Yesterday, I was sentenced by Ada County Magistrate Judge, Michael Oths, after being convicted by Jury Trial on March 7th, 2018, for three counts of Possession of a Controlled Substance (Marijuana), and three counts of Possession of Paraphernalia.
See My Adventures in Weed Court 1, 2, 3 & 4.
I was greatly blessed to have received 16 thoughtful character references from my family, friends, and other activists I've worked with over the years. The judge had received 12 of them through the e-file system of Idaho's iCourt, but had not received the last 4.
I provided both the judge and the prosecutor with courtesy copies I had prepared on the risk the last minute additions had not been received. Judge Oths took the time to go through each and make sure he had received each. Then he read the ones that he had not received as the entire court room sat in silence.
The prosecutor representing the State of Idaho, through the Ada County Prosecutor, was Enrique Gutierrez, who had also been part of my trial. He was very kind as he gave his sentencing recommendations to the court. He was adamant that the State was not requesting jail time and he made it very clear that he did not believe that I am a bad person.
Enrique said that jail time was obviously not going to deter me from using Marijuana. He referenced the affidavits of my friends and family. He also mentioned that I now live in Oregon, where Marijuana is legal. He mentioned it was my right to rally and protest, but asked for unsupervised probation with jail time held over my head to attempt to deter me from violating Idaho law again. He suggested that I could use Marijuana at my home, now in Oregon where it is legal, but if I come to Idaho, I shouldn't be violating the law.
Enrique also requested that I reimburse the "victims" of my cases (Ada County Sheriff and the Idaho State Police) for the time and lab testing associated with my cases. He asked for $1,000 fine, with $250 suspended, to cover the costs of the thirty something police officers that attended the first Idaho Moms for Marijuana smoke out, plus more fines for lab fees, police testimony, and expert testimony from the chemists. He also very kindly suggested using the paraphernalia charges for the probation sentence to make certain I didn't have to complete the mandatory community service hours that comes with drug convictions in Idaho.
When it was my turn to provide the defense's recommendations, I told the judge that I felt it was his discretion. I talked about civil disobedience and about willingly accepting any consequences determined by the court, because it was my moral obligation to violate these harmful laws to raise awareness of the need for change in my home state.
Judge Oths then gave his judgement on my sentence.
He mentioned that I had been acquitted of some of the charges during trial (Obstruct & Delay).
He discussed my character references, and commented on the speech I had given during the first Smoke Out protest, part of which he had allowed to be played during my trial. He said that I had been respectful of the police when they asked me not to light the joint, and of the court while I represented myself during the proceedings. He also mentioned that I had been responsible by encouraging people to not bring their children to the smoke out.
Judge Oths pointed out that the protests had been peaceful which is definitely my right to freedom of speech. He said that during court, and the protests, I behaved like an adult and thanked me for my respect. He said he just thought I was going about it the wrong way and that I needed to have the threat of jail as part of my sentence, so that I would be deterred from violating Idaho law again.
Judge Oths did agree with Enrique that I should have to pay the restitution to my so-called "victims" for the lab costs, but he didn't agree that I should have to pay for the presence of law enforcement at the protest, because they were going to be there regardless of if I was charged.
The official sentence was:
- 2 years unsupervised probation to run concurrent for all 6 charges,
with the condition of NO NEW CRIMES
- $100 fine to the Ada County Sheriff for the first case (where I was a passenger in a vehicle)
- 90 days for each charge in the first case for a total of 180 days (all suspended)
- $382.87 fine to the Idaho State Police for the 2nd & 3rd cases (New Years Smoke Outs)
- 180 days for each charge for a total of 720 days (all suspended)
- ZERO COURT COSTS!
So in total, $482.87 in restitution, and exactly 900 days held over my head, unsupervised, for 2 years.
(Commonly, probation violations may also be ordered to run concurrent so if I was to violate and be found guilty, it could be as little as 180 days, or as much as 3 years, depending on the judge's discretion.)
