Wednesday, July 1, 2015

Miami-Dade County Authorizes Civil Fines for Pot Possession but Fails to Adopt Enforcement Guidelines ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

It's official.  Yesterday, Tuesday, June 30th, 2015 the Miami-Dade County Commission passed an Ordinance with a 10-3 vote which authorizes police NOT to arrest folks for possession of under 20 grams of marijuana and to instead issue a $100.00 civil citation which will not appear on one's criminal "record".  

BUT... is this just another case of "the path to Hell being paved with the best of intentions"?

The new Ordinance is certainly a step in the right direction, but I submit that it was, as are most things which are Legislatively accomplished in Florida (and elsewhere), not thought through and that it will, at least short term, lead to more problems than it will to the solution that it seeks to create.

As it stands marijuana is a controlled substance which is illegal as far as both the federal government and the State of Florida are concerned.  Possession of marijuana "under" (meaning possession of less than 20 grams without intention to sell) is a first degree misdemeanor (see F.S. 893.13(6)(b), which you can view here), and all Florida law enforcement officers are authorized to arrest anyone who violates this law.  Prior to yesterday Miami-Dade County Police Officers enjoyed two levels of discretion in enforcing this law:  1) Any individual officer could subvert her/his sworn duty to uphold the law and instead simply chose NOT to enforce the law (i.e. to warn the subject and not otherwise "formalize" the incident) or 2) To arrest the offender in one of two (2) ways, by either A) physically taking the subject into custody and causing the arrestee to be "booked" or B) issuing the subject a "PTA / NTA" (promise / notice to appear), which is in fact an arrest, albeit sans the booking process.  As of next week (when the new ordinance kicks in) there will be yet a third discretionary option, namely NOT to effectuate an arrest (either physical or on paper) and instead to issue a "civil citation" which the "offender" can then pay ($100.00) with neither criminal consequence nor a criminal record from the incident.  The $64,000.00 question (yes, I am that old) is:  How does a given cop decide who to cite vs. who to arrest (whether physical or on paper)?  Unfortunately, in Miami-Dade County the answer to that question is presently unknown.

Admittedly I do not know the nuances of the Ordinance (which, again, I whole heartily support) but with all of the articles and reports that I've read and seen I am unaware of any sort of guidelines or protocols or instructions or policies or even any scintilla of thought on this matter, yet this is a matter which should {have} be{en} well thought out beforehand.  Why?  Because a veritable sh*t storm is coming, that's why.

First, even "as is" there are on-going "selectivity" issues in regard to the unfettered discretion that all Florida cops enjoy in their decision-making process of physical vs. paper arrests for marijuana possession under.  Absent written departmental policies this decision is left to the sole discretion of the individual officer on the roadside, and in my nearly quarter century of criminal defense litigation practice (primarily in the 305) I can tell you that there is rhyme or reason for these decisions, but it always boils down to that officer's mood in the moment (and that "mood" is just as surely effected by factors such as race, sex, religion, color, creed, etc as it is by the attitude, behavior, prior criminal history and circumstances surrounding the incident itself). It's a sad reality that some cops are more inclined to physically arrest some folks than others; conversely, some cops are more likely to paper arrest some folks than others.  The thing is, that "as is", in either event the end is the same, to wit:  the subject is arrested, must go through the court process and face, at a minimum, a criminal arrest history.  With the new Ordinance in place, however, Miami-Dade County Police will now have the added discretion to choose who gets arrested and who get's "a {veritable} pass"... and, in my opinion, without strict guidelines this is a recipe for disaster.  Profiling, stereotyping, prejudice, bias... absent clear protocol as to who to "cite" vs who to arrest you can expect this imbalance to be the new "normal" in SoFlo.  

"Decriminalizing" marijuana (over, under, whatever) is an excellent start which will hopefully pave the way for full blown legalization (with attendant education, regulation and taxation), and while this Ordinance will benefit some it will surely prejudice others (and ultimately likely cost the 305 taxpayers more in the long run... expect lawsuits, lots of them).  Further, the new Ordinance is likely to result in other collateral confusion.  For example:   1) Apart from NOT BINDING IT'S OWN OFFICERS TO ANYTHING (caps intentional), the Miami-Dade County Ordinance does not bind any of the individual municipalities within the County (most of which have their own independent police departments, not too fail to mention having their own city / town / village ordinances), and there are 34 (thirty-four) of them in a two thousand (2,000) square mile area from Florida City to Aventura (you can view the statistics here). This also does not take into account the plethora of "other" law enforcement agencies which"operate" with Miami-Dade County borders (i.e. Florida Highway Patrol, Florida Fish and Wildlife, DOT etc, and the vast array of other State and federal agencies).  2) What is the consequence of on'e failure to pay a civil fine in a timely fashion?  Does it then transform like Optimus Prime into a criminal case?  If so is there going to be a double jeopardy challenge waiting to happen?  Expect lawsuits, appeals... legal aggravation in short.  3) The Ordinance does nothing for any of the folks who have been arrested or who are currently pending prosecution in Miami-Dade County for possession under... in other words it is not retroactive. Tacking on the initial, bigger and inherent bias / prejudice / stereotyping / profiling issue, and not that I expect anything less from the Miami-Dade Commissioners, these are the sort of "foresight" issues that responsible legislative bodies should be considering before recklessly passing laws (ordinances... whatever).  It is simply irresponsible to adopt the attitude that "we'll figure it out / worry about it later".

Again, I applaud the move.  In fact I think that it has to go further (but that's a matter for Tallahassee and Washington, DC, and, believe it or not, the Legislators and Congress folk in both of those towns are even more f*cked-up than the a**clowns down here)....

It's "high" time for the U.S. Government and all fifty (50) States to "wake up and smell the sensimilla".  Marijuana prohibition is every bit as stupid (yes "stupid") as was alcohol prohibition.  It promotes crime, denies freedom and redirects finances and other resources from potentially productive to utterly wasteful.

For more than 23 years Michael A. Haber, P.A. has been providing creative, effective and zealous advocacy and counsel in cases ranging from DUI to drug trafficking and from misdemeanors to first degree murder.  

At Michael A. Haber, P.A. "Its all about reasonable doubt"!

Michael A. Haber, Esq. is prepared to speak with you about your case!

Cell: 305-798-2220; Office: 305-381-8686; Toll Free: 1-888-SHARK-8-1


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