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May 24, 2013

Final Regulations Approved for Medical Marijuana Law

On May 24th, the legislation that voters passed in November to legalize marijuana use for medical purposes will go into effect. Final regulations for the law were approved on May 8h, and provide for how the law will be implemented and many other related things. Although it will still be months before the first dispensaries open and the effects of the law are felt around the state, several important decisions have been made.

These regulations include factors that decide who will be eligible and how the process will work. It defines which medical conditions are debilitating enough to warrant the use of medical marijuana. For instance, a life-limiting illness for patients under 18 has been redefined so that a patient expected to live for as much as two years longer is eligible, as opposed to the six month limit written previously. In addition, these patients who are under 18 need not have a life-limiting illness to be eligible- those with a debilitating medical condition could qualify with written notices from two physicians.

Many other important things have been defined as well. The maximum 60-day supply for a patient to legally posses has been set at 10 ounces of the finished leaf product. The relationship that the bona fide physician must have with a patient in order to be able to certify the patient for medical marijuana has also been set. This includes an item prohibiting physicians for certifying members of their immediate family. Framework has also been put in place for the municipal involvement and oversight in regards to regulation, so long as the local regulations are not in conflict with state law.

There was also a revision made to a requirement that stated Registered Marijuana Dispensaries (RMDs) had to keep a $500,000 escrow account to show their financial viability. Now, applicants must show that they have at least $500,000 available in liquid capital for their first RMD, and $400,000 for each location thereafter.

A new requirement applies to the testing of all marijuana sold at dispensaries. Previously, RMDs would have been able to test their own product. However, the new proposal will require testing by an independent lab to ensure the safety and quality of all medical marijuana sold in the state. Testing will be done for contaminants, including pesticides and mold. It will also be used to identify the active chemical compounds.

RMDs will also be required to have liability insurance. This is to protect the dispensary from liability if customers are harmed. However, there is concern as to whether or not insurance companies will be willing to offer coverage, as medical marijuana remains illegal on a federal level. This requirement and the testing requirement are both unique to Massachusetts.

There are still many things that must happen between now and the opening of the first dispensaries. For instance, the Department of Public Health must review and license sellers, set licensing fees, and create a system to register and track both the patients and dispensaries. However, with the passage of these regulations the process continues to move for

April 27, 2012

Drug Evidence Discovered Missing from Secure Storage

According to the Boston Globe, a recent routine audit of physical evidence held at the Boston Police Department's drug depository, has shown a discrepancy. The random sampling of 500 pieces of evidence, executed by the Boston Police Audit and Review Unit, was all accounted for with the exception of one package of evidence.

Boston Police spokesperson, Elaine Driscoll, has stated that the department is now trying to discover what has caused the particular piece of evidence to have gone missing. "The Boston Police Department is taking every appropriate investigative measure to reconcile that discrepancy. Those findings will determine if other investigative steps will be necessary."

After a January 2008 audit found that drugs were missing or stolen from 265 cases, the department reorganized its drug evidence storage procedures. Drugs missing included heroin, cocaine, and marijuana, but most were prescription oxycodone. The Globe reported last year that no one had faced internal discipline or criminal charges.

To read the full article click here.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

This will be an interesting investigation to keep an eye on because anytime evidence goes missing, it is a huge deal! In an attempt to minimize the risk of issues regarding missing evidence, both the Massachusetts Rules of Criminal Procedure and the Boston Police Department policies provide for strict guidelines instructing the appropriate manner in which to handle and store evidence. It is essential that such guidelines are followed in order to preserve evidence and prevent the possibility of contamination or any tampering therewith.

Occasionally, during the course of a criminal case, issues may arise with regard to the storage and transfer of important pieces of evidence that the Commonwealth intends to offer against the defendant. For example, an experienced criminal defense attorney may file a motion to suppress evidence on the grounds that the Commonwealth can not sufficiently establish the "chain of custody" of the piece of evidence that is meant to be offered. Essentially, to establish the "chain of custody," the Commonwealth often introduces sworn testimony of the custodian of the evidence in question in an effort to prove: 1) the receipt of the item; 2) the ultimate disposition of the item, (i.e. - whether the item was stored, transferred, tested, etc.); and, 3) the steps taken to safeguard the item during the time that it was in custody, specifically designed to prevent the contamination of, or tampering with the piece of evidence. Notwithstanding, the court will not automatically exclude evidence when there is a question as to the sufficiency of its storage or the record indicates the possibility of a "missing link" in the "chain of custody."

