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All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
The U.S. Supreme Court decided two cases this morning involving the reach of federal law under the Commerce Clauses of the Constitution.

Taylor v. United States, No. 14-6166, deals with one of the broadest laws for extending federal criminal jurisdiction to seemingly local cases, the Hobbs Act.  Any robbery affecting interstate commerce is within federal jurisdiction, and given the post-1937 definition of interstate commerce, that is a very broad sweep.  In today's case, any robbery of drug dealers can be a federal offense.

RJR Nabisco v. European Community, No. 15-138, involves civil suits under the Racketeer Influenced and Corrupt Organizations Act.  The Court puts some limits on this much-misused procedure, blocking civil RICO suits where the acts are all outside the United States.
In an age where the federal government is a gargantuan burlesque of the Framers' vision  --  of late instructing local schools about who can use which shower and bathroom, and local judges about when they may (and may not) enforce traffic fines against scofflaws  --  it's easy to see the appeal of libertarianism.

Easy, that is, until libertarians start talking:

During the [Libertarian Party Convention] presidential candidate debate, the room went wild for suggestions of abolishing the Federal Reserve, state-sponsored education, and gun control.

"I believe in a world where gay married couples can defend their marijuana fields with submachine guns, aw yeah baby!" conservative libertarian Austin Petersen said.

"Crystal meth should be as legal as tomatoes," another candidate Daryl Perry declared. 

I'm all for the right to defend your person and your home with force, including, in cases of imminent danger of grave bodily harm, guns.  But using an AK-47 to defend your pot grow, is, well......

What else is there to say here, except that those in search of a third party should check out whether those things in their sandwiches are really tomatoes. 

One of the arguments for legalizing dope is that, given the fact that people are going to use one kind of intoxicant or another, we'll be better off, and safer (on the road, for example), if they're stoned rather than plastered.  Essentially, the theory is that, to some significant extent, we'll trade alcohol consumption for dope smoking, and that the dopers will be more laid back, and take it easier, than the drunks.

Prof. Doug Berman has made this argument numerous times.

It's an empirical proposition, of course.  We can test it by looking to the states in which recreational dope is legal (under state law), and thus more readily available.  (The additional advantage, we are told, is that legalized dope will be regulated, and thus less subject to adulteration and other perils of a black market product).

Q:  So how are things working out in the largest of the legalized pot states, Colorado?  Is  alcohol consumption lower than in states where dope remains illegal?

A:  See this Denver Post article, "Colorado Stands Out for Consuming Drugs, Alcohol  -- High levels of pot consumption expected, but Colorado stands out for other inebriants, too."

Oh well.
Subtitle:  Pot Is Wonderful, Only Not So Much.

From Fox19Now, a TV station in Ohio:

A man in a Hamilton County courtroom finally gave in and pulled out two bags of pot from his underwear- a move that landed him an extra day of jail.

Hamilton County Municipal Court Judge Bernie Bouchard stopped court on Wednesday after an overwhelming smell of marijuana allegedly took over the courtroom. 

Bouchard gave everyone a chance to claim responsibility for the marijuana before he ordered deputies to bring drug dogs in the courtroom. 

The defendant, Darius Dabney, raised his hand and admitted to smoking marijuana before entering the courthouse.  

The ensuing exchange between the judge, the defendant and his lawyer is a hoot.  You can read it in the link

Last month, the U.S. Supreme Court heard oral argument in three "drunk driver" cases.  The defendants in those cases challenged the criminal penalty that attaches when an arrested suspected drunk driver refuses to take a chemical test to determine the driver's blood alcohol level.  CJLF filed an amicus brief in one of the cases (Beylund v. Levi) in support of the implied consent and criminal refusal laws.

The amount of alcohol in a person's blood is scientifically easy to determine.  Most people agree that drunk people should not operate a motor vehicle.  But what about stoned drivers?  Driving under the influence of "any drug" is a crime in California (Vehicle Code 23152(e)).  But, there is no established legal limit for marijuana like there is for alcohol.

5 Reasons Marijuana Is Not Medicine

Bertha Madras, professor of psychobiology at McLean Hospital and Harvard Medical School, has this article in the WaPo with the above title.

Data from 2015 indicate that 30 percent of current cannabis users harbor a use disorder -- more Americans are dependent on cannabis than on any other illicit drug. Yet marijuana advocates have relentlessly pressured the federal government to shift marijuana from Schedule I -- the most restrictive category of drug -- to another schedule or to de-schedule it completely. Their rationale? "States have already approved medical marijuana"; "rescheduling will open the floodgates for research"; and "many people claim that marijuana alone alleviates their symptoms."

