John Maher: I am John Maher, and I'm here today with Ted Lothstein with the law office of Lothstein Guerriero with offices in Concord and Keene, New Hampshire.
Lothstein Guerriero represents people charged with crime around the state New Hampshire in both state and federal court, in trial courts, and on appeal. Today we're talking about Marijuana laws in New Hampshire. Welcome Ted.
Ted Lothstein: Thanks John. Glad to be here.
John: So, Ted, what are criminal laws relating to Marijuana in New Hampshire?
Ted: So, first you have to separate out the two jurisdictions. New Hampshire has state laws that criminalize the possession, manufacturing, distribution et cetera of the Marijuana. And then, of course, the feds, the federal government, has criminal laws that criminalize any possession, manufacturing, distribution of marijuana for any purpose.
New Hampshire has a medical marijuana law on the books, and it's effective, but it's meaningless at this point because New Hampshire has not yet set up the required…or they haven't approved any of the required distribution centers, treatment centers, that are the only places that can dispense it.
So for all intents and purposes, in both the state and with the feds, it's a crime to possess marijuana in New Hampshire for any reason, even a medical reason.
So when you asked that question, "What are the laws?", marijuana possession is a misdemeanor that can be prosecuted in any district court or superior court in the state courts in New Hampshire.
Marijuana possession can be prosecuted in the United States District Court as a federal crime but that is -- I want to say extremely rare, but it's probably more accurate to say it's unheard of. It's not prosecuted in federal court in this state.
And marijuana manufacturing or sale, distribution, can be prosecuted in either state court or federal court, and the feds do prosecute manufacturer and distribution of marijuana in large quantities. They just don't prosecute simple possession.
John: What courts in New Hampshire have jurisdiction over marijuana crimes?
Ted: If it's a misdemeanor, it can be prosecuted really in any trial level court in New Hampshire. It can be prosecuted in a local district court, it can be prosecuted in a superior court. The superior courts tend to focus on felony offences.
Marijuana is written up in the laws as a Class A Misdemeanor. I'm talking about possession now. But possession of marijuana is more commonly prosecuted, almost always, as a so‑called Class B Misdemeanor, a less serious misdemeanor. That would only be prosecuted in a district court.
Now, when it comes to felony level marijuana cases -- in state court, to be a felony, it really doesn't matter how much marijuana you have. To be a felony, there has to be an intent to distribute it or the person has to have manufactured it, in other words, grown it.
Distribution by the way can be giving it away, it just means some transfer of the marijuana. If it's a felony, then it has to be prosecuted in a superior court. That's a county wide court in New Hampshire.
John: Does Lothstein Guerriero practice in those courts?
Ted: We do. We practice in all district courts for drug crimes. We'll generally practice in all superior courts as well. Sometimes if it's a very far away superior court, depending on the type of case, we may work with another lawyer that's local to that court, but we do practice in all courts in the state.
Now, to expand upon my earlier answer, John, when you talk about felony level marijuana cases in New Hampshire -- like I said, what makes it a felony is not necessarily the amount but the intent.
I can sell less than an ounce of marijuana or manufacture less than an ounce of marijuana, I guess growing a very small plant, John, and that would be a felony. Then, the level of the felony is, essentially, how much prison time the person could possibly face, that's what depends on the amount of marijuana.
For manufacturing, selling, distributing less than an ounce, I could face up to three years in a man's prison. If my client is manufacturing, selling, distributing more than an ounce, but less than five pounds, she could face up to seven years in the New Hampshire State Prison.
And if the person is manufacturing, distributing, selling more than five pounds of marijuana, which is a lot, they can face up to 20 years in state prison in New Hampshire.
And then New Hampshire has a law that if the person has a prior drug offence, even a very low level, like first offence possession of marijuana, for example -- if they have a prior drug offence in their record, then the maximum penalties all double. The seven becomes 14, the three becomes six, the 20 becomes up to 40 years in prison.
John: Wow. Speaking of the first offence marijuana possession, what is the typical punishment for that, for first offence marijuana possession?
Ted: In almost all district courts, certainly all the ones that I've encountered in the last couple of years, the practice has become uniform, that a first offence possession of marijuana is prosecuted as a Class B Misdemeanor.
It's good news in that, this is a low‑level misdemeanor and so there is no possibility of going to jail. The maximum punishment for a misdemeanor is a $1,200 fine plus some collateral consequences that I'm going to talk about in a few minutes.
