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Field Drug Tests Defective

This stunning YouTube Video prepared with the help of Dr. Bronner’s soaps is a legal basis for throwing out a commonly used field test by hundreds of police agencies across the country called NarcoPouch.

In fact, it was instrumental in dropping charges against a band member in Southern California who was wrongly prosecuted based on the false presumption that his liquid soap was GHB. The false positive in the street field test led to his arrest. The crime lab’s testing eventually exonerated the accused musician.

It appears that the testing equipment utilized to ascertain GHB, a controlled substance, also tests positive for ANY natural or organic soap, such as Dr. Bronner’s Hemp-Pure Castille soap, readily available at Whole Foods markets locally. Further testing subsequently revealed that the popular NarcoPouch unit also tests positive on many colognes and perfumes.

Like the Intoxilyzer machines that have fallen under scrupulous legal review, if you can successfully show in a pre-trial motion that field-testing equipment is inherently compromised, the arrest itself can fail. Last week, the UK Guardian reported that a popular street side test for marijuana has also been compromised.

Known as the Duquenois-Levine, or D-L Test, it is produced by various for-profit manufacturers, and the standards to create the product are not exactly supervised by health agencies or homeland security. Not to be sarcastic, but you have to persuade a court that these companies have their own best pecuniary interests at heart, not the public good. We need to get the courts to presume fallibility.

Many of us already remember what happened to Robin Rae Brown on March 20, 2009, in Weston, here in Broward County, Florida. She parked her pickup truck and went for a hike off the beaten path along a remote canal and into the woods to bird watch and commune with nature. “I saw a bobcat and an osprey,” she recalls. “I stopped once in a nice spot beneath a tree, sat down and gave prayers of thanksgiving to God.”

Robin had packed a clay bowl and a “smudge stick,” a stalk-like bundle of sage, sweet grass, and lavender that she had bought at an airport gift shop in Albuquerque, New Mexico. Under the tree, she lit the end of the smudge stick and nestled it inside the bowl. She waved the smoke up toward her heart and over her head and prayed.

Spiritual people from many cultures, including Native Americans, consider smoke to be sacred, and believe it can carry their prayers to the heavens. Law enforcement does not so abide. I learned that on Star Island in the 1980’s counseling members of the Ethiopian Coptic Church, whose daily rituals of religious marijuana use were not accepted by the DEA, who raided and arrested them, chasing them from Florida.

Robin Brown’s bird watch became a nightmare leading to an illegal arrest. When she returned to her pickup truck, a Broward deputy and a Florida Fish and Wildlife lieutenant confronted her. One spotted her incense and asked if he could see it. He took the bowl and incense, asking whether it was marijuana.

Robin told the police it was her ‘smudge.’ “Smells like marijuana to me,” said the deputy, who admitted he had never heard of a smudge stick. He then took the incense back to his car and conducted a D-L field test, which proved ‘positive for marijuana.’ She was eventually arrested.

Robin’s case has gained notoriety because she later learned that her incense had never been subjected to a confirmatory lab test. The Broward state attorney negligently filed a criminal charge without the subsequent testing, and was sued after the charges against her were dropped. Robin’s lawyers so far have not prevailed based on statutory immunity. Sadly, the state is immune from its carelessness, but innocent citizens go to jail because of it.

The test itself works fine. The problem is that, in addition to identifying marijuana or hashish, the D-L test frequently reads positive for tea, nutmeg, sage, and dozens of other chemicals—including ‘resorcinols,’ a family of over-the-counter medicines, which, includes Sucrets throat lozenges.

In a 2008 article for the Texas Tech Law Review, Frederic Whitehurst, Executive Director for the Forensic Justice Project and formerly with the FBI, concluded: “We are arresting vast numbers of citizens for possession of a substance that we cannot identify by utilizing the forensic protocol that is presently in use in most crime labs in the United States.”

As renowned drug expert author, John Kelley, has pointed out in Alternet articles, there are many flaws emerging with these tests. In fact, the problem of “false positives” in drug tests isn’t just limited to substances that appear to resemble marijuana or GHB. In Canada, the owners of a family-based chocolatier business were fingered as dangerous drug dealers by a Duquenois field test and found themselves in jail. Incarceration by Chocolate!

The test, as shown in the Bronner soap video, above, is a simple chemical color reagent test. To administer the test, you simply break a seal on a tiny micropipette of chemicals, and insert a particle of the suspected substance. If the chemicals turn purple or green or a particular color, this indicates the possibility of marijuana or maybe GHB. But ‘possibility’ is not automatically, ‘reliability.’

As scientific examiners unearth new drug testing techniques, the defense bar needs to maximize ways to bust them for their fallibility.

Don’t walk your clients to the plea counter. Plead their case instead with pre trial motions that require the state to authenticate the drug testing sources that provided the basis for the initial arrest. You may have the fruits of a poisonous tree. Suck it dry for everything it is worth.

