Submit your questions to firstname.lastname@example.org. Civil matters only, please.
Question: “I was always told that the United States Constitution superseded all other laws in America. If this is true how is marijuana now legal in a lot of states, when it is claimed to be illegal in the U.S. Constitution? Do states have more power than the federal government now?”
Answer: State laws have no effect on Federal laws. So, the Federal government can still prosecute and enforce federal marijuana criminal laws if it wishes to do so. While some states have taken the lead and experimented with marijuana legalization and decriminalization, marijuana remains largely banned in Louisiana. Despite how liberal other state laws are across the country, federal law still treats marijuana as a controlled substance, just like cocaine or heroin. Federal law states that the use, sale or distribution of marijuana illegal. Current federal drug laws are contained in the Controlled Substances Act (CSA). Penalties for violating the CSA are not just targeting growers and distributors. Simple possession with no intent to distribute is a misdemeanor, punishable by up to one year in prison and a minimum fine of $1,000. However, those who are exempt, are patients of the state-sponsored medical marijuana program in Louisiana, and possesses medical marijuana in accordance with the following guidelines.
THE LAW: Article VI, Clause 2 in the United States Constitution establishes the Supremacy Clause, federal laws made pursuant to it, and treaties made under its authority, constitute “the supreme law of the land”. Under federal law, it is illegal to possess, use, buy, sell, or cultivate marijuana in all United States jurisdictions, since the Controlled Substances Act of 1970 classifies marijuana as a Schedule I drug, claiming it has a high potential for abuse and has no acceptable medical use. The use of marijuana is illegal in the United States, but the government allows individual states to pass laws that “DECRIMINALIZE” the recreational or medicinal use of the drug if the state has a regulatory system in place. In Louisiana, RS 40:966 D, if a person knowingly or intentionally possesses a controlled substance as classified in Schedule I, unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978, while acting in the course of his professional practice, where the amount of the controlled substance is equal to or above the following weights, it shall be considered a violation of Subsection A of this Section (1) For marijuana, tetrahydrocannabinol, synthetic cannabinoids, or chemical derivatives thereof, two and one-half pounds. (2) For any other Schedule I controlled substance, twenty-eight grams. Immunity from prosecution. (1) Any person who is a patient of the state-sponsored medical marijuana program in Louisiana, and possesses medical marijuana in a form permissible under R.S. 40:1046 for a condition enumerated therein, a caregiver as defined in R.S. 15:1503, or any person who is a domiciliary parent of a minor child who possesses medical marijuana on behalf of his minor child in a form permissible under R.S. 40:1046 for a condition enumerated therein pursuant to a legitimate medical marijuana prescription or recommendation issued by a physician licensed by and in good standing with the Louisiana State Board of Medical Examiners, shall be exempt from the provisions of this Section. This Paragraph shall not prevent the arrest or prosecution of any person for diversion of marijuana or any of its derivatives or other conduct outside the scope of the state-sponsored medical marijuana program. Also, see https://criminal.findlaw.com/criminal-charges/federal-marijuana-laws.html
Question: “My elderly grandmother has a nurse who goes to her home to assist her with physical therapy 4 days a week. I have suspicion that the nurse may be hurting my grandmother and taking money from her. I am in charge of her finances and unexplained checks are being written but my grandmother seems afraid to talk about this. Are there laws to help protect the elderly?”
Answer: Most certainly there are. Your observations of finances and her fear to talk with you about this are signs that abuse may be occurring. In LA, if you do not report the abuse or neglect of an adult you may be found guilty of a misdemeanor and upon conviction could be fined not more than five hundred dollars or imprisoned for not more than six months, or both. Elderly Protective Services is a State agency that investigates allegations.
THE LAW: Louisiana Legislature Revised Statute. 14:403.2, 15:1501 et.seq. protects adults aged 60 or older from acts or omissions which result in physical or emotional abuse and neglect, inflicted by caregivers and from self-neglect by an individual. Louisiana law also protects seniors from acts of financial exploitation and extortion. Report Elder Abuse Domestic/Community 1-800-259-4990 (Toll free in Louisiana)
Question: “I noticed that an expungement event was going to be held in Lake Charles. I received a first time offender pardon already, isn’t a pardon better than an expungement because it does not allow employers to know I was arrested and convicted?”
Answer: An expungement, not a pardon, seals your record from the public. There are two kinds of pardons both of which restore certain rights. First Offender Pardon (La. Rev. Stat. Ann. § 15:572(C) applies to a person “convicted within this state of a felony but never previously convicted of a felony” but does not prevent the State from using your record against you in the future, nor does it seal the record from public view. A full governor’s pardon, however, prevents your records from being used against you at a later time for subsequent convictions and returns the accused to the state he was in prior to arrest.
An “Expungement” means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and other state agencies as stated under Louisiana law. (CCPR 972 et seq). Information on the event you mentioned can be found at www.freshstartcalcasieu.com
Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.