If you're charged in the Class A Misdemeanor, then the court can sentence you jail for up to a year. I said that the good news is a Class B Misdemeanor is less serious.
The bad news is, it's still a crime, and because it's a non‑jailable crime a person who is indigent, is poor or simply does not have financial resources, cannot get a public defender. That becomes really unfortunate when we start to look at the collateral consequences.
Let's talk about the Class B Misdemeanor. For many people who were charged with this offense, once they learn that they can't go to jail and the maximum punishment is $1,200, some people think that maybe I shouldn't hire a lawyer.
What they need to be aware about are the so‑called collateral consequences. These are consequences that the court doesn't necessarily tell you about, but that happen after you're found guilty of a misdemeanor.
The biggest one for college students is that, college students convicted of a drug crime, while they're receiving student loans, the federal FAFSA loans, lose loan eligibility for a year. That's for any possessory drug offense, including first offense possession of marijuana.
And that's only if the person gets the conviction, while they're receiving loans. So if it's a high school senior and they haven't started to go to college yet, that particular consequence does not apply.
And there is a theoretical way out of it, going into a drug treatment program that has random testing, but that would be pretty onerous and costly. And I’m not even aware of, for example in New Hampshire, what programs will do that. All I can tell you is, they would charge you a lot of money.
Another collateral consequence is long‑term reputational harm. A misdemeanor stays on your record, first of all forever, unless you petition for a so‑called annulment, which is the destruction of the records in the case.
But annulment is not available on a misdemeanor for several years, at least three years and for many convictions, depending on how the sentence is written, may be four or five years. So when I represent college students we look at that time period. They're not going to be eligible for annulment before they are at that point where they're graduating and looking at the job market.
While a lot of people today think that marijuana is no big deal and two states in the District of Columbia have even legalized marijuana, there are still a lot of employers out there who are old‑fashioned or who have more conservative views and will disqualify a person because of that conviction, regardless of the merit that they may have on their resume.
So that's another collateral consequence for a condition, for even first offense simple marijuana possession, that people need to be aware of and frankly worried about. The good news John is that, in New Hampshire, there are some courts that have diversion programs.
I don't if that's something you wanted to talk about in this interview. But there are some ways out of a marijuana conviction even for a person who's absolutely guilty and even for a person where the state can easily prove their guilt.
John: Why don't you go ahead and talk a little bit about the diversion programs and what they are and if there's other alternatives to criminal prosecution for first‑time offenders?
Ted: These are strictly local programs. A diversion program is ‑‑ we’re going to be talking about small "d" diversion. There is no such thing as the New Hampshire Diversion program with a capital "D". These are local programs the courts use, where if a person graduates in the program they do not have a conviction. The case is dismissed.
In Merrimack County we have the FAST program. That's a program that costs several hundred dollars. It takes two to three months to complete -- classes, drug testing, etc.
A person any age can do the program and if they're found eligible, and complete the program, then their record is annulled. Their case is not just dismissed but their conviction with the record of arrest is completely wiped out and the court record is literally shredded and they give you a piece of paper -- when you get an annulment of any offense in New Hampshire, they give you a piece of paper in the court, which says, "Don't lose this." Because it’s the only record that -- we can't supply it to you ever again. We've destroyed the court file.
Some other counties have no diversion program at all. Others have their own local program, it's something that you have to look at each court, each county, and also each prosecutor.
There are some prosecutors here in Merrimack County that are not friendly to the FAST program. It's hard to get them to refer someone to the program. There are others that are extremely supportive of it.
It may be helpful to have a lawyer that is able to identify some problems in the case. If there's some problems that might make the case more difficult for the government to prove, maybe the prosecutor who is not that supportive of -- what I think is an excellent program by the way -- maybe the prosecutor who is not that supportive, suddenly decides that it might be a good idea after all, to refer someone to that program, rather than taking the case to trial and risking losing.
John: Ted, is it illegal to possess paraphernalia that may be used to smoke marijuana, for example, a glass pipe or a so‑called bong, or water pipe?
Ted: The first answer to that is that most people would assume it can't possibly be illegal, because it seems like every small town in New Hampshire has some store that sells that stuff in big glass display cases. And the answer is that it used be illegal, and they took the law off the books.
It used to be illegal to possess paraphernalia that was possessed for the purpose of consuming illegal drugs. They removed that law from the books. That's the good news. The bad news is that if you've ever used those things -- and I've seen the evidence, John -- if you've used one of these things, than you know that when you smoke marijuana, you leave a residue that's extremely difficult to clean from the pipe or whatever the smoking instrument is.
