Tag: oklahoma

Can I use medical marijuana while on probation in Oklahoma?

Posted by Frank Urbanic on

I believe it’s now legal for an Oklahoma medical marijuana license holder to consume marijuana while on probation. Some judges and district attorneys will disagree. The “Unity Bill” (Oklahoma Medical Marijuana and Patient Protection Act), which went into effect on August 30, 2019 protects medical marijuana patients from punishment for their use of marijuana. It states the following:

“A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.”

63 O.S. § 427.8

It seems pretty clear to me that an Oklahoma medical marijuana license holder can’t be subject to “arrest, prosecution or penalty in any manner” so long as they are using marijuana in accordance with Oklahoma’s medical marijuana laws. Revoking or accelerating someone’s probation certainly constitutes a penalty. Therefore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for testing positive for marijuana. Furthermore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for possessing marijuana in an amount allowed by our medical marijuana law.

Why won’t judges and district attorneys leave medical marijuana patients alone?

medical marijuana use on probation in oklahomaThe problem is getting a judge and/or prosecutor to agree to that. District attorneys and judges generally still hate marijuana. Many were quite upset that Oklahoma’s medical marijuana law passed. Since the law went into effect, some DAs and judges have done everything they can to “stick it” to patients lawfully using medical marijuana.

The primary reasons judges and district attorneys use for revoking probation for a licensee testing positive for marijuana is that the licensee was “violating federal law” by possessing marijuana. A condition of probation is that the probationer will not violate any municipal, state, or federal laws. Even without the Unity Bill, this reasoning is a stretch. It’s intended to intimidate and unnecessarily punish marijuana patients. With the Unity Bill in effect, it’s clear that a judge may not punish a medical marijuana probationer for testing positive for marijuana because the state law overrides the probation condition. There’s no state law that says that probationers may not violate any municipal, state, or federal law. A judge can’t simply override a state law because they don’t like marijuana.

Examples of how medical marijuana licensee rights are violated

I’ve seen and heard about judges doing some questionable things with regards to probationers vis a vis medical marijuana. Some judges are requiring that a doctor appear in court to testify about the medical conditions the probationer has. The law doesn’t say the licensee “shall not be subject to arrest, prosecution or penalty in any manner … only when their doctor proves the licensee’s medical condition to the satisfaction of the judge.” Plus, information regarding a patient’s condition(s) isn’t even supposed to be released outside the OMMA. So, how does testimony on the record protect a patient’s privacy? There’s at least one judge telling people on probation that even getting a medical marijuana license is violating some law. I’m not aware of any federal law that prohibits people from getting a medical marijuana license–regardless of whether they actually use marijuana. If you’re aware of one, please let me know!

How will we know for sure?

So, how are we going to know for sure whether a medical marijuana license holder on probation can be punished for his or her lawful use of marijuana? I doubt all the district attorneys and judges will suddenly start turning a blind eye to positive marijuana tests by license holders. What it will likely take is for someone to challenge the revocation or acceleration of probation. A medical marijuana licensee must have their probation actually revoked or accelerated by a judge and then appeal that decision to the Court of Criminal Appeals. Then, the licensee would have to actually win at the Court of Criminal Appeals. In the meantime, the licensee would likely be in jail or prison. And appealing anything costs money. Not many people are willing to go through that pain to blaze the trail for everyone else.

The good news is that I haven’t seen a license holders’ probation get accelerated/revoked for testing positive for marijuana. That’s not to say it hasn’t happened–I just haven’t personally seen it. I’ve heard stories about probation officers not caring whether a licensee tests positive for marijuana. That’s a good sign because if the probation officer never reports that as a violation, then the district attorney and judge never get an opportunity to revoke/accelerate the probation. There are also some district attorneys who were not filing motions to revoke/accelerate before the Unity Bill went into effect. No doubt, there will likely be at least a few more now. And out of the hundreds of judges in Oklahoma, there are probably a few who will actually follow the law and leave medical marijuana patients alone.

