Monday, December 26, 2011

Possession of Marijuana - Boise Criminal Lawyers (208) 472-2382

Are There Exemptions to the Crime of Possession of Marijuana In Idaho?

In 2007 a Boise man, Cary White, was arrested for possession of marijuana. With the aid of a public defender as his criminal attorney, he plead not guilty, took his case to trial, lost and subsequently appealed his case.  He recently lost his appeal but vows to take his case to the Idaho Supreme Court.

Upon what grounds did he contest the illegality his marijuana possession?  It wasn't upon the recently popularized medical marijuana grounds, rather it was upon the grounds of free exercise of religion. The First Amendment of the United States Constitution, the Idaho Constitution and the Idaho Free Exercise of Religion Act (FERPA), Idaho Code section 72-401, and the Religious Freedom Restoration Act (the federal counterpart to the Idaho FERPA) protect individual rights to practice religion without unreasonable or justifiable interference.

How would a Boise Criminal Lawyer go about showing that practice of religion was unreasonable or unjustifiably impeded?  The Idaho Court has held that it is the burden of the defendant to show that Idaho's controlled substance statute substantially burdens his or her exercise of religion.  The defendant must show, firstly, that it is an actual "exercise of religion" that is being burdened.  Secondly, the criminal defendant must show the burden is a "substantial burden".

In the case of Cary White, he did not claim to be a member of any recognized religious community.  There are recognized religious organizations whose use of marijuana or other ordinarily illicit drugs are recognized as "sacramental" use and therefore protected.  For example, the use of marijuana or peyote as a sacramental drug by members of the Rastafarian Movement, members of the Church of Cognitive Therapy or members of Native American Medicine is considered a free exercise of religion.  White's criminal defense attorney didn't claim he was a member of any organized religion, rather he supported exercise of his freedoms including choosing not to belong to a religious organization.  In effect, White's criminal lawyer failed to meet the first requirement of the Restoration of Religious Freedom Act and in failing to do so, he failed to meet his prima facia case.  As a result, his argument was not considered beyond that.

Could White have made an argument that would exempt his marijuana from being illegal?  Yes, but for his argument to have been fully considered he would have actually been a member or a recognized religious community which uses marijuana as a religious sacrament.  In addition, he would have to show that criminalizing his use of that marijuana would substantially burden his practice of religion.  Without that, there is no violation of his civil rights, at least according to the law as it now stands.

Framing the issue for an Idaho Court is critical to the success of your case.  This is what it means to be an aggressive Boise Criminal Lawyer.  Cary White's criminal defense attorney failed to frame the issue in a way that would benefit White and afford him the protections he needed to be found not guilty of possession of marijuana.  If you have been arrested for possession of marijuana and need an aggressive Boise Criminal Attorney who can defend your rights, give us a call and see what we can do for you. Call today, (208) 472-2383, you will be glad you did.

2 comments:

  1. How would a Boise Criminal Lawyer go about showing that practice of religion was unreasonable or unjustifiably impeded? The Idaho Court has held that it is the burden of the defendant to show that Idaho's controlled substance statute substantially burdens his or her exercise of religion. San Antonio

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  2. Whether it's marijuana, heroin, or any other regulated substance, possessing these Drug possession crimes are very common, and make up a large portion of the knew the drugs were there, or that they were near the driver or in plain view. . free criminal background check florida

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