And if the state lab here, the state forensic laboratory in New Hampshire, can scrap the tiniest bit of substance or flakes of something off that pipe that test positive for THC, then the government can prosecute you for possession of marijuana. There's a case in New Hampshire, it's called State v Pike, I believe, that held that there is no minimum quantity for the criminalization of possession of marijuana. It doesn't have to be a so‑called usable amount. It could be an amount so tiny that it's microscopic.
And that nobody -- you could hold a lighter to it for two days and you're not going to get high -- but they can still prosecute you. It's a multifaceted answer. If the pipe is still in that glass display case in the store, it's legal.
But as soon as it's been used once, the government's probably going to be able to scrape something out of it, to prosecute a person for possession. They're being prosecuted not for possession of paraphernalia, they're being prosecuted for possession of marijuana, even though there's no marijuana to see.
John: Right, just in the smallest amount possible.
Ted: Exactly, because the crime is defined really as possession of a substance containing THC. It's not defined as “marijuana”. For that reason, in New Hampshire courts, no matter how obvious it is the stuff is marijuana, by its appearance, by its smell -- the government has to call an analyst from the forensic laboratory to testify that they actually ran tests using lab equipment and detected the presence of THC in the substance that was seized from the defendant.
Maybe the only exception to that would be where a person confesses that the substance is marijuana, but even then a lot of District Court Judges would dismiss the case saying, well, the person can say whatever they want. Maybe, they think they got affect from it, but they don't know it's THC. It's an organic compound that you need to test for.
John: What are the most successful defenses against a marijuana possession prosecution?
Ted: For a straightforward possession case, the government has to prove that you knew that the substance was marijuana and they have to prove that you knew it was in your possession. Now, possession can be actual or constructive.
The most obvious possession is, I've got it in my hand, I've got it in my pocket, I've got it in my backpack, and my backpack is on my back. A lot of cases are a little more subtle than that.
A lot of cases involve a car that's pulled over. There's marijuana in the glove compartment. There's marijuana in the center console, there's marijuana in the trunk. Maybe there's marijuana in the back seat, or maybe there's marijuana under the passenger seat.
The state has to prove beyond reasonable doubt that the person being charged -- and a lot of times that's the driver -- knew that the marijuana was there. So if we have cases where there are passengers -- you know, we see familiar fact patterns that result in successful defenses.
A person's pulled over, one of the cases I'm handling right now, a driver's pulled over and the police officers report indicates that he asked the driver to step out of the vehicle for a reason unrelated to drugs, and talked to the driver.
In the meantime, there's a passenger in the car. Then another officer's report indicates that that officer walked up to the passenger window and talked to the passenger, after the driver was out.
And that officer is very excited to report that he smells marijuana coming from the car, and he asked the passenger about it, and the passenger says that there is marijuana underneath my seat.
And he actually tries to reach for it, which that will make any cop freak out -- if anyone is listening to this podcast, please do not reach into containers or under seats when a police officer is right next to you, because it implicates very severe officer safety concerns. The cop ordered him to stop doing that, got him out of the car, and sure enough there's marijuana under the passenger seat. The defense is probably obvious to the listeners.
If the first cop didn't smell marijuana, and got the driver out, and the second cop smelled marijuana only when dealing only with the passenger, it sounds like it's the passengers marijuana, and that it was put away, and then when a police officer pulls over the car, gets the driver out, the passenger freaks out and dumps the marijuana essentially, dumps it underneath his seat.
There's a lot of cases like that where if you have passengers -- or here's another example -- the car is not registered to the driver, it's registered to someone else. It's a parent's car, it's a child's car, it's a teenage child's car, it's a car that's being borrowed, it's a rental car.
How are they going to prove that the driver knew that something illegal was in the glove compartment, or the center console? And unfortunately, there are cases where guilt is more obvious than that. But these cases are called, constructive possession defenses.
Constructive possession is where the government says that a person is in possession of something, because they're exercising control over it. I'm at work right now doing this podcast, but I have things that belong to me in my house. Let's say a desktop computer.
I know it's there, I know where it is, I do possess it, even though I'm miles away from there. Constructive possession is a custody and control over an object. Those cases are more difficult for the government to prove, and to raise a defense we need to be able to articulate theories of how the drug could have gotten there without the driver knowing it. Sometimes the person charged is a passenger -- it could be the driver's marijuana, it could be the registered vehicle owner’s marijuana.