Current as of October 27, 2019. Note: laws are subject to change at any time! Visit the sources for the most up to date law.

Sources: HB 2612, 63 O.S. 420, & 63 O.S. § 427.8

Charged with possession of marijuana in Oklahoma? Call Oklahoma marijuana lawyer Frank Urbanic in OKC at 405-633-3420.

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Age of Consent & Statutory Rape Law in Oklahoma

Posted by Frank Urbanic on

A frequently asked question online is something like, “I’m X years old. Can I have sex with someone who is Y years old?”. The answer to this question requires a look at of Oklahoma’s age of consent, incest, and rape laws.

Age of Consent in Oklahoma

The age of consent in Oklahoma is 16. Therefore, it is generally legal for a 16-year-old to have sex with anyone older than them. Sex between people who are 15-17 years old is generally lawful. A variety of exceptions make that sex illegal.

Statutory Rape in Oklahoma

statutory rape charges oklahoma21 O.S. § 1111 states that rape occurs when the victim is 15 years old or younger. However, 21 O.S. § 1112 states that a person cannot be convicted of rape when the consensual sex occurred with someone over 14 unless the person was 18 years or older. 21 O.S. § 1111 also states that the following sex is also illegal:

  • Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim. Translation: No sex by government employees with someone who is under the custody of a governmental agency if that agency the employee works for exercises authority over the victim.
  • Where the victim is at least 16 years old and is less than 20 years old and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is 18 years old or older and is an employee of the same school system. Translation: A school employee who is 18 or older can’t have sex with a student in that same school system who is younger than 20.
  • Where the victim is 19 years old or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant. Translation: Foster parents can’t have sex with their foster children if the foster child is 19 or younger.
  • Where the victim is at least 16 years old but less than 18 years old and the perpetrator of the crime is a person responsible for the child’s health, safety or welfare. “Person responsible for a child’s health, safety or welfare” includes but is not limited to:
    • a parent,
    • a legal guardian,
    • custodian,
    • a foster parent,
    • a person 18 years old or older with whom the child’s parent cohabitates,
    • any other adult residing in the home of the child,
    • an agent or employee of a public or private residential home, institution, facility or day treatment program, or
    • an owner, operator or employee of a child care facility.

Incest in Oklahoma

Per 21 O.S. § 885, incest is illegal. 43 O.S. § 2 outlines the parameters of whom it would be illegal to have sex with. Sex between people of the following relation is illegal:

  • ancestors and descendants of any degree,
  • a stepfather with a stepdaughter,
  • stepmother with stepson,
  • uncles and nieces, except in cases where such relationship is only by marriage,
  • aunts and nephews, except in cases where such relationship is only by marriage,
  • brothers and sisters of the half as well as the whole blood, and
  • first cousins.

Have you been charged with rape or incest in Oklahoma? Call Oklahoma sex crimes attorney Frank Urbanic in OKC for a FREE consultation at 405-633-3420.

Don’t panic! Call Urbanic.® (405) 633-3420

Sources: 21 O.S. § 1111, 21 O.S. § 1112, 21 O.S. § 885, & 43 O.S. § 2

Read about updates to Oklahoma’s rape law in 2018

Current as of June 20, 2019.

Can I Have A Gun If I Have A Medical Marijuana License In Oklahoma?

Posted by Frank Urbanic on

oklahoma medical marijuana

On June 26, 2018, voters in Oklahoma overwhelmingly approved medical marijuana by approving SQ 788. The legality of having a gun while possessing a medical marijuana license became a hot topic immediately after the vote. According to federal law, it’s illegal to possess a gun if you are a medical marijuana license holder regardless of state law.