The sentence is definitely less demanding than the sentence recommendations that the original plea offer had promised had I just plead guilty to everything in the first case (obstruct & delay, possession of marijuana, possession of paraphernalia) - (see original offer) - which included 100 hours community service plus supervision costs $$$, and drug and alcohol classes + more costs $$$ (that I likely wouldn't pass because I would not be able to refrain from arguing against the lies they teach about Marijuana and I hear that is required.) Not to mention the addition of the other charges and any plea agreement had I taken it.
Then the Judge did something that completely took me by surprise.
In addition to filing the character reference affidavits I had received, I had also filed a Motion to Stay the Execution of the Sentence pending my planned appeal of the convictions.
I had expected the motion to be denied. I figured, as with my pretrial motions for appeal, it would be denied and I would have to ask the District Court or even the Supreme Court to stay my sentence when I appealed. I wasn't even sure that was going to work either and I knew there was a possibility that I would have to complete the sentence prior to having my appeal determined by the Idaho Appellate Court.
When asked about it, Enrique said I was premature to ask because I had filed it prior to being sentenced. He said that for the appeals, he wanted a clean record and wanted me to file a new one. (I'd filed it early, with combined motion for appeal bond/release - on attorney recommendation, in the hopes to prevent any immediate jail time should the judge have chosen that for my sentence.)
But Judge Oths granted my motion to stay!
He said that I preserved the record well for appeal, and that it was definitely a question of law regarding whether or not the court erred in denying me the Necessity Defense.
He even said he would create his own order for it so that it was a clean record for the appeal, and I didn't have to write a new one.
Meaning, once he creates that order, the entire sentence is stayed (stopped) until I receive a decision on my appeals. Including in the Idaho Supreme Court.
My family has retained an appellate attorney for me to begin the process. I now have Dennis Benjamin Esq. of NEVIN, BENJAMIN, McCAY & BARTLETT , representing me for my appeals. After court, my new attorney impressed me by immediately filing the Notice of Appeal, just as I had asked.
Which also immediately stayed the sentence for at least 14 days, pursuant to IRCP 83.
So, because of the immediate stay and the order the Judge has promised, I don't have to pay a dime, and my probation does not begin, until I have exhausted all appeal options.
And that's good.
Because according to the sentence I have been given, once it begins, I will be officially banned from Idaho under threat of arrest and, at max, almost 3 years in jail.
I will be essentially exiled for 2 years.
All because I choose a better quality of life.
I don't think that the gentlemen at court yesterday knew what that sentence really meant for my life.
Both have shown themselves to be very good people, who are merely in positions of authority that must enforce Idaho law. I don't believe either truly agrees with Idaho's marijuana laws, just like majority of the people in the State.
And I definitely don't believe it was Judge Oths who made the decision to deny me the Necessity Defense.
After getting to know Judge Oths during my trial, I truly believe that it was a higher up somewhere that had their hand in that one. Someone put their foot down and is forcing me to appeal and climb the ladder of courts if I want to use that defense.
So, challenge accepted. I definitely will.
But I don't think that either Judge Oths, or Enrique, really understand what the sentence that was given truly means for me and my life, if I lose my appeals.
What I think they see:
No jail time was given. No community service. A great deal for 6 charges. Just pay some money and please stop protesting by trying to smoke joints at the capitol and leave your marijuana at home in Oregon.
I am in exile. For good as a citizen, until Idaho changes their laws.
For 2 years in person, at least, I cannot even visit my family if I am to follow the requirements of probation.
I cannot even cross the border.
WHY? -- Because I am a medical marijuana patient.
Despite the denial of the defense, I still have necessity to use Marijuana.
Every single day. Multiple times a day.
It is necessary for me to use Marijuana to even get out of bed and move.
It is necessary for me to use Marijuana to be able to function in a normal way.
And it is definitely necessary to be able to care for my family.
What I think the gentlemen in that court didn't even realize is that because of Idaho's harmful marijuana laws, I broke the law every single time they saw me. I would not have even been able to even get to court, or present my own case, if I had not violated the law every time I left my house the entire time I lived in Idaho.