Norm Kent

Originally published, August, 2012

 

DEA Keeps It’s Head in the Sand — Refuses to Reschedule Cannabis

Despite the overwhelming shift in the way cannabis is viewed in this County, the DEA has again refused to remove it from Schedule I.  As you are probably aware, Schedule I is for drugs that have a “high potential for abuse” and “no accepted medical use”.  Even drugs like morphine and cocaine are placed in lower schedules.

At the urging of former governors from Rhode Island and Washington, the DEA agreed to reconsider the placement of cannabis in the most restrictive schedule.  However, a rescheduling was ultimately rejected, despite the fact that medical use of cannbis is supported by volumes of medical evidence and enjoys majority support all across the country.

The DEA did agree to expand research into medical marijuana, which is encouraging, but to continue placing pot in Schedule I, along with drugs like heroin and peyote, shows that the DEA has failed to read the writing on the wall.

Myopia in the Manors – FCC420’s Norm Kent Responds to Wilton Manors Anti-Dispensary Law

Florida Cannabis Consultant’s own Norm Kent has published an opinion piece about Wilton Manor’s proposed anti-dispensary law.  It has been published in the South Florida Gay News.

CLICK HERE to read the full article.

Questions of Corruption and Politics Surround Florida’s Medical Cannabis Licenses

Alternet has published an incredibly thorough and detailed examination of questions related to how Florida has awarded licenses to cultivate and dispense high-CBD cannabis.  The article is a condemnation of how Gov. Rick Scott’s administration has handled the process, and suggests that the licenses have been handed  out to politically connected entities with questionable qualifications.

There are allegations that some license holders, such as Surterra Therapeutics, have engaged in misrepresentation and plagiarism in their applications.  There is also an interesting examination of the political contributions and connections of several license holders.

As the vote on Amendment 2 approaches and the possibility of a much larger medical marijuana market is on the horizon, articles like the one published in Alternet are extremely important in determining how fair the dispensary licensing process is.  Will politicians continue to put profit before patients?

If you have an interest in how Florida is implementing its medical cannabis system, as a patient or an entrepreneur, then you really should read the Alternet article.

You can CLICK HERE to read the full article.

Wilton Manors Says “No Thanks” to Medical Pot Shops

The town of Wilton Manors, FL may have started as a working class suburb to Fort Lauderdale, but in recent years it has developed into one of the most progressive cities in the state.  It’s large LGBTQ population has generally brought with it a more tolerant view on most issues.

However, that openness might not extend to the use of medical cannabis.  The Wilton Manors City Commission has started the process of passing an ordinance that would strictly limit the presence of medical marijuana dispensaries in the city.  Specifically, the proposed law would prohibit cannabis dispensaries from locating within 1000 feet of schools, daycares, churches, and other locations.  This buffer zone would effectively eliminate dispensaries from all but a few locations  in the city.

The law also places restrictions on when dispensaries may be open (no later than 6pm and closed on Sundays).  It also requires twice daily trash removal  and “odor filtration” systems.  Additionally, the law seeks to prohibit certain “offensive” words in the business names used by dispensaries, such as “ganja”, “pot”, “weed”, etc.

It still remains to be seen whether this ordinance will pass, but it is likely to be one of many similar laws that will  pop up around the state as medical marijuana continues its march towards legalization.

The Publix War on Weed … Where Shopping Might Not Be a Pleasure

Floridians have always taken pride in having one of the nation’s best supermarket chains.  Publix usually enjoys a wonderful reputation based on its clean, well-stocked stores and its high level of customer service.  In fact, Publix recently placed second in a Consumer Reports ranking of all supermarkets nationwide.  Plus, their chicken fingers are the perfect remedy for a case of the munchies!

However, recent political contributions by Publix heiress, Carol Jenkins Barnett, is causing many advocates of medical marijuana to reconsider their support for this Florida grocery behemoth.  Ms. Barnett recently donated $800,000 to help fund the anti-medical marijuana campaign in Florida.  This donation comes as Floridians prepare to head to the polls for a crucial second chance vote to legalize medical cannabis.  It will  no doubt be used by anti-pot groups to fund advertising, which has been controversial for its dubious claims about the “dangers” of allowing legal access to patients.

So, next time you find yourself with the munchies, think about Ms. Barnett and consider Whole Foods, Trader Joe’s or  another one of the shopping options available in our state.

First Medical Marijuana Delivered in Florida! … Now What?

After a seemingly never-ending series of delays, lawsuits and other road blocks, the first delivery of medical cannabis under the Charlotte’s Web law has taken place.  This past week, a patient in Hudson, Florida legally received cannabis from the State’s first dispensary, Trulieve in Tallahassee.

Granted, the number of patients who qualify under the Charlotte’s Web law is quite limited and for most of them only low-THC cannabis is available.  However, this is still another important step in the path to sensible marijuana laws in Florida.  Another brick in the wall of prohibition has been chipped away.

So, the question is .. “Now What?”

