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BloomLegalTV: DWI Technicalities with Marijuana

Posted on May 19, 2011 in Bloom Legal TV

Disclaimer: Nothing should be taken as actual legal advice. Each and every individual case is different and you should really seek your own attorney to evaluate each and every case.

A few questions were submitted recently regarding DWIs when not actually driving a vehicle. I'm not exactly sure how to answer that question. Certainly an element of getting a DWI conviction is that you were driving some kind of vehicle. It doesn't have to be a car; it can be a motorcycle, or a even a bike. Maybe a better question would be:

Do the police actually have to catch you driving the car when you were arrested?

That's a grey area of the law. Police have to be able to prove that you were driving the vehicle; if you walk up to a police officer and say, "I just got out of my car, and I was driving, " and he says, "Hey, you seem to be drunk," then, once you’ve admitted to a police officer that you were driving, they may be able to convict. Most of the time, however, when people get DWIs they are driving a vehicle.

Another, related, question concerns whether the key has to be in the ignition and the car has to be on to get a DWI. This depends on whether you were pulled over, and if you were just sleeping in your vehicle, and if the key is not in the ignition and the car is not on, then technically they can't give you a DWI because you're not driving. However, a lot of times it's hard to prove; police officers have a tendency to write in reports that you were driving or that the keys were in the ignition. If you want to just sleep in your car and it's in a parking lot, my  advice would be to make sure the keys are put away and the engine is not running.

Another question that someone submitted was what are some of the changes in marijuana laws, here in Orleans Parish, specifically. The law hasn't really changed at all. A number of months ago, District Attorney Leon Cannizzaro decided that, in order to free up some space in criminal court, he would now start allocating first-time marijuana arrests to municipal court, and they could be charged under the state statute, but still in municipal court. This was, supposedly, to free up space in criminal court for more serious offenses.

It's important to remember that even though it's still under the state code for marijuana, and even though it's done in municipal court, the penalties of misdemeanors can be pretty much the same, or have the same consequences on your record. Typically what they're offering now is you can pay a $400 fine, and it becomes a non-enhanceable offense. So, under the Louisiana statute for the crime of possession of marijuana, it's considered what's called an enhanceable offense. DWIs are enhanceable, marijuana offenses are enhanceable. That means if you get a first marijuana arrest and conviction, that's a misdemeanor. A second marijuana arrest and conviction is a felony charge, and you'll be charged with a felony the second time. Cannizzaro has made it so if the defendant puts in a plead, and pays the $400 fine on the first marijuana, it is a misdemeanor conviction against you; let's not be fooled--you are going to have a misdemeanor conviction against you--but, it's non enhanceable.

If you get a second conviction, within the next day or the next year, they can't use that first one to enhance it to the felony charge. That's what's really made the biggest difference. But again, if you get arrested for marijuana, or DWI, or any other offense, each case is different, each Parish is different.

You really need a specialized attorney that knows how to handle the intricacies of this law. Keep sending us questions. If you do have any specific legal questions, you need to hire an attorney, or give us a call, at 504-599-9997, and we'll be glad to answer your questions. But remember, you should get a lawyer, each case is completely different than the next, and the law's a complicated body of work, so you really need someone to analyze each individual case. Thanks, and have a great day.

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