The federal law that controls this issue is 18 U.S.C. § 922. Subsection (g) states that it’s unlawful for “any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Succinctly, anyone who illegally uses any drug defined as a controlled substance by the federal government cannot possess a gun. Marijuana is a Schedule I substance on the federal schedule, so the federal government considers every user of marijuana an illegal use of a controlled substance. Possessing a state license for medical marijuana doesn’t make somebody a legal marijuana user in the eyes of the federal government. Note that you don’t have to be an addict for this statute to apply—merely a user.

Possessing a gun or ammunition as a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years. Furthermore, it’s illegal “for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Succinctly, it’s illegal to sell or transfer a gun to someone you reasonably believe is an illegal drug user. What could give someone the reasonable belief that you’re an illegal drug user? A medical marijuana license! The Bureau of Alcohol, Tobacco, Firearms and Explosives stated in a 2011 letter that if a transferor knows that a potential transferee of a firearm possesses a card authorizing the possession and use of marijuana under state law, then the transferor has “reasonable cause to believe” that the person trying to get the firearm is an unlawful user of a controlled substance. The ATF further stated that “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”

Knowingly transferring a firearm or ammunition to a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years.

If you buy a gun, you have to fill out ATF Form 4473, Firearms Transaction Record. Question 11e asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” And right after that question, it has in bold print “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” A gun seller may not legally sell a gun to anyone who checks “yes” to that question.

The bottom line is that you lose your gun rights if you use marijuana—whether it’s illegally or under a state-sanctioned medical marijuana program. Nobody may legally sell a gun or ammunition to someone they reasonably believe uses marijuana. Therefore, individuals seeking a medical marijuana license will have to weigh the risks and benefits of that course of action.

As more states legalize marijuana for both recreational and medicinal use, something clearly needs to give here. Oklahoma’s approval of medical marijuana has been called a tipping point in the legalization of marijuana, and more states will follow. For now, however, it’s a federal crime to own a gun and use marijuana, and it’s a federal crime to transfer a gun to a marijuana user. The federal government must remove the threat of violating a federal law from otherwise law-abiding citizens and remove marijuana from the list of controlled substances.

SOURCES: 18 U.S.C. § 922, ATF Form 4473, 18 U.S.C. § 924, & ATF 2011 Letter

If you’ve been arrested for marijuana,

Don’t panic!

Call Urbanic.®

405-633-3420

This is the (current) law that prosecutors will use to overturn the will of Oklahoma voters

Posted by Frank Urbanic on

In November 2016, voters in Oklahoma resoundingly said they’re fed up with the way drug crimes are prosecuted. State Question 780 modified the drug possession statute. It made every simple possession of drugs a misdemeanor. It won’t matter where you had the drugs, what kind of drug it was, or how many times you’ve been arrested for drug possession–it will always be a misdemeanor. The law goes into effect on July 1, 2017, and 58% of voters approved it

Now, our legislature is trying to undo SQ 780. The most likely legislative change will be to make it a felony to possess drugs within a certain distance of a handful of areas. This will turn about half of Oklahoma into a felony drug possession area. Oh, and you will have to serve 90% of your prison sentence.

HOWEVER–our out-of-touch legislators won’t have to wait until their meddling goes into effect. An obscure Oklahoma law CURRENTLY makes it a felony to possess a controlled dangerous substance without “affixing the appropriate stamp.” This is not a joke. So, come July, when prosecutors can’t use the usual drug possession statute anymore to charge people with felonies, they will be using 68 OS § 450.8 to convict people of not possessing a tax stamp. Of course, nobody will have a tax stamp, so any simple possession of drugs can also be a violation of this statute.

This is beyond outrageous. I love how people are out there now telling the voters that they were too stupid to know what they were voting for. I know exactly what I voted for, as did many people I talked with. The ink isn’t even dry on this statute, and everyone is trying to find a way to nullify it. Our prisons are overcrowded. Lives are ruined early on due to felony drug charges. The people who voted for SQ 780 see the effects of Oklahoma’s harsh drug laws first-hand. The people who are trying to change this law supposedly represent the community. Unfortunately, they don’t see things from the perspective of people who experience how broken the system is. Let’s see how this new law plays out before attempting to change it.