That's by far the most common defense on the merits of the case. Not necessarily, not the most common defense overall, because the best defenses in court are cases based on constitutional rights. Defenses that claim that the stop was illegal, the police officer had no reasonable suspicion to justify getting the driver out of the car, or justify a continuing detention beyond the scope of a very routine traffic stop.
A search was done without a warrant. We love suppression defenses, because these defenses work for the guilty. A constructive possession that I talked about, might work for someone who is guilty.
But the very nature of a motion to suppress is, we're trying to suppress evidence of guilt, and turn a person who is guilty into a person whose case has become dismissed.
John: In addition to successful defenses, what are some of the cutting edge issues in marijuana law enforcement, prosecution, and defense in New Hampshire's Courts today?
Ted: Well, looking more broadly across the country, a big cutting edge issue is corruption and state forensic laboratories. We now have an infamous case out of our neighboring state, the Commonwealth of Massachusetts, where a corrupt lab analyst was fabricating lab test results.
It's literally resulted in the dismissal of thousands of cases and many, many people who are guilty of their crimes, walking out of prison. That's heightened awareness to the fact that in forensic laboratories, there are individuals out there who cut corners. Individuals who are corrupt, and who sacrifice the entire prosecution. We're looking more closely into forensic lab practices. That's a big cutting edge defense here and across the country.
Perhaps, with some awareness of that issue, the United States Supreme Court over the last 10 years has dramatically changed the law concerning the right to confrontation of the witnesses against the defendant.
The right to confrontation of course, cross‑examination, had been historically held to not cover people like lab analysts. Basically, the government could submit the paperwork from the laboratory, the certificate showing that the substance tested positive.
Now, under a series of landmark cases in the US Supreme Court, including one from the Commonwealth of Massachusetts that went up, Melendez-Diaz vs Massachusetts, now we have a situation where the right to confrontation absolutely requires the lab analyst who did the testing to testify under oath in the case and be subject to cross‑examination. New Hampshire is a big rural state, a lot of courts are very far away from the state forensic laboratory in Concord, not all courts have gotten up to speed with trying to do testimony by video -- some have. And so, just the fact that the government has to prove the substance is THC is sometimes the stumbling block that results in victory for the defense.
John: Ted, what are the issues that come up in the more serious felony cases?
Ted: Okay, so, in more serious felony cases, now we're talking about cases where -- they fall into two categories when it comes to marijuana. One is sales, distribution cases.
I'm handling a case right now where I have one co‑defendant amongst a large group charged in Federal Court with distributing very large amounts of marijuana that came across the border from Canada, in a conspiracy that’s been allegedly going on for many years.
And another category of cases that comes up with this that I'm thinking about, a case that I also handled in Federal Court several years back, are cases where a person is growing large numbers of marijuana plants in their home.
Those people are charged with either manufacturing marijuana, these home farmers, are charged with either manufacturing marijuana or possession of marijuana with intent to distribute. Either one of those is a felony under state law, or under federal law.
Looking at that second category of cases first, probably the most important issue that comes up in these cases is the lawfulness of searches and seizures that result in the government getting their hands on the marijuana.
For example, I had a case that is now concluded. A man who was prosecuted in Rockingham County for possessing, I think I’ll just say many dozens of marijuana plants, that were growing in his garage. What happened in that case is that a drug task force - which is an assortment of officers from different local police departments, the state police that are assembled together in a drug task force, and get a lots of grant money from the federal government, and in my opinion, run amuck -- this drug task force had found out that a distribution center in Massachusetts was selling grow equipment to lots of people and it seemed somewhat obvious that the grow equipment was well designed for growing marijuana indoors.
There are people out there John, who will spend thousands of dollars for equipment to grow tomatoes in their basement. But it's probably not as many people who will spend that money on equipment to grow marijuana in their basement, garage, or their attic.
When the government investigates these cases, they use several tactics. They used these tactics in the federal case that I mentioned before, and in the state case that I'm talking about right now. One tactic is they will do a little unannounced visit.
In this case, out of Rockingham County, a large number of officers show up at the person's house in the middle of the day. There is actually now an appellate court decision, we won the case on appeal, in the first round on appeal, it's back on appeal for a second round.
We won in the New Hampshire Supreme Court, so there's a public record that tells you that four police officers in two different cruisers show up all at the same time, knock on the door and find a very startled wife and tiny children home. A stay at home mom, kids, dad's at work. They start grilling her about their suspicions that husband has purchased grow equipment. He must be growing marijuana on their property. In the meantime, while two officers are having this discussion with her in her living room, two others are walking all around the property -- in particular, they're walking completely around his stand‑alone garage. Looking at things, sniffing at things, and they believe that they can smell very strong odors of marijuana coming out of the garage.
