Category Archive: Dagga Legal

Britons who legally smoke cannabis in the US ‘risk being deported’

Warning comes amid rise in expulsions under federal law – even in states where drug is legal

Don’t be fooled by the use of “Britons” in the headline. This article first appeared in the Guardian, a UK newspaper, hence the focus on Britons, but the warning applies to all visitors to the US. As cannabis legislation has relaxed here in South Africa, we are even more likely to feel “safe” when visiting a US state that has also legalised marijuana. Remember the US is a highly devolved jurisdiction, with many laws set by the states and, as a result, legislation varies considerably from state to state. But there is an anomaly that exists with cannabis law: at federal level it is still illegal, and immigration falls under federal law. Read on for more important information if you are planning to visit the US.

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A legal expert at an international immigration firm has warned British tourists and employees that if they smoke marijuana in the US, even in states where it has been legalised, they risk being barred from the country for life.

UK visitors can still be arrested and deported from the US even if they consume cannabis in states such as California and Colorado, where the drug is legal, said Charlotte Slocombe, a senior partner at Fragomen in London.

Slocombe says her firm and others that deal with US immigration laws have seen a rise in cases where British holidaymakers and green card holders, working legally in the US, are being expelled or denied entry because of cannabis consumption in states where it is legal.

She said in a scenario where Americans were caught by police smoking cannabis at a party, in a state where it was legal, they could not be arrested. British people and other foreign tourists at the same party, however, could be arrested, deported and branded unfit to re-enter the US.

The warning comes as a growing number of US states are expected to legalise cannabis, among them New York and New Jersey, which will follow 11 states, including Washington DC, that have made the drug legal. Despite that change, under US federal law the drug remains illegal – meaning that foreign visitors can be sanctioned.

“Canada legalised cannabis in 2018 but as the US customs and Border Protection keep saying, US federal law has not changed,” said Slocombe. “What is confusing to people is that while states in the USA have legalised cannabis it remains illegal federally.

“Even if you are a foreigner in a state where it’s legal, it’s still illegal for you federally. If, for example, you buy cannabis from a legal dispensary and that dispensary asks for your passport details as ID that information might be discoverable. It could then trigger, as can admission of drug taking, immigration issues because immigration is covered by federal law not state law.

“This is how people get caught out even though they think they are doing something which is now legal in that state. Equally that would include green card holders and those who hold visas to live and work in the US. Even for an American it is federally illegal, but because they are not subject to US federal immigration laws they would not be as vulnerable.”

Slocombe said federal law trumped state law, and as a foreigner this could trigger inadmissability under US immigration legislation.

“Don’t take any risks, while you are not breaking state law you are still breaching federal law. It’s too dangerous because the consequences are enormous and you might be ineligible for ESTA entry and a visa forever,” she said.

Slocombe warned it was not just cannabis consumers who ran the risk of being deported and potentially permanently barred from the US. Investors, shareholders or firms that supply equipment for legal cannabis producers in also run the same risk.

“There is one example I am aware of where two known investors in the US cannabis industry, who are foreigners and on visas, had their investment deemed illegal in federal law. Another example is a farmer who was on a visa and sold a portion of his land to a cannabis producer and filed US tax returns. That came up as an issue when he tried to apply to renew his visa.”

She said Fragomen had even advised non-US technology companies to be careful over supplying IT services to American cannabis companies.

“Customs and Border Protection state that they have the right to question you about your travel to the US and the industry you are in. So if you are going to do something related to the cannabis industry then yes you could find yourself inadmissible to enter the US.”

Reprinted with thanks to the Guardian

If you need help…

Although possession of cannabis for personal use is no longer illegal, the police are still getting to grips with the implications of the change in legislation. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorneyCape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7 and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146.

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Dagga – It’s now legal – The Con Court ruling explained

Dagga legalisation in South Africa

Dagga legalisation has been big news in the past week. But what exactly does it mean in practice?

Since last week’s Constitutional Court ruling on the possession of dagga for private use, SD Law has been inundated with queries about the practical implications of this decision. How does it differ from last year’s Western Cape High Court ruling? Is possession of dagga now legal? We attempt to answer your questions.

 

The High Court ruling

If you’ve been following our blog you’ll remember that we wrote recently about the difference between possession of marijuana – dagga or cannabis – and intent to deal (read more). We also covered the 2017 Western Cape High Court ruling that allowed the use of dagga by adults at home (read more).

Last year’s ruling cited the right to privacy guaranteed by our Constitution, and allowed for this right to be used as a defence if charged with possession in your own home. As we’ve pointed out previously, that decision did not legalise marijuana use, but it did pave the way for Parliament to enact a change in legislation.

 

What the Constitutional Court ruling means

The Constitutional Court decision of 18 September 2018 went further than the 2017 High Court ruling in that it effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. It’s important to note that the Con Court does not make the laws; it can only rule on the constitutionality or otherwise of existing laws. However, if a law is found to be unconstitutional, the onus is then on Parliament to remedy the fault in the law. So, the law criminalising possession of marijuana is still on the statute books, but the order has been suspended. The Court has provided interim relief that renders it unlawful for the police to arrest adults for private cultivation, possession and use of small amounts of cannabis. Parliament should enact a change in legislation within the next two years.

 

How much is a small amount?

As we explained in our blog post on possession last month, the historical threshold of 115g has been relaxed, in favour of a more pragmatic approach to determining intent. The burden of proof is now on the State to show that the accused intended to supply the dagga in his or her possession to someone else for profit. This might hold true for an amount less than 115g, or a quantity in excess of 115g could still be purely for personal use.

Last week’s ruling did not contain any indication of the quantities that would be considered ‘for private consumption’. It acknowledged that the greater the amount held, the greater the likelihood that dealing would take place. However, it reinforced the onus on the State to prove intent and ensured that police officers would give a potential accused the benefit of the doubt. According to Deputy Chief Justice Raymond Zondo, “…there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption.”

 

The definition of ‘private’

Another point of difference between the Con Court and the High Court rulings is the definition of privacy. Whereas the High Court was quite specific about the right to privacy providing a defence if found in possession in one’s own home, the Con Court did not specify in the judgement what constitutes a private place. Rather, the Court modified last year’s Order to reflect that a ‘private place’ can extend to more than just one’s literal home. It is probably safe to assume that a home, office, pocket, storage facility or car would amount to a private place.

 

Cultivation

The Con Court ruling also specifically allowed for cultivation of cannabis for private use, and went on to define privacy in the context of cultivation: “An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

 

What is the right to privacy?

The right to privacy simply means the right to live your life without interference from the State or from other individuals or entities. The right to privacy is enshrined in the United Nations Universal Declaration of Human Rights: “The Right to Privacy. Nobody should try to harm our good name. Nobody has the right to come into our home, open our letters, or bother us or our family without a good reason.”

Given the iniquitous abuse of this right in the apartheid era, it is unsurprising that our Constitution upholds the right to privacy as a pillar of a fair and just society. The Court stated, “A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place…”

 

A global trend

South Africa joins 33 jurisdictions around the world where the use of cannabis has been decriminalised or legalised. Canada is the most recent to liberalise its laws on possession and cultivation, with some variance from province to province on the details (e.g. number of plants allowed to be grown and where) but an overall national legalisation framework. The US also has state-by-state legislation, with some states fully decriminalised, some allowing medical use only and some still criminalising all use; but a growing number of states allow recreational use and cultivation, with a varying number of plants permitted to be grown depending on the state.

 

No deal

Remember it is still illegal to deal in dagga! If you grow or carry cannabis for sale or supply to others, you are breaking the law. The relaxation in approach does not extend to dealing in the substance. The right to privacy will not protect you if you sell marijuana, or if you consume it in a public place. Enjoy the new freedom, but don’t abuse it. Consume cannabis responsibly or you could still fall foul of the law.

 

If you have been charged with possession…

Ordinarily, under the doctrine of objective Constitutional validity, the moment a law is declared unconstitutional, the legal position is that the law has always been so. The implications for criminal law are that any prior convictions are invalid, and will be set aside. To prevent disorder, Courts may postpone or suspend the operation of invalidity. In this case, the Court rejected retrospective operation. This means that previous convictions stand. If you would like more information, feel free to contact us – we’re here to help.

 

Contact us

Cape Town Law firm, Simon Dippenaar & Associates Inc. can help. If you need advice regarding a charge of possession or dealing, call Cape Town Attorney Simon immediately on +27 (0) 86 099 5146 or contact us. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law, especially if the police have acted without full knowledge of the recent changes.

Further reading and latest update:

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