If you’ve been arrested for drug possession, then call The Urbanic Law Firm!

405-633-3420

Source:

68 OS § 450.8 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=92035

How to get pulled over in Oklahoma–OR–What NOT to do if you’re driving with drugs in your car

Posted by Frank Urbanic on

The following is a list of ridiculous reasons why law enforcement can pull you over in Oklahoma. Doing any of these will turn your car into a probable cause mobile.

  1. Driving with your fog lamps on when it’s not foggy. 47 O.S. § 12-217 states that fog lamps can only be used when visibility is 1/2 mile or less. Better play it safe and just don’t turn them on at all within our borders.
  2. Not signaling a lane change early enough. 47 O.S. § 11-309 states that a driver must signal a lane change at least 100 ft prior to changing lanes. How long is that when you’re driving? Who knows. Just put on that blinker a long time before you turn the wheel.
  3. Not signaling a right or left turn early enough. 47 O.S. § 11-604 states that a driver must signal a right or left turn at least 100 ft prior to turning. Again, signal way before you think you need to turn.
  4. Following too closely. 47 O.S. § 11-310 states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” What the hell does that mean?? It means that a cop can pull you over for any distance he or she deems is “too close.” So stay as far behind every other vehicle as possible.
  5. License plate insufficiently lit. 47 O.S. § 12-204.1 states that a license plate must be lit to where it is legible at 50 ft. You also can’t have more than two lights illuminating the plate. And the lights have to be white.
  6. Third brake light not working. 47 O.S. § 12-206 states that the third (middle) brake light must be operational if your vehicle is equipped with one.
  7. Driving in the left lane without passing somebody. 47 OS §11-309 states that you can’t impede the normal flow of traffic by driving in the left lane. 47 OS §11-301 states that you need to drive in the right hand lane if you’re driving at less than the normal speed of traffic. Translation: Don’t clog up the left lane, and move right if you’re slow. Actually, this is not a ridiculous law. You should be arrested if you’re driving slow in the fast lane!
  8. Driving with a cracked windshield. 47 O.S. § 12-404 says what types of windshield cracks are unacceptable. It’s illegal to have any outright breakage in the windshield or in the window on either side of the driver; have any star break or shot damage, 3″ or more in diameter, located in the critical area; or have two or more stress or hairline cracks, 12″ or more in combined length, located in the critical area. The critical area is the area cleaned by the normal sweep of the windshield wiper blade on the driver’s side. This law also says that it’s illegal to drive a motor vehicle with any sign, poster, other nontransparent material, or debris (including but not limited to snow, ice, or frost) on the front windshield or the side wings, or side or rear windows. You also can’t suspend any sign, poster, object, or other material from the interior of the vehicle that materially obstructs, obscures, or impairs the driver’s clear view of the highway ahead or to either side or of any intersecting highway.

I’ve seen people pulled over for many of the above reasons. Oklahoma cops ARE looking for those things, and they WILL pull you over!

And, of course, there are the more obvious reasons to pull you over:

  • Speeding
  • Expired tag
  • Not wearing a seat belt
  • Broken taillight/headlight
  • Not obeying street signs (47 O.S. § 11-201)
  • Marijuana smoke billowing out of your vehicle

So, if you’re going to be driving on Oklahoma roads and don’t want to get stopped, just follow a few simple instructions. Inspect your car prior to leaving. Make sure all lights work. While you’re doing that, check to make sure your tag isn’t expired. Signal way before you turn or change lanes. Don’t go one mile over the speed limit. Wear a seat belt. Stay far behind other vehicles. And NEVER, EVER, EVER use your fog lamps.

Have I left out any ridiculous reasons people get pulled over for in Oklahoma? Let me know!

Have you been pulled over for something ridiculous? Or something not ridiculous?

Call The Urbanic Law Firm!

405-633-3420

Sources: