAA

If the law enforcement aircraft is coming too close, the FAA should know! The FAA takes this seriously and will contact the pilot quickly. They may even ground the pilot if their conduct was dangerous.  You can file a complaint by emailing them at FAAHotline@faa.gov or using their online form here: https://www.faa.gov/contact/safety_hotline/.  

This is strong medicine and should be used cautiously, as the FAA is a federal agency and their complaint form requires you to disclose your name and address. 

     3. Get Your State Law Game on Point

If you get a close fly-over, particularly one where the aircraft circled you, consider yourself officially on the Sheriff’s radar.  Thus, I advise all my clients who have a contact with law enforcement to consider it a warning, and for Goddess sake, take this opportunity to make sure your conduct complies with state law!!  I know trim is getting close and friends are starting to trickle into town. But this is a time to keep on your toes, not to relax. Not quite yet.  

Also take this opportunity to remind your staff they are not allowed to make any statements to law enforcement.  Never. None. Nada. NO STATEMENTS.  If you cannot do this due diligence because you’re either too scared or too lazy to have a grown-up conversation with your workers, get another job.  #truth

     4. Get Naked

This one is my favorite, but it only applies to helicopter surveillance of gardens on the same property as one’s home. The reason is that the law gives greater respect to that “intimate activity associated the sanctity of a man’s [or woman’s] home,” which means officers are not allowed to look as closely at those areas near a home where folks historically kept an outhouse, hung their bloomers, or sunbathed in the nude.  The more naked you are, the greater your “expectation of privacy.”  #seriouslytho 

                                                                            *****
In prepping for this blog, I actually took my staff up in a small plane and toured Nevada County!  To be sure, full season outdoor plants grown in a patch are easy to spot, even from a plane at 1,000 ft up.  While it was impossible to see inside a greenhouse with my naked eye, my cell phone camera did a fairly good job of spotting green-colored foliage from within greenhouses that had the sides rolled up.  So expect another blog in late February – prior to the outdoor planting time – discussing how to alleviate this easily-solvable problem (and how it is unwise to have an outdoor garden on the same site as a light dep or greenhouse!!).  But that’s a story for another day…
 
I close this post with a reminder that unlawfully obtained evidence may be suppressed in any criminal action, although it is near impossible to get it suppressed in a civil ordinance action.  So, yes, cops may legally cut you down, even if they learned about you illegally.  Know this!  Our sacred herb grown under the sun is soon ready to bless up, so please be safe out there during these final few weeks, my dear friends and family.
 
Much love, ~hb  
#roots #legalizeit #cali4life
 
As always, I end my blog posts with a musical meditation: John Holt’s legendary “Police in Helicopter,” a roots classic that’s been banging in every roots dancehall I’ve ever been in since I was a kid. And that’s no small number.   
 
We don’t trouble your banana, we don’t trouble your corn.
We don’t trouble your pimento, we don’t trouble you at all.
But if you continue to burn up the herbs, we gonna burn down your cane fields. 

 ‘nuff said.
 
*Written by Heather Burke. Legal research by Heather Burke and Sarah Smale.

[1] This rule applies to aircrafts owned and operated by law enforcement, as well as to those private carriers who contract with law enforcement.

[2] If you do take photos or video, please immediately get them to your attorney and then delete them from your phone.  If law enforcement does execute a search warrant, they will seize your phone and the photos/videos will be lost or used against you.  

Nevada County: “Let Us See Who Is Strongest.”

I was not designed to be forced.  I will breathe after my own fashion.  Let us see who is the strongest.” 
-Henry David Thoreau, On the Duty of Civil Disobedience
To be sure, we are living though one of the most widespread acts of civil disobedience in modern history, as the cultivation of cannabis is sweeping through California and beyond in numbers we can barely begin to comprehend and in spite of any regulation that has attempted to ban it. 
 
In Nevada County, the full scale ban of all outdoor and commercial cultivation on the June 7th ballot, entitled Measure W, will do little-to-nothing to change this trend.  At best, Measure W is a temporary vindication of the moral majority in a conservative retirement County, a moralistic approach that cannot be effectively enforced considering the sheer numbers of humans involved in this honorable work.  To be clear, if W passes, the question is not if the ban will someday fail, but when it will fail.  

​Here’s why:   
 
At the most basic level, young people overwhelmingly agree with sensible cannabis regulations.  These youths will someday rise to take the seats of County Supervisors and, even better, the Sheriff.  Case in point: my 14-year-old son toured the Supervisors’ offices on a school field trip.  Upon meeting Supervisor Ed Scofield, he and his young colleagues wasted no time in grilling the elderly and hopefully out-going Supervisor about the wisdom (or lack thereof) of Measure W.  I talked to several of the children afterwards, and they said Scofield’s answers appeared rote, and didn’t jive with the reality each of them already knew to be true.  I cannot help but smile when I imagine these fresh-faced teens immediately spotting Scofield’s BS, holding their own against a failed policy that is literally aging before our eyes.  This scenario has replayed itself in my mind as a symbolic moment, and one that we should take to heart if Measure W passes.  
 
Even if it does pass, the pro-regulation camps have undoubtedly benefited in spectacular ways that will catapult us into the next fight, whatever that may be.  The greatest of these benefits is in the recent announcement that Nevada County has more registered Democrats that Republicans.  I’m sure the Sheriff had no idea that his pet project would motivate the most vibrant “Get Out the Vote” campaign ever seen in Nevada County, causing our historically red county to turn blue.  This is a truly fascinating development with far reaching implications that is likely causing some handwringing in the Republican establishment.  Not only will the new Democratic majority affect the two Supervisorial races also at issue this week, it more importantly and undoubtedly will have drastic impacts for generations to come.  So for that epic change to our County’s political landscape, I would like to extend my sincere thanks to our very own Sheriff Royal. 
 
