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Old December 14, 2012, 07:59 AM   #1
HiBC
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States legalizing pot vs a SD shoot scenario

Maybe this should be in Legal and Civil Rights ,but I put it here because this is where topics like handloads vs SD are discussed,with the court as context.

1)I really do not care what you do in your personal life

2)This is NOT a thread to discuss the topic of pot,what "should be",whats fair,etc.

3) The intent of this post:Awareness so people can make good choices .Colorado and Washington State have voted pot legal at the state level.The Fed controlled substance status(illegal) has not changed.

We have discussed,in other threads,Med Pot card vs "I am not an unlawful user of or addicted to marijuana or any other controlled substance" on the form 4473,and also the State legalization and the form 4473,.

These have been well covered in "Law and Civil Rights"

Here is the new angle to consider.

Suppose a person smoked pot 3 days ago and had to take a random drug test,or applied for a job that required a drug test.They would come up positive and fail.

Now suppose a person had a workplace accident or a traffic accident and had to take a drug test,and showed positive.They were not stoned,had not smoked pot that day,but pot evidence lingers,they show positive.Sometimes what actually happened in the incident matters less than testing positive.Your fault or not,you get fired.

So,now consider this,you are the old guy in the You-Tube video at the internet cafe when the gunmen came in .You are the guy who pulls his .380 and punches some holes in them.

You are not stoned,but two days ago you smoked pot.You are drug tested.

A self defense homicide is a homicide.The DA does not have to prove you killed the guy.That is a given.The burden of proof is on the shooter,to prove self defense.A positive drug test will not help you.

So,pot legal state or not,be careful how you make your choices.
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Old December 14, 2012, 09:05 AM   #2
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I haven't dealt with this subject in regards to shooting, BUT, I have in traffic accidents.

I did a bit of Fatality Traffic Investigation in my LE Career. I do know for a fact that if you're involved as a driver and some one is killed they will get a warrant and do a drug/alcohol test.

Weather or not you are responsible for the accident, if you have drugs in your system (not necessarily high but lets say pot in your system from several days ago) you can bet your whatever, that its gonna hurt you, maybe not in a criminal case but it will in a civil case.

I don't care (within reason) what another person does, but it can come back to bite you.

I personally don't worry about it, I made it 65 years without it, I figure I can make a few more.
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Old December 14, 2012, 09:07 AM   #3
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I would think that for legal purposes, marijuana would be treated the same as alcohol.

IIRC, with a full lab test, the levels or concentration of THC in your system can be determined and give a rough outline of the last time that or another drug was used. Dip tests are simple pass/fail and they are the norm because they are much cheaper.

That would be blood, not urine.

Quote:
Only blood-sample measurements are likely to correlate with a person's degree of exposure (3); attempts to correlate urine concentration with impairment or time of dose are complicated by variations in individual metabolism, metabolite accumulation in the chronic user, and urine volume changes due to diet, exercise, and age. Therefore, a positive result by the urine cannabinoid test indicates only the likelihood of prior use.
Source
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Old December 14, 2012, 09:35 AM   #4
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If you shoot someone, regardless of the situation, you will have to deal with the legal consequences.

If you test positive for alcohol or pot, or meth or whatever, when you shoot someone, you'll be making some young prosecutor happy.

Always remember - "self-defense" is a defense to murder, manslaughter, or even assault with a deadly weapon. As such, the burden to prove self-defense falls squarely on you as the defendant. The prosecutor doesn't have to prove a single thing when you plead self-defense - in doing so, you've already made the prosecutor's case in chief. All the Prosecutor has to do is sit back and throw stones at your self defense claim. Pot, alcohol, meth, etc. - think of them as big, heavy, rocks moving at 600 fps right at you.
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Old December 14, 2012, 09:44 AM   #5
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Quote:
The DA does not have to prove you killed the guy.That is a given.The burden of proof is on the shooter,to prove self defense.
I don't know about other states, but in Texas the burden is on the DA.

Texas Penal Code Section 203(d) says, "If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted."

And self defense is a defense - as opposed to an affirmative defense which works differently.

As far as the positive results of a drug test go (though I don't know why you would be taking one), it's an indication that you MIGHT have been on drugs. I imagine that the amount of whatever they are testing for that is in your system would be an indication of how buzzed you were at the time of the test. Which might not be the time of the incident. So it doesn't seem like really strong evidence.

At least in a DUI, the test is done right away.
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Old December 14, 2012, 09:54 AM   #6
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Quote:
At least in a DUI, the test is done right away.
That's not exactly done that way for the benefit of the accused. It's to give you as little time as possible to metabolize below the limit.
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Old December 14, 2012, 11:52 AM   #7
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Since the standards for DUIW haven't really been worked out, it would be really risky to smoke pot if there's even the slightest chance that you might be involved in a defensive shooting.

Bad idea to be an early adopter.

Not an issue for me. I've never used it and see no reason to start now.
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Old December 14, 2012, 12:14 PM   #8
Frank Ettin
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Marijuana and a self defense shooting raises a number of issues.
  1. As others have pointed out, a positive test for any substance that effects judgment or perception could be used to challenge your self defense claim. Even if, under applicable state law, a prosecutor must disprove your self defense claim after you've put on evidence constituting a prima facie, case of self defense, the less convincing you are the easier it will be for the prosecutor to meet his burden. So evidence of possible impairment won't help you.

    Marijuana might be less problematic in this regard than alcohol. Evidence of marijuana use takes much longer than alcohol to be fully metabolized and no longer detectable.

  2. But also, a user of marijuana is, under federal law, an unlawful user of a controlled substance and therefore prohibited from having possession of a gun (18 USC 922(g)(3)).

