Prior out-of-state convictions for marijuana can be very problematic if you are arrested for a possession offense in Iowa.
Iowa Code section 124.411 provides “an offense is considered a second or subsequent offense, if, prior to the person’s having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to . . . marijuana . . . .” Prosecutors typically rely on this provision in charging a second offense when you are charged with felony possession with intent to deliver or manufacture in Iowa and have any prior out-of-state conviction for marijuana. A conviction for a second felony drug offense in Iowa enables the sentencing judge to triple both the prison term and financial penalty.
That’s why the experienced drug defense attorneys at GRL closely scrutinize every criminal history in order to challenge any prior conviction that should be excluded from consideration. For example, what about violations of city ordinances, which are gaining in popularity under the nationwide efforts toward decriminalization, for personal use amounts of marijuana? Those are not convictions under a state or federal statute and shouldn’t be considered by the state for enhancement purposes. The same can be said for prior misdemeanor convictions where the defendant pleaded guilty to a drug charge without the advice and counsel of a criminal defense attorney and there’s no valid waiver of counsel. Those uncounseled pleas cannot be used to enhance a charge to a second felony offense.
We don’t simply rely on what the state provides as part of the trial information. Instead, we conduct our own independent investigation into past out-of-state plea and sentencing hearings. We gather documents showing the person wasn’t represented by counsel or pleaded guilty to an ordinance that doesn’t meet the parameters for enhancement.
When we find these errors, we move to strike those prior conviction from consideration, saving the clients potentially years behind bars and tens of thousands of dollars in fines.
Inexperienced attorneys often overlook one very important feature of law regarding prior convictions. It doesn’t apply to misdemeanor possession of marijuana under Iowa Code section 124.401(5). In order to count as a second or subsequent offense under that section, the prior conviction must be for “a violation of this subsection.” This means the prior conviction for simple possession must occur in Iowa, not another state. So, even in misdemeanor matters, we review and challenge, when necessary, any prior Iowa conviction that is used to enhance the underlying charge to a second or subsequent offense for personal use amounts of marijuana.
This is just another example of why those charged with marijuana offenses rely on the attorneys at GRL for professional representation.