It was necessary for me to use marijuana to even be able to repeatedly drive my car and to go stand in court. I couldn't have done it without Cannabis. Much less, would I have been able to represent myself in a 10 hour trial, or even be at sentencing yesterday. Or even have the ability and the time to write and submit any of my own paperwork.
I am officially disabled for a reason.
A very real reason.
And even now, living in Oregon, I break the law just by driving over the border to visit home. Even if I leave my medicine at home.
I was breaking the law merely standing in front of the judge while I was being sentenced yesterday.
Because, despite the court's disagreement, out of Necessity, I MUST BREAK IDAHO LAW to even set foot in Idaho.
Because I am sick and Marijuana is my medicine.
According to Idaho Statute Title 37, Chapter 27 §37-2732C:
"It is unlawful for any person on a public roadway, on a public conveyance, on public property or on private property open to the public, to use or be under the influence of any controlled substance."
In order to go anywhere in Idaho, I MUST be under the influence of Marijuana.
Because in order to go anywhere at all, I MUST be under the influence of Marijuana.
Physical and medical necessity caused by my disability dictates these very certain terms.
I also must usually carry my medicine with me because it is used as needed and sometimes that need is abrupt and spontaneous because of the symptoms of my condition. It's either that, or I am forced to deal with immediate, extremely debilitating pain, among other physical complications.
I must carry my medicine, the same way people with most medical conditions carry their medicine, or I could be, what I call, "grounded" and unable to move.
So, if I lose my appeals and my sentence begins, then I will be guilty of violating my probation if I go to home, because it is a crime just for me to enter the state of Idaho. A crime I civilly and willfully disobey all of the time right now, because it is MY HOME and I have a right to be there. An imaginary line shouldn't decide if I can see my family.
If I am on probation, supervised or not, every time I enter, I will be in violation of that probation because I always have active marijuana metabolites in my system (and have had them in my system, daily, for the last 14 years), which is committing a new crime.
With almost 3 years of jail time over my head, that would officially put me in exile in order to truly submit to the terms of that probation.
Officially banned from Idaho for choosing a better quality of life.
I wouldn't be able to go home for 2 years.
No holidays with my family.
No visiting my friends.
No taking my kids camping in Idaho's amazing forests.
No concerts or festivals.
No activism or rallying to change Idaho laws.
No visiting my mother's grave.
No crossing the border at all if I am truly going to be compliant with the terms of that probation.
But I will fight for my right to go home.
My adventures in Weed Court are definitely far from over.
And by granting a stay of sentence, Judge Oths has given me, at least, a little more time to fight back without violating the terms and being banished from my home for my choice in a nontoxic medicine.
So we are on to appeals, with the hopes of challenging and changing Idaho's Necessity Defense precedence back to what it should be - allowed in jury trial for all of Idaho's marijuana patients.
Thank you for your continued love & support!
HOW YOU CAN HELP:
My family has retained Dennis Benjamin as my appellate attorney, but does not have the ability to pay anything beyond the retainer. Mr. Benjamin charges $250 an hour, and is rumored to be one of the best appellate attorneys in Boise. He has been given $5,000 to start.
That really only equals out to 20 hours, and by the time transcripts required for appeal are paid, the amount of hours available will be much less.
Once that money runs out, it's done, and I will have to represent myself again.
And I will if I must.
I truly believe that we can actually make some changes in Idaho courts, so this will happen either way. But the longer I can keep Mr. Benjamin, the better.
Many have offered to help by donating. If anyone wishes to do so, they can donate at this fundraising campaign, or to me directly through PayPal, with my email address - email@example.com
HELP LEGALIZE IDAHO!
Legalize Idaho is a new, collaborated, community effort to reform Idaho's archaic Marijuana laws.
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Learn more at www.legalizeidaho.org
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Help us demand reform of Idaho's laws!
Because prosecution isn't ever going to stop us from protesting.
And someday soon, we will light up on the Idaho Capitol steps!
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