  3. So while someone who used marijuana several days before successfully defending himself with a gun might win on his self defense claim, he could still be facing a federal felony charge of being a prohibited person in possession of a gun.
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Old December 14, 2012, 12:20 PM   #9
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Quote:
A self defense homicide is a homicide.The DA does not have to prove you killed the guy.That is a given.The burden of proof is on the shooter,to prove self defense.A positive drug test will not help you.
Innocent until proven guilty. The prosecutor must prove everything beyond reasonable doubt. You do not have to PROVE anything, the state must prove everything. Of course the news media will try you in the court of public opinion and spin everything so as to put pressure on the prosecutor.
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Old December 14, 2012, 12:26 PM   #10
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Quote:
Originally Posted by Nanuk
Innocent until proven guilty. The prosecutor must prove everything beyond reasonable doubt. You do not have to PROVE anything, the state must prove everything. Of course the news media will try you in the court of public opinion and spin everything so as to put pressure on the prosecutor.
Nope. It doesn't work that way when you claim self defense. I explained it here:
Quote:
...I. How Pleading Self Defense Works

In general, if you're accused of a crime it's up to the State to prove your guilty beyond a reasonable doubt. But things work a little differently if you are pleading self defense.

Basically --

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all elements necessary under the applicable law to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the less convincing your story, and your evidence, is, the easier it will be for the prosecutor to meet his rebuttal burden....
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Old December 14, 2012, 01:03 PM   #11
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One of the reasons I opposed the law in Washington was that the legal limit for impairment was very small.
If the same standard were applied to other situations a person could have not smoked for days and still be legally under the influence.

Another factor of the Washington law is that there is no defense. Once a driver is found to be over the limit they are automatically considered guilty.

This sure wouldn't be good news for anyone involved in a shooting.
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Old December 14, 2012, 03:40 PM   #12
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Frank,

I stand corrected.
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Old December 14, 2012, 03:55 PM   #13
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I guess the bottom line is if you want to be carrying a gun, you don't need to be using things that impair your judgment - especially if traces remain well after you are no longer impaired.

I rarely drink. I don't use mj or any other recreational drugs at all.

I'm just high on life!
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Old December 14, 2012, 04:07 PM   #14
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Since when are lawful CCW holders, who are involved in SD shootings, given drug tests? I can understand that if the investigating officer detected an odor of marijuana, or alcohol, or the person seemed impaired giving one. I just didn't know it was SOP.
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Old December 14, 2012, 04:32 PM   #15
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You can't really be naive enough to believe that a CCW gives you the power to walk up to someone, blow them away, claim self-defense, and there's not going to be any kind of investigation?
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Old December 14, 2012, 05:18 PM   #16
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Is this even a problem? Can any of you cite a case where a blood test was required of someone after a self-defense shooting?
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Old December 14, 2012, 06:12 PM   #17
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There was a self-defense shooting in a bar here in Salt Lake City several years ago in which the shooter, an off-duty detective, had been drinking, as was the person who was shot. I have a vague recollection, perhaps from testimony in a subsequent civil suit, that a blood-alcohol test was administered to the detective. I, however, am not positive that this was the case. The detective was not criminally prosecuted.
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Old December 15, 2012, 10:37 AM   #18
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Certain medications can be detected in your system several days after consumption, but the actual medicinally active chemical compound has broken down and no longer is doing anything in the body.

Does the marijuana drug test indicate that the person merely consumed something several days before, i.e. there are metabolites( inactive beakdown products) in the system vs indicating that the drug is still active in the system? There is a world of difference.
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Old December 15, 2012, 11:32 AM   #19
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Quote:
Originally Posted by Heavy Metal 1
...Does the marijuana drug test indicate that the person merely consumed something several days before, i.e. there are metabolites( inactive beakdown products) in the system vs indicating that the drug is still active in the system?...
That's my understanding, and on that basis would tend to think that marijuana use a few days ago might be less of a concern in dealing with a claim of self defense.

But the guy who used the marijuana will still have the federal law problem of being a prohibited person in possession of a gun. That can be good for up to five years in the federal slammer and comes with a lifetime loss of gun rights.
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Old December 15, 2012, 11:36 AM   #20
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Guns and drugs don't mix well, I am including alcohol in with drugs.
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Old December 15, 2012, 12:23 PM   #21
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Anyone who feels that "drugs" and "alcohol" are two different things just doesn't get it. Alcohol IS a drug. And it is MUCH more dangerous than marijuana.
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Old December 15, 2012, 12:30 PM   #22
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These states have created a monster that will soon show itself
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Old December 15, 2012, 04:32 PM   #23
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I think this situation, the so called legal pot will be far less of a problem than most people think. Users of cannabis tend to be passive even in the face of violence. Alcohol users tend to be aggressive. Understand that I am speaking in generalities. If the law was properly crafted only the intoxicated improper use of a firearm would be the issue. What a person did yesterday is of no import.
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Old December 15, 2012, 04:43 PM   #24
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"But the guy who used the marijuana will still have the federal law problem of being a prohibited person in possession of a gun. That can be good for up to five years in the federal slammer and comes with a lifetime loss of gun rights."

Only because the federal law is out of step with contemporary society.

The last time I filled out a 4473 I thought it was the most ridiculous thing I have seen. In the opinion of the gov't if you are a user of marijuana you are a menace to society, however you could be a raging alcoholic (a TRUE drug addict) and it is still ok to fill out the 4473 and get your gun.
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Old December 15, 2012, 04:58 PM   #25
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I'm not sure alcohol is much more dangerous but its certainly no better. If you are high or drunk and you are carrying a weapon you are breaking the law. In Iowa anyway. If you shoot someone while high or drunk i would expect you would go to prison. If i were on the jury I would hang ya out to dry unless it was painfully obvious that there was no other option. It would be a horribly stupid thing to do in either case.
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