Another unexpected side effect of Measure W is that it provided a pathway for numerous No on W folks to rise to local and even state-wide prominence.  Jonathan Collier, for example, was relatively low key before Measure W, but not since.  Jonathan has excelled in diplomacy, forging bonds with unlikely allies that I never thought possible.  Indeed, he was chosen to debate pro-W hothead, Supervisor Dan Miller, at the Democratic forum (and JC killed it!).  Diana Gamzon of the California Growers Association is another standout who whipped a disorganized bunch of No-on-W folks into a lean, mean, fundraising and public outreach machine. Mark Shaefer worked with the No on W Committee to raise a significant amount of funds for the PAC, a feat that few thought were possible considering the dearth of funds for 2014’s Measure S.  Last but certainly not least is Forrest Hurd, a father whose articulate and compelling story about how Measure W will harm his son Silas’ very life has reverberated throughout the State and nation.  The list of these rising stars goes on and on.
 
The Sheriff could have gone for the old fashioned “divide and conquer” method that some Bay Area cities are doing by giving out one or two permits, and then over-regulating those to death.  But instead he chose to unite us with a singular goal, and spawned a quick rise of articulate, well trained, and energetic cannabis superstars.  I could not have handpicked a better team of advocates to embark on the post-W journey with (whatever that may be) and, for that, I’m again grateful to the Sheriff for a new cadre of pro-regulation heavyweights that he created.  And it will not be long before others rise as well, as folks are becoming less and less scared of law enforcement retaliation with each passing day, particularly as they can now take safety in the great numbers of others who are also freely speaking out.  
 
Finally, it must be noted that the Nevada County pro-regulation community united against W in a way that we have never done before, precisely because we never had to.  Measure W thus provided the impetus for the rise of a tightly knit and supportive cannabis community, a community that did not exist in this way before January 12th.  Indeed, innumerable and life-lasting connections were made as our people rose to new levels together.  Win or lose, it truly has been a team effort.  With this newly united front, we’ve forever changed the face of cannabis in this community, and this beautiful face is here to stay
 
At the risk of sounding cliché, please remain encouraged, regardless of what happens on Tuesday.  Measure W’s impact will be fleeting, as it cannot stop the tides of reasonable cannabis regulation sweeping the nation. If it passes, we trod on, united.  So to the future, place your strong hopes there.

Then get back to work.
 
~Love, heather b.

#NevadaCounty #Rise #NoW

**​My musical meditation for this post is Nas and Damien Marley’s epic Strong Will Continue.  
“Stand up and fight if you know that you’re right and know you will never fail,
Tipping the scale and the wind shall prevail and the boat shall forever sail,
Hey, there ain’t no stopping or cruising,
Even when you’re battered and bruised,
Hold down all the sprinklers on Mt. Olympus,
My god’s tougher than Zeus.”

Basil’s June 7th Voting Guide

*** Heather’s Note:
If you’re from Nevada County, you are hopefully lucky enough to know and love Basil McMahon, an inspiring local artist and advocate.  Basil put out his voting guide for the June 7th election, and he’s on such point that I had to share.  See you at the polls!

Basil’s Voting Guide:

Here are my (Basil’s) endorsements for the California primary ballot. This is a voter-guide “cheat sheet” for down-ballot and local Nevada County races, so you don’t have to go out and do the extra research. Investigate. Speak up. Own your beliefs. Question Authority. Always vote, even if you spoil the ballot.
Fight like hell for your right to vote!

Thank you to everyone whose reached out to ask me- I’m honored that you would take my opinions into consideration. Take them with a critical awareness, and a grain of salt. I’m always open to learning, listening, and changing my mind. This time around, the ballot is pretty short, so I added some extra commentary. These are my own opinions and do not reflect those of any organization.

FOR MORE INFORMATION on progressive candidates to support in other races you can start here:
http://berniecrats.net/#CA
http://www.drugsense.org/dpfca/votersguide0616.html

— PRESIDENT

Bernie F*cking Sanders

Never in my life have i felt so proud to be able to support a presidential candidate. This is the kind of moment that defines a generation politically. Back on the day when he announced and I was posting left and right about feelin the bern, I would never have guessed he would get this far. RESPECT. If Bernie wins California by something like 75% to 25%, he could mathematically overtake Clinton in the pledged delegate count. That, unfortunately, is extremely unlikely to happen. Never give up if there’s still a mathematical possibility, but don’t fool yourself of the chances. If Clinton secures the nomination, low information voters and young millenials who have internalized their disenfranchisement and become disillusioned with the democratic process (heres looking at U!) will be quick to look for explanations as to why Bernie diddn’t win- and the most convenient explanations will be the ones that reinforce their worst suspicions about the election process being rigged. My only hope is that enthusiasm for Bernie Sanders, the dude who has been fighting from within the system for social and economic justice since before your parents were born, doesn’t turn into jaded apathy and suspicion of the “system” just because the results don’t reflect your preferred outcome. Are you going to give up fighting just because of the results of one rigged primary battle? Bernie wouldn’t do that 2 u now would he. He’s in it for the long haul.

Keep in mind, whoever the democrats nominate will be the last and only person standing in the way of a neo-fascist clown assuming the presidency. Yeah, it blows. Fun times!!
Fortunately for you, California Voter, you live in a safely democratic state, and you can vote for whoever you damn well please come november without worrying that voting for your conscience might run the risk of letting Trump win. Unless everyone else does, in which case, your American Individualism is running right up into your need to vote strategically. I know, i know, its hella awkward.

I will not however, in good conscience, recommend any vote that would increase the chances of a Trump presidency.

— UNITED STATES SENATOR

Kamala Harris

The current Attorney General of California is running to replace retiring senator Barbara Boxer (D) in a crowded field. The top two candidates will go to a runoff in November. Expect Harris (frontrunner) to go up against Loretta Sanchez, another democrat with less reliable ‘progressive’ credentials (every democrats’ favorite buzzword). Some people jokingly suggest Kamala Harris is the new female Obama. Elizabeth Warren has come out with a full force endorsement. A (relatively) progressive woman of mixed ethnicity in the United States Senate? we could use more of those.

— UNITED STATES REPRESENTATIVE- District 1

Jeff Gerlach (NPP)

This is our “House of Represenatives” Congressperson seat. District 1 covers the entire north-eastern part of the state. Doug La Malfa, often photographed with his cowboy hat, is firmly entrenched in this safe republican seat. Unfortunately, due to partisan gerrymandering, District 1 is drawn up to be extremely difficult for a progressive candidate to win. Heidi Hall (now running for a Nevada County Supervisors seat) put up a formidable effort against La Malfa in last election cycle in 2014. Watching Hall debate La Malfa during this campaign, I learned that our current House Rep denies the existence of global warming, supports fracking, vilifies the obama EPA and generally personifies the worst characteristics of a tea-party obstructionist in congress. Yee Haw. I also gained alot of respect for Heidi Hall, who spoke persuasively and forcefully for not just progressive ideals, but simple rational thinking.

Unfortunately, La Malfa’s seat is a safe republican seat that no democrat, no matter how centrist, is likely to be able to steal away. Fortunately, that means you get to vote your conscience!

Jeff Gerlach has been a visible and consistent participant at local events concerning medical marijuana and has supported the efforts of the Nevada County California Growers Association. He has endorsed Bernie, stands for many progressive causes and has as good a chance as any unaffiliated candidate to stick it to the man.

— STATE SENATE Distrct 1

Rob Rowen (DEM)

Rowen is the only democrat running against Ted Gaines, the republican whose held the seat since 2011. Gaines diddn’t even bother to show up at a recent local candidates forum, hosted by the league of women voters- and shows his disdain for public deliberation. Jerkface.

-MEMBER OF THE STATE ASSEMBLY District 1
NO ENDORSEMENT
Brian Dahle, the republican whose held the seat since 2012, is running unopposed. Write in a candidate. Perhaps “Banksy,” or “Hunter S. Thomson.”

— NEVADA COUNTY

— COUNTY SUPERVISOR District 2

Richard W. Harris

Richard Harris, a local insurance company professional, decided to step into the county supervisor race last minute against Ed Scofield, who is running for his third term in office representing the South County district. It takes a great deal of courage and character to stand up and offer yourself to public service, especially when competing against an established incumbent. I am especially grateful that Mr. Harris decided to stand for office, considering Ed Scofield ran un-opposed in the last election cycle (and did so only months after pushing hard to enact the highly restrictive marijuana growing ordinance of 2012). It was a unfortunate reflection of how poorly organized the progressive opposition was at the time that the community could let Scofield and his favored special interest groups stand unopposed in south county.
Scofield has been a stalwart opponent of medical marijuana ever since i moved to Nevada County. He was, notably, the only one out of the 5 supervisors who refused an invitation from the NC Cal Growers Association to have a one-on-one meeting after measure S failed in 2014. Unfortunately, the loudest and most influential voting bloc in South County is the ASPOA (Alta Sierra Property Owners Association), and Scofield is their main man.

Harris has reportedly been fighting back against a smear campaign, claiming he is a “big time” grower and one-issue candidate. Characters like Sheriff Keith Royal, Supervisor Ed Scofield and Don Besse of SAM have been implicated in accusations of slandering Harris, who recently penned a letter attesting to the fact that he has in years past grown 12 plants- and no more than 12 plants- to support the medical needs of his daughter, who has a debilitating disease.

This all speaks to the courage and character that it takes to put your hat in the ring and stand for local elected office. It is a sad testament to the tenor of county politics that a good citizen’s character would be impugned for simply being a cannabis provider for his own daughter’s medical needs. Dirty politics indeed.

— COUNTY SUPERVISOR District 2

Heidi Hall
Dwane Strawser

In District 2, two candidates are competing to replace retiring incumbent Nate Beason. Regardless of the outcome of the race between Hall and Strawser, the county will be much better off with Beason in the rear-view mirror. He has been an obstacle to progress in more ways than I can count. He played a principal role in pushing through the county’s outside events sound ordinance, which dictates that if you host more than 50 people on your private property after 10PM, you have to obtain a special permit from the sheriffs department. The consternation caused by this contentious edict alienated even some of the board’s more traditional allies, like the vinyards, the wedding industry, and the NC chamber of commerce. Nice work.

Now District 2 (which includes Nevada City and much of municipal Grass Valley) is presented with two very different options for who should take over the vacancy left by Beason. Heidi Hall- manager with the State Department of Water Resources (endorsed by the NC Democrats), and Dwane Strawser- Grass Valley City Councilman and bike shop owner (Endorsed by the NC Republican Party).

There is much ado concerning who is best suited to demonstrate leadership and effectiveness in Nevada County’s open supervisorial seat. In an era of conservative dominance on the county board AKA the Old Boys Club, some suggest that an outspoken advocate for progressive issues (especially if their voice is only one out of five) will be sidelined and marginalized- this is the spectre of political isolation that candidate Heidi Hall is combating. This veiled accusation- that she might be an ineffectual leader because she is outspoken and would be politically marginalized- is compounded by the fact that she is, of course, female, unlike the rest of the cowboys that runs the BOS.

This to me seems to be a classic example of patriarchy operating in the political sphere, which functions to dismiss and minimize the potential of a woman’s competency and efficacy in public roles of leadership traditionally reserved for men. Basically, its hella wack and I personally think that a woman’s voice, and wisdom, on the Board of Supervisors is sorely needed- particularly if that female voice speaks out in support of environmental justice, community diversity and democratic transparency. Mrs. Hall has shown courage and a willingness to be proactive and transparent in stating her positions, including a No vote on Measure W. If she is successful in her election, she will be an integral ally in the cause of smart and effective MMJ regulations in the county.

Dwane Strawser, her opponent, also running for District 1 Supervisor, does not fit into the neat “Republican” box that most people are trying to stick him into. He was recently a democrat, but changed his party affiliation to “Decline to State” shortly before this election. He has been endorsed by the local republican party, and has received a significant amount of funding from a tea-party affiliated PAC called Citizens for Good Governance. He has accepted these endorsements without protest, and it brings up concerns about the influence of money in politics that mirror the concerns clearly evident on the national political scene. Clearly, many on the right think he is a good safe investment.

Strawser has so far been unwilling to take a position on Measure W. This has been a red-line that many in the community view as disqualifying- they complain, rightfully so, that if you are going to stand as a public official, you should at least stand for something- one way or another. He has been accused of not having principles, and of wanting to play each side off the other for political gain.