They can see a meter spinning, showing large amounts of power being used. Then, this is in dispute, we believe that when they get the guy to come home from work -- by the way, in the middle of the day, leave work and come home to deal with this unannounced police visit -- they confront him with all these discoveries. The spinning meter, and the smell of marijuana coming from the garage. Then he allows a search. This became a cutting edge issue in New Hampshire. Was this an illegal search when these officers walked around the garage.
They didn't break into the garage. The windows were boarded over, so they couldn't look in. they claimed that they didn't try to go in -- at any rate, the door was locked. It's a question of where can they go on his property?
And New Hampshire law was not very good, but the United States Supreme Court had a recent, very strong case for us called Florida vs Jardine's, that's J‑A‑R‑D‑I‑N‑E‑S if anyone wants to look these things up themselves on Google.
That case had held that police officers have to respect the same rights and privacy that we expect our neighbors and other visitors to the home to follow. People who visit us, they walk the driveway right up to our front door and knock on the door.
They don't snoop around the property, they don't walk around our property and check out the entire garage. They don't examine the outside of a shed and things like that. In fact, there's some people in New Hampshire who would greet you with a shotgun if you try to do those things.
The New Hampshire Supreme Court recognized that the Jardines decision controlled, in their case -- which you can look up, it's state vs Socci, S‑O‑C‑C‑I, it's also discussed a lot on our law firm's website -- they held that the officers who walked around the garage, while the other officers were talking to mom in their house, violated this family's constitutional rights. They remanded it for further hearings about what the impact was of that violation. That's where we're at right now.
That's one cutting edge issue is, police, they acknowledged John, that they didn't have enough evidence to get a warrant to search this man's house or garage. They wanted to see if they could get -- they used these tactics to get a family to agree to a search.
They used aggressive tactics. Now we're starting to see courts, the United States Supreme Court, New Hampshire Supreme Court in this case, we're starting to see courts push back and say that this is a violation of the right to privacy, violation of the fourth amendment.
In New Hampshire it's a violation of part one, article 19 of the state constitution, to do these types of searches and seizures. Then the other set of cutting edge issues has to do with conspiracy cases.
We have a lot of different co‑defendants. Some of them try to turn states evidence and testify against each other. If that doesn't happen, the government tries to use hearsay statements from co‑conspirators.
There's a lot of complicated rules of evidence that come into play to try to prove a conspiracy case. Unfortunately, the federal government often seems to have seemingly limitless resources, use wiretaps, and things like that. We have to litigate the admissibility of evidence that's obtained that way.
Another thing that they'll do with their substantial resources, they will try to use technology to see if a house is projecting more heat than you would expect a house to project.
If it is, that could be a sign of all the grow lamps and all of the electricity being used, which powers the grow lamps, fans, and other equipment that's necessary to grow a number of plants indoors.
That's become a cutting edge issue. United States Supreme Court held a very important opinion and authored by its more conservative justices, as well as several more liberal justices. Using sophisticated infrared scanning technology to scan the outside of the house and try to see how much heat it was generating, that was a violation of the fourth amendment.
These are things that obviously our founding fathers of our country who wrote the Bill of Rights in 1789, never could've thought of. It's a good example that for our constitution to protect us -- we talked about cutting edge issues. Here, we're talking about the constitution keeping up with modern technology. Because if it doesn't then the government will just get ahead of the kind of archaic concepts that the founders of the Constitution had in mind, and will find a way to get around our constitutional rights. Those are some of the more interesting cutting edge issues in those cases, and of course the issues about who can testify from state forensic laboratories.
The most recent important case is Bullcoming vs. New Mexico, that's B‑U‑L‑L‑C‑O‑M‑I‑N‑G. That's in 2011. That's a case that's helped result in a real transformation of the law in terms of -- the person who tested the substances that are being used to prosecute someone. The person who did the testing has to come to court. Not a supervisor, not a special testifying analyst, If the person who did the work.
John: That's excellent information. Ted Lothstein, thanks very much for speaking with me today.
Ted: It's great talking to you, John.
John: For more information, you can visit the Lothstein Guerriero website at www.lothsteinlaw.com. That's L‑O‑T‑H‑S‑T‑E‑I‑N law.com, or call Ted 603-513-1919.
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