Well, first and foremost, we will see the system for registering patients, certifying doctors and establishing dispensing organizations continue to develop and evolve.  There are currently only a handful of doctors who have completed the necessary class for certification to recommend cannabis.  But more are being added every day.  There is also only one dispensing organization actively distributing cannabis, but four more have been granted licenses and are working towards being operational.  The law has been modified to allow for more dispensing organizations as the patient pool expands.

The most notable event remaining on the horizon is the November 8th election.  On that date, Floridians will be given a second chance to pass a much broader medical cannabis law that will allow patients suffering from a much wider group of ailments to access marijuana legally.  If that measure passes, the face of medical cannabis will change drastically in the state.

So, this week’s developments show that we continue to move in the right direction, but there is still work that remains to be done as we work to knock down the wall of prohibition.

Florida Judge Rejects Challenge to CBD Medical Marijuana Licenses

If you remember the movie “Willy Wonka and the Chocolate Factory”, you will recall how children all over the world were clamoring to receive one of the five coveted Golden Tickets that were being hidden inside candy bars by the reclusive Mr. Wonka.  Florida’s High-CBD marijuana dispensary system is turning out to be a lot like that.  But this time, it’s the Department of Health that is handing out the five Golden Tickets and it is nurseries across the state who are competing for the chance to receive them.

And it should surprise nobody that, after the five licenses were handed out, the applicants who failed to receive one did not just go quietly into the night.  Instead, they headed directly to the Courthouse to file complaints and challenges to the manner in which the licenses were awarded.

Now, a Florida Administrative Judge has rejected one of those challenges.  McCrory’s Sunny Hill Nursery, who recently purchased an 180,000 foot facility to grow and process medical cannabis, had brought the challenge after it narrowly lost its bid for a license.  That license was ultimately awarded to Knox Nursery.  McCrory’s filed a challenge based upon allegations that scoring errors were made that negatively impacted its application and also argued that the license system amounted to an unconstitutional “special act”.

Administrative Law Judge Elizabeth McArthur rejected the arguments presented by McCrory as being unsupported or as being challenges that must be made outside of the administrative process.  It remains to be seen whether McCrory will appeal the ruling or seek review in other courts.

The Department of Health was represented by attorneys from the firm of Vezina, Lawrence and Piscitelli, who have been paid nearly $500,000.00 by the State thus far to handle challenges to the 2014 law which calls for limited access to “high THC / low CBD” cannabis.  The law has still not been fully implemented and no patients have received medical cannabis pursuant to the law despite the passage of more than a year’s time.

The five dispensary licenses have been highly sought due to speculation that a much broader medical marijuana law will pass in November, 2016.  It is believed by many that the five license holders will have a leg up on the competition if and when that law expands the market for medical marijuana in Florida.

Broward County Civil Citation Program for Cannabis Still Not Implemented

Recently, I wrote about how Palm Beach County Sheriff, Ric Bradshaw, has put the brakes on that county’s civil citation law for minor marijuana possession.  Residents of neighboring Broward County have also yet to see the implementation of the civil citation law passed in that county.

Nearly six months have passed since the Broward County Commission passed a law making possession of less than 20 grams of pot a civil violation with a small fine, however the system for issuing those citations has remained mired in bureaucratic red tape and delays since then.  In the meantime, 332 people have been arrested for pot possession and another 414 have been given notices to appear in court on criminal possession charges.

County representatives have blamed the delay on the necessity of setting up a new system for issuing the citations, handling receiving the payments, and addressing appeals from those cited.  While some time is expected to be necessary for setting up a new program, it is questionable that nearly six months would be necessary to implement a relatively simple and straight forward law.

To the south, Miami-Dade county already has its civil citation program up and running and over 1,000 citations have been issued.  The citizens of Broward county (and Palm Beach county) deserve to receive the benefit of this new legal trend and the delays (and outright obstruction in the case of Palm Beach) need to stop.

Palm Beach County Sheriff Puts the Brakes on Pot Decriminalization

In 2015, Palm Beach county joined Broward and Miami-Dade counties in pass an ordinance that would make possession of less than 20 grams of cannabis a civil infraction rather than a criminal offense.  This law would allow people caught with small quantities of pot to pay a $100 fine in lieu of facing criminal charges.  In essence, the new law allowed the police to treat minor marijuana offenses like a traffic ticket.

This change represented a crack in the draconian drug laws that Floridians must endure and was a clear step in the right direction.  However, the march towards a more sensible drug policy has hit a snag. Palm Beach County Sheriff, Ric Bradshaw, has now announced that he will instruct his officers not to issue civil citations and to continue arresting pot offenders under the criminal law.

The ordinance does provide that an individual police officer has the discretion to decide between issuing the civil infraction or making a criminal charge, but the Sheriff’s actions appear to remove that choice from the individual officer and impose an across the board policy.  Whether that action is legal in light of the new law is questionable.

Either way, this latest move by Sheriff Bradshaw just makes it clear that the fight to end marijuana prohibition continues for South Floridians, despite the progress we’ve seen in other parts of the country.