My sense, after talking with Mr. Strawser about Measure W for some time, is that there is more nuance here than most people are willing to see. Strawser has shown a concerted effort to educate himself on the issue of Medical Marijuana in the county and what I feel like is a sincere intent to engage on the issue with the NC Cal Growers Association. In short, he has been alot more interested in dialogue and problem-solving than Nate Beason. He understands that Medical Cannabis is a big part of the local community and that we won’t be backing off this issue, even if measure W passes. He has shown a willingness to listen and seems sincere in his desire to find common ground to work through some of the problems the community is facing. If he ends up winning the election, he will be a key ally (despite whatever political stripes you want to paint on him) in crafting local policies which provide a regulated path forwards for good stewards of MMJ cultivation in Nevada County.

— BALLOT MEASURES

— Proposition 50, SUSPENSION OF LEGISLATORS
Yes. I think.

— MEASURE Y
Vote No

— MEASURE W
Vote Hell No

Thanks for reading. 🙂 ~Basil. 

What the County Isn’t Telling Us About Their Cannabis Initiative

Only once in the conversation about Nevada County cannabis cultivation have we heard the Sheriff suggest “an overturn of the ban could lead to the formation of a committee that would search for alternatives to an outright prohibition on outdoor grows.” Not a word of this possibility was hinted at the Board of Supervisors meeting on January 12, nor in the official numerous statements in the fallout over the poorly drafted language of the two enactments, nor even in the purported “intent” language the Board will ratified on February 9th.

If indeed it is true that a “No” vote in June would indeed result in the formation of a commission to “search for alternatives to outright prohibition,” we must ask why the County is keeping this alternative secret, particularly where all parties agree cannabis cultivation is going to continue in spite of the ban: if growers flourished under threat of state and federal arrest, they will be undaunted by a civil land-use ban.  If it is not true that such a committee will be formed, your Sheriff just straight up lied to you.  Only one of those two things can be true. 

However, the Sheriff already conceded the ban will be ineffective as he immediately doubled his helicopter budget mere days after the ban was enacted. If the urgency ordinance was expected to be effective, why would the Sheriff need twice as many resources to locate gardens from the air? He wouldn’t.

And when all parties agree outright prohibition won’t work, but enact it anyway, the governmental purpose cannot be to stop the prohibited conduct. There must be another reason.  So what is the real purpose of the cultivation ban in Nevada County?

Its simple…

By expanding control over the subject matter, the Sheriff can shape discourse about cultivation to suit his partisan position (and the doubling of his budget) as we move towards the end of prohibition. We saw this play out at the BOS meeting where photos of gardens were purported to be “bad actors.” I was familiar with those photos, as many were of my clients’ gardens. The overwhelming majority were not diverting water and were “organic. None were cited because of smell.  Instead, the Sheriff located the gardens by air and called the “complaint” into the abatement unit themselves.

The Board sadly allowed the Sheriff to contort these “facts” to support a civil ban, which the Sheriff immediately bootstrapped into a need for increased crime surveillance. The need for more helicopters will soon become a need for more officers, and so on, ad infinitum

Rather than verify the Sheriff’s “facts,” the Supervisors rushed to enact a law they did not understand, as was made clear when they admitted the “emergency” ordinance will continue regardless of the June election. Then they incredulously downplayed the importance of their vote by demeaning compliance, suggesting growers violate the law.  Our Board Chair, Dan Miller, stated, “If you’re growing one, two plants outside… I don’t think there’s gonna be an issue.” He joked no one would notice cannabis plants placed inside a patch of artichokes, suggesting a manner to elude detection.  At the Town Hall meeting on the Ridge, Supervisor Hank Weston said growing outside was okay if neighbors didn’t complain, contradicting the clear message of the Sheriff’s request to double his helicopters.

How can the Board ask growers to respect a law the Supervisors don’t respect, particularly after they’ve flaunted the ease of violating it in the faces of those to whom the regulation really matters? When lawmakers irreverently advise the breaking of the very rules they enact, they breed disrespect for the entire rule of law.

After the vote, bitter disappointment spread throughout the community like wildfire, though the disappointment was not limited to the ban, as no one believes the ordinance will curb the tide (and the Sheriff already banked on it to the tune of $55,000). Rather, the bubbling excitement of all stakeholders – the hope that irrational prohibition was subsiding to make way for effective regulation – was thoughtlessly squelched, and with it the trust many of us have been building with patients and growers for decades. 

Instead, the Sheriff hints of a “commission” if-and-only-if we vote “No” on his woefully-drafted and expectedly ineffective ban on June 7th, which brings me back to my question of why the County has not told us a “No” vote could mean the formation of a committee purposed to bring growers into compliance, generate enough revenue to monitor compliance, and unite the community in an unprecedented effort. 

To be sure, if the County wanted effective cannabis policy, they would have sought it from the outset. However, as discussed above, effective regulation is not their point, lest the Sheriff’s role in the conversation (and thus his budget) be reduced.

When voting in June, please remember a “No” vote is a vote for regulations that work.

#NevadaCounty #NoW #Rise 

*Originally posted as Op/Ed on YubaNet here: What the County Isn’t Telling Us About Their Cannabis Initiative

The Future of Cannabis Cultivation in a Banned County.

The story is so often repeated in my ears that it’s become a mantra for the vast majority of the cannabis growers these days: “I want to be in compliance. I want to do things right.”  The laws that define what it means to be in “compliance,” however, recently underwent a dramatic shift with the new regulations passed in Sacramento last October, the Medical Marijuana Regulation and Safety Act (“MMRSA”).  MMRSA abolishes the old-school “collective/cooperative” model in about three years, which fundamentally changes the game.  This article is dedicated to what laws will be affecting NorCal growers during that interim period before MMRSA becomes mandated and the old collective/cooperative model is abolished.
 
To fully understand the transition into these new regulations, I must paint an overview of the laws relating to cannabis cultivation.  Currently, there are three distinct tiers of law that all growers should be aware of in this changing legal landscape; (1) civil/land-use ordinances,  (2) state law, and (3) federal law.  It looks like this:
Fed Law
_________
 
State Law
_________________________
 
County/City Civil Ordinance Law
_________________________________________________
Tier 1, Civil Land Use
The first tier is the land-use ordinances that are set by the locality (City and/or County) and are civil in nature.  The closer one is to the land, the more authority the government has to regulate the use of that land. So when it comes to the particular uses of particular land, City ordinances generally trump County, County ordinances trump State, and the State trumps the Feds.  That system makes sense, of course, because we don’t want Los Angeles telling us how to regulate the use of the North San Juan Ridge, nor do we want the Feds telling Nevada City what kind of businesses are acceptable downtown.  The most important thing to note about local ordinances is that they are civil, and thus violations are non-arrestable public nuisances, for now.  Cops can seize your plants, they can charge you extravagant fines, but they cannot cage you.  
 
Tier 2, State Law
The second tier is State Law, and is comprised of Prop 215, the Medical Marijuana Program, and now MMRSA.  A violation of the State Law is a felony criminal offense, which means they can cage you for violating these laws.  There is no “misdemeanor” cultivation crime in California: its either 100% a felony or 100% legal.   Currently under California law, there are three and only three ways any cannabis cultivation-related conduct is legal: if the cultivation is occurring (1) for your own personal use, (2) for the use of someone for whom you are their nurse or primary caretaker, and (3) on the behalf of a valid collective or cooperative.   The new MMRSA laws abolish this third category, the collective/cooperative, one year from the date the State licenses start being issued.  The State has said they expect to issue licenses in early 2018, which means collectives/cooperatives will protect you only until early 2019.  If you are operating in what I call a “ban county,” you better stay tuned for that date.  Know this!
 
​MMRSA fundamentally changes the game in that it, in essence, requires everyone have a state license for any and all commercial cannabis-related activity. Additionally, it also mandates they have permission from their local City or County as a prerequisite to obtaining the state license.  That means, before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
 
Let me repeat this last sentence again:  Before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
 
As we are all aware, the enactment of MMRSA catapulted many City Attorneys and County Counsels around the State to thoughtlessly enact full-scale bans.  Thus, once MMRSA abolishes the collectives and cooperatives, you wont be able to be arrested for violations of the local ban, but you won’t be able to get your state license either.  And without a state license, any and all cultivation activity will be a straight up felony.   Yes, MMRSA does give you about three years to get your state license but, if you live or work in a “ban county,” you will not be able to get that license.  So if you are in a “ban county” when collectives/cooperatives die out, your choices are simple: stop growing, move, or be a felon.  It’s that simple.  
 
Additionally, folks in “ban counties” must be aware that law enforcement will not be happy to find out that you are operating in spite of a civil ban.  Thus, presume they will seek you out with vigor (and we know the Nevada County Sheriff will do so because he already doubled his helicopter budget) and, when they find you, they will be trying hard to arrest you to build up their anti-cannabis campaign.  So please don’t give them that pleasure: (1) be kind, but say nothing, (2) do not consent to searches, (3) hand them your collective/cooperative papers that you had ready and waiting for them, (4) make sure that your attorney’s business cards are handy. 
 
Tier 3, Federal Law
The third tier is Federal Law, under which the cultivation of cannabis has no medical defense and carries decade-long mandatory minimums as penalties.   In August of 2013, the Feds said they would hold off prosecutions in States that have enacted a robust “regulatory scheme,” such as MMRSA.  However, it must also be noted here that the Feds will continue to prosecute cases where money from the sale of marijuana goes to “criminal enterprises,” even in California.  Thus, if you cannot get a local permit under MMRSA, any cannabis cultivation for financial gain is now a “criminal enterprise” that could bring one under the federal government’s criminal purview as well as the State.
 
Summary
So yes, it’s a huge risk to work in a City or County that bans cultivation after the collective/cooperative defense is abolished.  Maybe not today, but it will certainly be illegal to continue on in usual fashion once the dust from MMRSA settles over the next three years.  And since the legalization initiative expected to be on the November 2016 ballot does little to help the situation, this is the world we are living in for perhaps decades to come, particularly if your County votes to uphold a ban (making it bulletproof), as well as if the Feds keep cannabis a Schedule I drug (#feelthebern). 
 
Please note that a good attorney cannot advise you to violate even a civil ordinance.  We can only advise you what your risks are, so that your decision is appropriately informed, but the choice to engage in cannabis-related conduct in spite of local, state and federal prohibition, is on you.   One thing is for sure, if you live in a “ban county,” but you don’t vote or donate to the groups working towards cannabis regulations, your County will continue to stay a “ban county,” soon bringing your conduct under State and Federal criminal law. 
 
In closing, I must say that I sometimes feel a bit tricked by MMRSA.  Growers were asked to come out of the cannabis “closet,” and then the government shut the door behind them, forever locking them inside this new world.  But, as I’ve said before and I’ll say again, it’s time to accept what now is, and work to shape it for the better.  Righteous cultivators are the foremothers and forefathers of a new era for a medicine that can cure cancer and eradicate plastics.  Our heavy work has only just begun.  If indeed you have chosen cannabis cultivation as your life’s work, you must adapt or be left behind.  
 
As always, I end my post with a musical meditation, which today is Lauryn Hill’s “Lost Ones.”  ​

My thoughts on the Yuba County narc detective’s recent arrest for trafficking 247 pounds of cannabis out of state.

I respectfully reject the SacBee’s quote attributed to me in their recent article regarding Yuba County narcotics detective Chris Heath’s arrest for transporting 247 pounds of cannabis in Pennsylvania while armed with his duty gun and $11,000.  The reporter opened up the conversation by asking me if Heath’s situation “was like catnip” for attorneys like me.  I laughed, and joked that it was more like straight vodka.  The question was so silly that I thought the real interview started after that.  Lesson learned. 

Each and every one of my clients, and certainly anyone who has ever heard me speak publicly about the current state of cannabis law, knows that I take my task as a medical cannabis lawyer extremely seriously, perhaps to a fault.  Of course my early visceral reaction to discovery of Agent Heath’s abhorrent conduct was a brief spat of laughter due to the comic hypocrisy and fleeting moment of vindication, though under no circumstances do I think this is the time to celebrate with trite jokes.  Quite to the contrary, when a narcotics detective assigned to the investigation of cannabis cultivation in a County that has enforced a per se prohibition of all cannabis-related conduct blatantly dismisses both state and federal prohibition to engage in the sophisticated interstate trafficking of marijuana, a far more pernicious state of affairs become evident. What must this incident teach us?  Certainly Agent Heath’s actions do not teaching us that we act like cats after consuming catnip (I’m not a cat person, so I’m not even sure what this means. Do cats get drunk on catnip? Is it like caffeine?).  

First and foremost, I do not see how we can ignore that both Yuba and Butte Counties have prohibited the distribution of cannabis by banning dispensaries, as well as the cultivation of cannabis (Yuba to a slightly greater extent).  Both counties are known for aggressively prosecuting violations of the state law as well, creating a culture in their local government (law enforcement included) that vilifies and criminalizes any and all cannabis-related conduct.  However, most stakeholders seem to agree that cannabis-related activity is going to continue to proliferate in NorCal, in spite of the flood of local bans: if growers couldn’t be stopped under threat of state or federal arrest, they certainly can’t be stopped by a civil land-use ban.  Thus, when a grower has decided to continue with what is often times his or her life’s work in the face of a ban, he or she will just take greater precautions to not get caught, which often includes moving further into the woods and becoming more unregulated.  Without regulation, there will be a decline in good management practices in the rush to harvest quick, and the criminal mindset will undoubtedly fester. 

This phenomenon is supported by Agent Heath’s own statement to me early in November when I asked him, off the record in a case where he was testifying against my client, if he had seen a reduction in the number of grows in Yuba since the ban.  Over the course of November (the height of the NorCal outdoor season), I asked that same question to Agent Heath, another Yuba County Deputy assigned to marijuana abatement, and two Code Compliance officers, and each agreed that the number of grows had remained about the same, but that the sizes of the grows had increased, as had the trash around the gardens.  In Heath’s particular and very sad situation, this criminal mindset festered right on into Yuba County’s own Narcotics Task Force.

Secondly, how we want to treat Agent Heath now that he’s been caught speaks volumes about our various positions on cannabis prohibition in this new era.  While many rejoiced in the streets, a bay area attorney whom I admire, John Hamasaki, poignantly suggested that he didn’t agree with prosecuting Agent Heath for illegal trafficking because the cannabis laws are arcane and unjust in-an-of themselves.  Although I admittedly happen to be one of those people who sees great value in “reinventing the enemy’s language,” or using the power structures of the oppressor against them, John’s got a point.  If we want to abolish the criminal prohibition of marijuana, prosecution of anyone at all under such laws becomes inappropriate even here.  While Agent Heath would clearly constitute a per se bad actor under every interpretation of California’s cannabis laws, the argument is that, once we say even one prosecution for cannabis is appropriate, we’ve imposed a “moral center” for cannabis crime; a standard by which certain marijuana distribution is right (i.e. legal) and some is wrong (i.e. criminal).  Arguably, if we truly deem the substance itself to be non-deserving of criminal ramifications, then marijuana conduct should not constitute a public offense under any context.  I get it.  

But clearly the Chris Heath scenario is somehow different, or else why would so many in my area (Nevada/Yuba County) rejoice, particularly when those rejoicing are the ones who would usually lament the news of any random NorCal grower getting picked up out of state with 247 pounds?  The answer is obvious, of course: Heath violated the public trust.  And though I was raised in an era where I trusted the local marijuana growers a lot more than I trusted the racist cops who (on a good day) were “just doing their job” of enforcing nonsensical marijuana laws, meaning my trust in law enforcement was low from the outset, even I was incredulous to my very core when I learned of Agent Heath’s arrest.  The breadth of this violation of an officer’s solemn duty to protect and serve is nothing less than gut wrenching.   

Sadly, this is not the first time this has happened.  There was Jason Fredricksson in 2011, a San Leandro Police narcotics detective who was caught selling cannabis he stole from cases he was investigating. And who could forget the federal marshal who was federally indicted for robbing NorCal marijuana growers at gunpoint in 2014? (While that was the only crime for which the US Marshall was caught, he is also rumored to be responsible for the rash of marijuana robberies here in Nevada County after the first summertime round of light deprivations greenhouses are harvested in July.)  An El Dorado County Sheriff was arrested last year for stealing a bevy of drugs from evidence lockers, and I just heard about a Texas Sheriffs Deputy was indicated last for conspiring to distribute more than a ton (over 2,000 pounds!) of marijuana in that state.  The list does not stop there, not even close. 

I suppose it would be the more evolved course of action to demand our state and federal prosecutors refrain from charging these bad actors with violations of the criminal codes relating to cannabis, as there are likely more than enough criminal codes relating to the violation of their public oaths and various ancillary crimes (conspiring to cross state lines to commit a felony, for example) to put cops like these away for a long time. 

But at the same time, fuck those guys… 

In short, the answer remains unclear to me.  So what can I say I’ve I learned from this incident? Not much I suppose, except that reporters don’t have an “off the record” button and that cops like to transport marijuana just as much as the next guy.   

But the theoretical queries our community has been debating for decades about how to treat cannabis-related conduct in this new era stay the same, only with a new anecdotal feather in our cap.  As was made clear in my unreported comments to the reporter, this is an opportunity to discuss how civil bans and vehement criminal prosecutions make the Agent Heaths of the world a possibility.   

One thing does remain clear in all of this, however; this is no time for shallow celebration. And this sad situation is nothing like catnip (whatever the heck that is).  

Tips for a Happy Harvest

Hello and Happy Harvest to all from The Law Offices of Heather L. Burke! 

It seems we began harvest a little early this year and that “end of the season” work is in full effect already, even on this first day of October.  Harvest means its time to hunker down and protect what you’ve poured your heart and soul into over the past year.  In order to keep safe and happy during the upcoming month or two, here’s a few tips from the Law Office of Heather Burke for a Happy Harvest season.

1.     Strive for a Legal Trim.

In California, the only way that your trim scene is legal is if (1) you are the only trimmer and you are trimming your own personal cannabis for the year, (2) you are trimming as a caregiver for someone who you have consistently “assumed responsibility for the housing, health and safety” for, or (3) the most likely scenario, where you and your workers are part of a legitimate medical cannabis collective or cooperative.  

Please know that, in order to be part of the collective, everyone trimming the cannabis must be a member of the collective with a valid medical cannabis recommendation.  So that means when you hire a super hottie (guy or gal) from South America or some European nation that just showed up in Nevada County after Burning Man, hangs out on Commercial Street or on the Ridge with scissors around their neck, and does not have a medical cannabis recommendation, you are risking a felony case for yourself and everyone else in order to have that hottie work at your spot.  If that’s a risk you’re willing to take, so be it.  But be aware that your decision subjects you, the hottie, and all the other workers to a felony conviction.  Do so at your own risk and realize your decision may negate your entire year’s work.  If you have any desire to be wise, ask that hottie out on a date, but do not invite them to work for you this year or any other year until you are legally allowed to hire non-patient processors.  (Side note: AB 266 will allow you to hire non-patients, but is not the law just yet and processing [i.e. trimming] will still be a straight felony until then.)  

Simply put, do what you can to be legal.  And if you have the chance to choose a worker who is already a patient who can join your collective, or one who cannot because of their immigration status, be wise and choose the patient so you don’t lose your collective defense and turn a year’s worth of legal work into a felony.

2.     Trim Season is a Time for Happy Work, but it is Not a Time to Rage.

A common downfall of a few trim scenes is that some folks come to trim for the specific purpose of partying, using illegal drugs, and otherwise engaging in debauchery.  While that scene is quickly losing credibility in an industry that is arising to take a place of honor in the mainstream, please remember that this is NOT the time to do a bunch of drugs, get wasted, and try to hook up with randoms.  I repeat: THIS IS NOT THE TIME TO DO DRUGS, GET WASTED OR TRY TO HOOK UP WITH RANDOMS.  This is “Game On” time for your entire year’s work.  It is instead the time to be at your highest energetic level, and to put your best energy into this medicine that is about to be released to medical cannabis patients around the state.  So take this opportunity to abstain from alcohol or other unnecessary intoxicants if possible, increase your physical activity such as yoga or running, and take that extra moment to love on your partner who has to take care of the house and kids in your absence.   

Also, since many trim scenes are only arguably legal under current California law, particularly where even one of the trimmers is not a member of the collective, your entire season of otherwise lawful conduct can be transformed into an illegal FELONY when the trim scene is not conducted by members of the collective.  With that legal vulnerability, why would you risk your year to have a month-long party that is costly, reduces your work productivity, and may transform your legal work into a felony?  Trim is not the time to rage, but is instead the time that your responsibility should actually tighten up.  

And while this should go without saying, its sad that I still have to stress that you should not invite cokeheads, other druggies or straight idiots to your work.  God knows there are plenty of them in town, but they should be shunned at this time of year more than ever. And seriously, do not allow folks on probation or who have an active “4th Waiver” to work for you.  I mean, seriously?!

So have a good time with your collective and enjoy each other’s company, but remember that trim is a time for collective work, not for debauchery.  Be happy, but be wise!

3.     Your workers need to be members of your collective.

As noted above, trimmers should be members of your collective in order to legally trim for you.  So make sure that any trimmers sign a document indicating that they are members of your collective before they start any work!!! 

Do this with ALL of your workers, even if they are from out of state or international.  While the law does not technically recognize trimming by non-patients, the law also does not recognize a lab to test medical cannabis or a security guard who works at a dispensary.  That means that there are some types of conduct that are so socially acceptable and even so socially desirable to warrant an accepted exception from criminal law.  While trimming (i.e. processing) is not quite on par with laboratory testing in terms of social acceptability, failing to preserve the collective status of the workers who are not medical cannabis patients precludes your badass defense attorneys (such as myself) from a possible Equal Protection or other Constitutional motion to dismiss any criminal case for treating trimmers different from labs, despite that both trimmers and lab techs “process” cannabis to a similar degree.

So the moral of this story is to preserve any collective defense by having your trimmers join your collective.  Its easy to do, so there is literally no reason not to, except if you are trying hard to be a dumbass.

4.         Trim Should be a Healthy Environment for Processing an Herbal Medicine.

It is very important that your trim is run in a manner that is respectful to the powerful plant medicine that you are working with. 

Please recall that this herb has long been considered the healing of the nation, and that more and more studies are being released showing cannabis’ ability to perhaps cure cancer in some cases by causing apoptosis, or the healthy killing off of unhealthy cells that could devolve into cancer.  So consider your cannabis to be a medicine or, at very least, a food, and treat it as such.  Your workers should wear gloves, the medicine should be stored in a manner that is worthy of a medicine, and please don’t let your workers smoke cigarettes when they are working with the cannabis!  Come on, dude.  

5.         Be Nice to Cops, but Don’t Say Shit.

No one wants to hear the painful truth that cops could raid your trim scene, but we all must remain cognizant that law enforcement is doing everything they can do ferret out and prosecute trim scenes during the next two months.  Be safe rather than sorry.  You are fortunate to live in an area with numerous capable criminal defense attorneys, so call your local lawyer and get some of their business cards to keep by your front door or to hang at the garden, carport, garage, or wherever your workers are posted up.  

Remember that if cops do arrive at your gate, do NOT allow them inside without a warrant, but please be kind to them.  Our law enforcement is just doing their job, which for now still includes the ferreting out of criminals who have infiltrated the medical cannabis marketplace, such as those drug trafficking organizations who are happy to use Avid on their plants, those who illegally divert water from the Yuba, those who don’t mind spilling their excess fert or (gasp!) pesticides into the river, and the slim few who use violence in their dealings (although you should not forget that it was actually a federal agent who was arrested last year for being one of those who were violently robbing gardens in the area).

So please be respectful to law enforcement, but do not roll over for them.  You have rights! Use them! Make sure all of your workers have an attorney’s business card in their wallet or pocket at all times while they are working for you and that they are all advised that the policy of your collective is to request a lawyer and make NO STATEMENTS TO LAW ENFORCEMENT!!!  Don’t be shy about talking to your workers about this, as this advisement is a critical part of your basic due diligence in managing your collective’s trim scene.  If you are too scared or embarrassed to talk about these issues with your workers, then get a new job, since you clearly can’t handle the realities of this work. 