Yet unlike drugs approved by the Food and Drug Administration, "dispensary marijuana" has no quality control, no standardized composition or dosage for specific medical conditions. It has no prescribing information or no high-quality studies of effectiveness or long-term safety. While the FDA is not averse to approving cannabinoids as medicines and has approved two cannabinoid medications, the decision to keep marijuana in Schedule I was reaffirmed in a 2015 federal court ruling. That ruling was correct.

Was Prince Killed By Illegal Drugs?

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The iconic and eclectic musician Prince (his given first name was indeed "Prince") died yesterday.  There are already strong indications he was killed by heroin or some illegally obtained opioid.  The NY Daily News reports:

Prince received drug overdose treatment six days before his death during his plane's emergency landing in rural Illinois, according to a report.

Medical examiners are investigating the cause of the 57-year-old legendary musician's Thursday death at his Minnesota estate. But doctors in Moline, Ill., only 48 minutes from his home, gave Prince a so-called "save shot" during the emergency stop last Friday, TMZ reported.


The "save shots" usually help combat opiates, such as heroin and narcotic painkillers, in the bloodstream. Doctors and paramedics have used the injectable medication, called naloxone, for years, according to WebMD.

As this tragic incident certainly seems to illustrate, "save" shots are not the answer as long as the next patch of drugs is available.  We cannot play just defense against heroin and similar drugs; it just doesn't work.  We have to play offense.

Question:  Do we go on offense against illegal drugs by enacting softer sentences for their dealers, as the SRCA would allow?  Answer:  You don't need an answer.  It answers itself.  

A Crisis in Overdose Deaths

While Congress plays footsie with reducing prison terms for drug dealers (as proposed in the SRCA), the people who manufacture and sell this poison are busier than ever.  Hence, this story from CBS News:  Opioid Overdoses Kill 10 People in 12 Days in Sacramento area.

[Jerome Butler's] death was one of 10 in the Sacramento area in just 12 days that doctors have traced to heavy fentanyl-laced narcotics being sold as generic opioids on the streets.

"This is not bathroom biochemistry. It's going to be very sophisticated." Sophisticated and deadly, said Dr. Timothy Albertson, a toxicologist at UC Davis Medical Center.

"It is probably 100 times more potent that than morphine."

DEA special agent John Martin says the illegal fentanyl has made a long journey to get here.

"We believe it is manufactured in China, it is being distributed to Mexico, it is brought up through the normal drug smuggling routes of the southwest border."

In other words, this is not the legitimate pharmaceutical industry, nor is it over-prescribing pain doctors.  It's the drug cartels and their street pushers  --  exactly the people backers of the SRCA blandly (and deceitfully) describe as "low-level, non-violent offenders."

Perhaps the comments section will tell us why people who distribute this stuff on Sacramento's streets should have softer sentencing at the very moment their quite lucrative business is making life busy in the morgue.

Some of the best information we have in social sciences comes from longitudinal studies, where people are followed and data gathered over a long period of time.  Such studies are more likely to give us definitive answers than "snapshot" correlational studies that look at a sample at one time and merely tell us that certain factors tend to go together in members of the sample.

The problem with longitudinal studies, of course, is that they necessarily take a very long time to do.  Some of the best work has come out of New Zealand.  Magdalena Cerda, Terrie Moffitt, et al. have this article in Clinical Psychological Science on results from the Dunedin Longitudinal Study on the long-term effects of persistent marijuana use.  Here is the abstract:

With the increasing legalization of cannabis, understanding the consequences of cannabis use is particularly timely.  We examined the association between cannabis use and dependence, prospectively assessed between ages 18 and 38, and economic and social problems at age 38. We studied participants in the Dunedin Longitudinal Study, a cohort (N = 1,037) followed from birth to age 38. Study members with regular cannabis use and persistent dependence experienced downward socioeconomic mobility, more financial difficulties, workplace problems, and relationship conflict in early midlife. Cannabis dependence was not linked to traffic-related convictions.  Associations were not explained by socioeconomic adversity, childhood psychopathology, achievement orientation, or family structure; cannabis-related criminal convictions; early onset of cannabis dependence; or comorbid substance dependence. Cannabis dependence was associated with more financial difficulties than was alcohol dependence; no difference was found in risks for other economic or social problems.  Cannabis dependence is not associated with fewer harmful economic and social problems than alcohol dependence.

The Mask Drops, Again

Lest anyone be fooled about the ultimate aim of the pot legalization movement, this article featured on SL&P should clear it up. The idea is that legalizing pot is where we should start, but legalizing everything  --  meth, heroin, crack, all of it  --  is where we should end up.  

