Texas NORML Blog

Author: David Sloane, Attorney & NORML Legal Committee Member
http://www.sloanelaw.com/

DECATUR, TX. — A Lubbock man received a Deferred Adjudication term of one day today in Wise County, Texas. The Bridgeport Police Department arrested Adam Federspiel, 34, on October 23, 2011 during a routine traffic stop, and booked him into the Wise County jail for possessing less than 2 ounces of marijuana. He was released the following day after posting a $2,500 bond. Federspiel’s parents reside in Bridgeport, and he was in the area visiting them at the time of his arrest.

Possession of marijuana under two ounces in Texas is a Class B Misdemeanor, punishable by up to six months in jail, and a fine of up to $2,000.00. Texas law also requires a six month driver’s license suspension for anyone convicted of a drug offense.

Federspiel was diagnosed with multiple sclerosis in 2009, and smokes cannabis daily to relieve the spasticity and tremors associated with his disease. According to a 2007 UK study, 189 multiple sclerosis patients in cannabis-based drug trials reported that cannabis helped relieve spasticity. The National Multiple Sclerosis Society also recommends further studies of the benefit of cannabis for multiple sclerosis patients.

17 states and the District of Columbia recognize the medical benefits of cannabis, and have passed laws allowing the medical use of marijuana. However, Texas has not. Following his release from jail, Federspiel was referred to Fort Worth attorney David Sloane by the national headquarters of the National Organization for the Reform of Marijuana Laws. Sloane is a member of the NORML National Legislative Committee and serves on the local DFW NORML Board of Directors. After hearing about Federspiel’s plight, Sloane agreed to defend him at a greatly reduced fee.

Speaking with permission of his client, Sloane told DFW NORML that cases involving medical cannabis patients present a unique set of legal, ethical, and practical challenges for defense attorneys. According to Sloane, “as an attorney, you can never encourage, aid, or assist a client in violating the law. When you have someone with an obvious, debilitating and painful disease right in front of you that tells you they find relief for their symptoms with the use of cannabis, what do you do? Tell them they cannot consume a pure and natural substance that makes them feel better because their government doesn’t like it?”

“There are also long term practical considerations in fashioning a remedy for these patients,” Sloane said, “because they certainly do not want to go to jail, and drug testing makes them a very poor candidate for any form of probation if they intend to continue to seek the relief they have found with cannabis. You are setting your client up for failure if you do that. So really, the only thing you can do when you have a legitimate patient is hope that you can educate and find compassion with the prosecutors and judges. If not, you need to be prepared to throw that chin down and come-out-swinging in front of a jury with the necessity defense.”

Texas penal law provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs… the harm sought to be prevented by the law proscribing the conduct.”

In this case, the prosecution was placed on notice that Federspiel intended to raise a necessity defense if it was required for a successful case. After Federspiel provided requested proof of his disease, the prosecution agreed to a negotiated settlement. Federspiel was allowed to pay a $100 and to defer his finding of guilt for a period of one day pro forma, meaning it was not necessary for him to ever report to probation or have any other terms or conditions of probation. The judgment in this case states: “The court finds that, in this cause, it is in the best interest of society and Defendant to defer proceedings without entering an adjudication of guilt and to place the defendant on community supervision.”

“If Adam stays out of trouble until midnight, the case against him will be dismissed,” Sloane said. “With no conviction, his driver’s license is not in jeopardy. And once he has successfully completed his deferred adjudication, tomorrow, he may lawfully ask the courts to seal the record of his arrest.” Sloane said he considers this a high water-mark for cannabis patients in Texas.

“While this is not binding case law, it does show that at least some prosecutors are educating themselves on the topic of medical cannabis and appreciating the stark realities that may be if these cases reach a jury like the one in Amarillo a few years back.,” Sloane said. He praised the prosecutors for working with him to fashion a remedy that both recognized and addressed the prohibitive statute, as well as the defense of necessity. “I hope other prosecutors and judges take heed and recognize what the Texas Legislature has thus far failed to do.”