Here’s a short recap of this section, since it is by far the most important piece of this article:

  • Don’t consent to law enforcement entering your property, or any property you are working on. 
  • If cops come on the property for any reason, do not make any statements and in particular do NOT admit that you were trimming!  You are allowed and encouraged to point them to your collective paperwork.
  • Affirmatively ask for your attorney. You must expressly ask for your attorney in order for this right to be properly invoked. 
  • Make sure that any and all workers understand that the previous three rules are the policy of your collective and also that they have the contact information of an attorney.  *Remember that this is your duty as the project manager.  If you don’t like it, get another job.  

6.         Get Prepared for The Sweeping Changes in the Future.

Ya’ll betta recognize that there are sweeping changes coming to trim scenes around the state in the next couple years with AB266 and with the possibility of adult-use (inappropriately, but often, called “recreational”) legalization.  So next year, I will be asking growers and trim scene managers require their workers be registered to vote and that they do vote, but we’re not quite there yet.  It has never been more important, however, to get involved in some way, even if that involvement is merely registering to vote yourself.  If you have 99 full season outdoor plants but you don’t want to “like” the Nevada County Chapter of the California Growers Association on Facebook, your priorities are out of whack, as you are working in full knowledge of law enforcement while at the same time harming your own scene by refusing to take part in our shared future.  Can you really think the DEA is watching your Facebook “likes” but has turned a blind eye to your ½ acre of 10 foot cannabis plants?  Not likely.  So get real and get involved, since it will soon be “do or die” time for your scene. 

Its time to protect what you’ve got or you’re gonna lose it.  #straighttalk 

                                                         ***
So that’s about it for now.  Please have a happy and healthy harvest season! 

          Love and Mad Respect, xoxoxox  <3 
          The Law Offices of Heather L. Burke

#protectourfarmers #thefarmerslawyer #legalizeit #cali4life #happyharvest #bewise #hugyourfamily #begoodfamily #realfamilyvalues #itsthattimeagain #hunkerdown #donttalktocops 

*As always, I offer a musical meditation for this post. Today’s is: John Holt, “Police in Helicopter” 

Is Your Grow Legit?

Is Your Grow Legit?

It is no secret that California’s medical cannabis laws are infamously vague.  However, there are numerous common sense moves a smart cannabis grower can do to be as legit as possible in today’s hazy legal environment.  The gist of these moves is grounded in responsible stewardship, both of this plant that has been used medicinally by over a million people in California alone, and also of the natural environment that we fiercely protect here in the Sierra Nevada foothills.

A short summary of State law regarding cannabis gardens is a helpful starting point.  In this state, cannabis cultivation is by default a felony.  However, that illegality is excused (and thus legal) in three situations: (1) where growers can prove they are growing for their own personal medical use, (2) where growers can prove they are growing for the medical use of someone they care for, or (3) where growers can prove they cultivate cannabis for a medical cannabis collective or cooperative.  As the caregiving exception is largely limited to nurses and spouses of dying people, the most commonly available avenue for legitimacy for non-caregiving cultivators today is to operate the garden collectively or a cooperatively when the garden would produce far more cannabis than is needed for their own personal use.

The law that allows a collective or cooperative garden says that patients “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes” will not be subject to the default felonies that would otherwise apply.  Since this statute does not define what it means to “associate” to “collectively or cooperatively,” law enforcement usually wants cooperatives to be formally registered with the state as a regular business, as dispensaries will often do.  However, the statute is notoriously vague in its inability to define what a “collective” is with any specificity. 

So, while there is no magic paperwork that can be filed to become a collective, there are several clear rules of (a green) thumb to abide by when planning to grow this herb.  The most important of which is that the expected yield of the plants must be reasonably related to the number of patients in the collective cultivation project.  That means that, even if your doctor gives you a “script” for 99 plants or 5 million pounds, a cop will likely have a good chuckle as they slap the cuffs on if you claim those 99 ‘12-footers’ are all for your own personal use.  While a good criminal defense attorney may get a Not Guilty verdict later on down the road because of that recommendation, I don’t know anyone who wants to be arrested and go to a jury trial in order to prove they were legit.  So, be wise; make a yield estimate based on common sense and extrapolate back from there to find a reasonable number of patients that must be in your collective.  There is no exact science for the yield, nor for how much cannabis the various patients can reasonably use, but using wisdom and common sense in planning out your garden will get you far.

Additionally, either make sure the other patients in your collective know that you are cultivating cannabis on their behalf, or to associate with a dispensary for which you become a “member grower.”  BEWARE of any shadeballs, including shady attorneys, who will sell you patient recommendations.  Buying recommendations, even (or especially) from attorneys, may constitute fraud, conspiracy, aiding and abetting, and a litany of other state and federal crimes, for both the attorney, who in reality is nothing more than an illegal script-peddler, and also for the grower in some instances. While a cannabis conviction carries arguably minimal repercussions, convictions for fraud and other crimes related to the buying and selling of scripts would be devastating.  

Another rule of green thumb is that collective grows are supposed to be non-profit.  What “non-profit” means unsurprisingly has been the subject of much debate.  The appellate courts over the past few years have essentially forced cops, prosecutors and trial judges to accept that cultivators can be compensated for their expenses and labor but, until banks are allowed to accept cannabis-related monies, the financial workings of a cannabis garden will always be suspect to law enforcement.  So go meet with a tax attorney or CPA who specializes in medical marijuana issues and take all reasonable precautions with your money.

The final piece of growing legal is to grow green.  Please, never divert water from the Yuba watershed unless you have the proper permits, and always make sure you store and dispose of nutrients or pesticides wisely.  Good gardening demands a symbiotic relationship with the earth, so learn and utilize best management practices, or “BMPs,” for cannabis cultivation.  The foothills are full of organizations working hard to give you the information you need to use these BMPs, so its high time local growers take BMPs seriously. If you are understandably uncomfortable with going to those meetings, quietly seek out those longtime growers in the area who are more than willing to share their green techniques privately. So get with the times and get green.                        

The takeaway from this article is nothing more than to seek wisdom and common sense in all your cannabis-related endeavors.  If you moved to the foothills for the sole purpose of growing cannabis, please respect our land and our community by being a good steward of this venerated plant and of the natural resources intimately involved in growing it. For those who strive to grow legally and use care in their practices, cannabis cultivation is an honorable profession that demands respect.  Let’s keep it that way.