Instead, the court exercises its discretion in order to fashion the most equitable remedy given the specific circumstances of the particular case and piece of evidence that is involved. The court will generally look to the materiality of the evidence (i.e. - its evidentiary value with respect to the criminal case in which it is being offered), and whether the record indicates a likelihood of contamination of the evidence. Additionally, the court will often consider whether the exclusion of the particular piece of evidence will result in significant prejudice to either the Commonwealth or the defendant. Like so many components of criminal proceedings, the underlying objective is to afford every individual charged with a criminal offense in the Commonwealth of Massachusetts due process to the full extent of the law, in accordance with the fundamental rights guaranteed by both the United States Constitution and the Declaration of Rights of the Commonwealth of Massachusetts.

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September 14, 2011

Three Men Killed in Waltham Apartment Building

Around 2:25 p.m. on Monday September 12, Waltham Police responded to a Harding Street apartment where three men had been killed, though the manner of death has not been disclosed. A preliminary police investigation has indicated that the killing was not a random act and that the assailants knew the victims.

A witness told news reports that they saw a girl running out of the apartment screaming, "blood everywhere" and that marijuana was covering the bodies. The Middlesex district attorney's office has not confirmed, however, that drugs played a part in the death.

The DA's office is currently investigating and searching for two suspects who were at the apartment during the time of the murder. The house, which was in a largely residential area, was being rented by the victims. Waltham police told reporters there had been two other murders in the city within the last year.

The full article can be seen here.

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October 1, 2010

California Governor Arnold Schwarzenegger Decriminalizes Criminal Charge for Possession of an Ounce of Marijuana

On Thursday September 30, 2010, Governor Schwarzenegger signed into law Proposition 19, a bill that downgrades possession of an ounce of less of marijuana from a misdemeanor to an infraction - punishable by a fine. "I am signing this measure because possession of less than an ounce of marijuana is an infraction in everything by name," stated the Governor as he signed the bill. This bill does not legalize marijuana usage, it just reduces the penalty - marijuana is still illegal in California. In essence, the bill treats possession of a small amount of pot similar to a parking ticket, by a fine of no more than $100. But don't toke up yet, the bill doesn't go into effect until January 1, 2011.

SB 1449 was written by state Senator Mark Leno, of San Francisco, who claims the law will keep marijuana-related cases from clogging up the court system. Even as a crime, the maximum penalty for possession under an ounce in marijuana was a fine up to $100, and no jail time. These charges significantly drained the already cash-strapped and debt-ridden state of time, money and other resources. For a prosecutor and a public defender to spend time over one of these cases is just a joke - it's the least efficient use of time in the court system. Governor Schwarzenegger said it best: In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot afford to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket.

However, don't think this means legalization of pot is around the corner. It seems the sole purpose of this bill is economic - not social. The only reason Schwarzenegger signed this bill is to save money. The Governor still adamantly opposes SB 1449. Better known as Proposition 19, this bill decriminalizes marijuana and allows for cultivation in the state. SB 1449 is controversial among the California legislature, with some claiming it will create jobs, while others argued legalizing drug use was morally wrong. The bill is nowhere near passing, especially with the Governor refusing the sign the bill into law, and claiming that if it passes it would turn California into a "laughingstock."

However, while this bill will inevitable save the state's legal system money, others still condemn the law. Randy Thomasson, president of savecalifornia.com, has been a long-time and outspoken critic of decriminalizing marijuana. According to Thomasson: "This virtual legalization of marijuana definitely sends the wrong message to teenagers and young adults. It invites youth to become addicted to mind-altering pot because there's not much hassle and no public stigma and no rehab if they're caught." Let's not forget that getting behind the wheel of a car after smoking a marijuana joint is the equivalent of driving after 2 or 3 beers (possibly more depending on the quality of pot). Driving under the influence (DUI) of marijuana is a growing concern in California, and this new law certainly doesn't help the situation.

The New York Times, October 1, 2010: California Reduces Its Penalty for Marijuana


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