We are told that the way to "win" the war on drugs is complete and unconditional surrender.  One might think that using language in that upside-down way reveals that the movement has been smoking............something.

Could anyone doubt that full drug legalization will mean increased drug use?  I mean, what else happens when we lower the costs and risks of using X?  We get more of X.  And what will happen when we get more consumption of meth, heroin and all the rest? We'll get more addiction and more death.

Why would anyone want that?  

Part of the answer is that a segment of the legalization movement wants it in the name of "personal liberty."  That is a principled position, but, for my money (and that of a huge majority of the public), the price is too high.  But there's a more sinister aspect to this, as well:  Part of the legalize-everything movement simply wants a weaker America, knowing that a more-drug consuming America will be exactly that.

Just Say "Rest in Peace"

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If we really wanted to reduce the incarceration of drug dealers without endangering public safety -- and reduce the massive harm caused by drug abuse at the same time -- the best way to do it would be to convince people, especially young people, not to use drugs.

Nancy Reagan's "Just Say No" campaign was widely reviled and ridiculed by the "cool kids" of America's media and academia.  But it worked.  Drug use among America's youngsters took a major plunge.  The abandonment of that effort was one of the worst mistakes of modern history.

Nancy Reagan did far more good for the country than the First Ladies more widely admired in popular culture.  May she rest in peace.

Heroin Strikes; One State Fights Back

In the ground war against the heroin epidemic, Kentucky goes on offense.  Note the lopsided vote:

Anyone convicted of selling any amount of heroin for the first time would be a felon in Kentucky under a bill that has cleared the state Senate.

The Senate voted 31-6 to approve the bill on Wednesday. Kentucky lowered penalties for some heroin dealers in 2011. Since then, heroin use has increased significantly and overdose deaths have soared.

State Sen. John Schickel of Union said he voted to lower the penalties in 2011 and has regretted it ever since. Some Democrats opposed the bill, arguing it would put low-level addicts behind bars without treating their underlying substance abuse problem.

Could someone remind me which state Senate Majority Leader Mitch McConnell represents?

Among those who favor lowering sentences for heroin traffickers, the surge in overdose deaths is a problem.  They understand that the public is unlikely to want to water-down the penalties for the people helping to produce the surge.  Thus it has become a popular refrain that the major driver of the problem is not smack pushers but, instead, opioid addiction driven by "Big Pharma" and unethical pain doctors.

The difficulty, as is often the case with sentencing reform advocates, is that the refrain is made up, as Brian Blake at the Hudson Institute explains:

A new, peer-reviewed article in the New England Journal of Medicine contradicts the White House claim that the huge increase in heroin overdose deaths--440 percent in the past seven years--is directly related to prescription pain killers and changes in prescribing policies aimed at making them harder to obtain and abuse.

The article, authored by some of the federal government's leading addiction researchers at the National Institute on Drug Abuse, the Food and Drug Administration, and the Centers for Disease Control and Prevention, surveys dozens of recent, peer-reviewed studies on heroin use, initiation patterns, overdose deaths, and the effects of policy changes in prescribing opioids. Ultimately, they find "there is no consistent evidence of an association between the implementation of policies related to prescription opioids and increases in the rates of heroin use or deaths." Instead, the authors conclude that "heroin market forces, including increased accessibility, reduced price, and high purity of heroin appear to be major drivers of the recent increases in rates of heroin use."

No Recidivism to See Here, Move Along

Together with the knowingly false refrain that those given early release under sentencing "reform" will be limited to low level, non-violent types, we hear even more frequently that they are at "low risk" to re-offend.  Every time I've mentioned the Justice Department's own 77% figure for the recidivism rate of drug offenders, the point has been ridiculed or minimized.

The minimization effort is understandable, because propping up the myth of "they'll-go-straight-this-time" is necessary for the success of the sentencing reform agenda. If reformers told the plain truth  --  that, according to DOJ's largest study ever, slightly over three-quarters of felony-level drug inmates go back to crime after release  --  no one would be in a big rush to release them earlier. More crime faster isn't a big sell. The reform agenda would implode.

In the real world, the only surprising thing about recidivism from the beneficiaries of sentencing reform is how little time it takes them to get back in business.  Thus I bring you the story of today's Mr. Nicey, Jason Saunders.  Saunders was sentenced for a crack cocaine offense in June 2014.  He got 41 months.  But because of retroactively lighter sentences engineered by our carefree federal Sentencing Commission, Saunders' sentence was reduced, and he was released in November 2015.

He was arrested on January 6, 2016.  But it was not for precisely the same offense. He had moved up to heroin.  Specifically, he was arrested for robbery of 480 heroin stamps.

Still, no recidivism worth mentioning here, people, move along...................

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