The Law of MDMA: Practical Legal Tips for Ravers who Choose to Use Ecstasy

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“I just took six hits of Molly.” Those were 20-year-old Olivia Rotondo’s last words to an EMS worker at this year’s Electric Zoo Music Festival. Jeffrey Russ, 24, also died from an MDMA overdose at that same event. Four other people were hospitalized.

Fortunately, the media used the tragedy at Electric Zoo to have a thoughtful, informed discussion about MDMA use in the EDM community. Just kidding. The media chose the “Blind Hysteria” option. For example, The New York Daily News’ headline the next day was simply “DEATH FEST”.

It wasn’t all that long ago that Congress was attempting to outright ban all raves and dance music events on the basis that club owners and promoters knowingly allowed illegal drug activity on their premises. And when a teenager died at Electric Daisy Carnival in 2010, California politicians immediately proposed the “Anti Raves Act” of 2011 to ban raves entirely in the state.

That’s why I am suggesting it is up to the dance community to police itself now before the government jumps into EDM events to propose new regulations or ban raves completely.

What can the dance community do to make sure a tragedy like this doesn’t happen again? It can make sure that festivals are doing everything possible to make sure people are safe when they go to an EDM event. And ravers themselves need to be doing more on their part to party responsibly and to look out for their festival buddies.

This is a two-part “Ecstasy safety” article. Part One focuses on practical legal advice so that you know your legal rights if you or a friend use MDMA. Part Two focuses on practical medical and “harm reduction” tips.

RAVE LEGAL TIP #1
If the police stop you at a rave, ask if you are being detained and leave IMMEDIATELY if you aren’t.

Let’s say you are at a rave and a cop stops you and asks to search you. What do you do?
Everyone should know and understand their basic legal rights in this situation.

1) Ask if you are being detained or arrested.
2) Exercise your Constitutional right to remain silent.
3) Do not consent to any search of your person or property.
4) Have your “Festival Buddy” record your encounter with the officer.

I have already covered all of this in a prior article in a lot more detail. If you haven’t already read it or need a refresher of your basic rights, take a look here.

Most Ecstasy cases in criminal court involve a detention and subsequent search by the police. That’s why it’s so important to ask the key Festival Lawyer phrase: “Am I being detained? Why? Am I free to go, or am I under arrest?”

If a cop detains you, unless you verbally ask to leave, a Judge will assume you agreed to the encounter with that officer.

Also, if an officer says you can leave, it’s up to you to leave the scene of the encounter immediately. If you choose to stay, the detention is automatically legal.

That’s why it is critical to ALWAYS ask the cop if you are free to leave. If not, you know you are a suspect in a crime. That means you need to remain silent and wait for a lawyer. If, on the other hand, the cop says you are free to leave then leave immediately.

Listen, I know you may want to stick around and debate with the cop his opinion on whether dubstep is dead or not. But don’t. As I always tell my clients when I get a good result in court, “Let’s leave before someone changes their mind.”

RAVE LEGAL TIP #2
If you are “Under the Influence” of Ecstasy, you can be arrested and searched at any time.

California’s Health and Safety Code Section 11550 makes it a misdemeanor to be “under the influence” of a controlled substance like MDMA.

When someone is driving a truck and the truck has a broken taillight or another vehicle code violation, cops use the slang phrase, “rolling probable cause” to describe it. This means they can stop that vehicle and investigate the occupants at any time. The owner of that truck has basically given the cops a standing invitation to be investigated.

The law says that if a cop is a DRE (Drug Recognition Expert) and he can see “objective symptoms” that you are high on Ecstasy, you can be arrested and searched at any time.

From a legal standpoint you need to be aware that if you are high on MDMA, you are just like that truck with a broken taillight. You are ”rolling probable cause” and subject to being stopped, arrested, and searched.

RAVE LEGAL TIP #3
If you are caught with Ecstasy, what you intended to do with it makes a huge difference.

Under California law, possession of MDMA is treated as the same type of felony (Health and Safety Code Section 11377) as possession of Methamphetamine. After all, MDMA is short for Methylenedioxymethamphetamine.

Let’s take a scenario where you are stopped at a rave and found with Molly on your person. Now what?

In California, the law looks to see what you intended to do with that powder. If it’s a small amount and you can show that it was just for your own “personal use” you should be okay. The law calls this “simple” drug possession and you should be eligible for a drug diversion program or perhaps a minor misdemeanor charge.

If on the other hand, the government can show that you intended to sell (or distribute) that Molly, you just crossed a very serious line. It’s a “Smokey, You are entering a world of pain” level of line crossing.

That’s because “Possession for Sale” of Ecstasy is what is called a “Non Alternative” Felony under Health and Safety 11378(a). This type of felony makes you ineligible for any kind of “diversion” or other drug program. It also means you can’t get a misdemeanor on the case. Instead you now face a mandatory felony and potential jail time.

Remember how I told you that possession of Ecstasy is treated the same as possession of methamphetamine? I said that for a reason. Under the law, if the cops can show that you intended to sell (or distribute) the Ecstasy, you and Heisenberg both get the same charge – namely, a felony under Health and Safety Code Section 11378(a).

RAVE LEGAL TIP #4
Cops are legally allowed to lie to you in an interview.

Okay, so how do the courts determine what you intended to do with that Ecstasy you were caught with?

Normally, the police will look at things like how much MDMA you had, how much money you had with you, how it was packaged, what kind of texts you have on your phone, and also what you told the police about your intent.

Most people are taught to cooperate with the cops and we are taught from a young age to trust the police. So a lot of people end up talking to the cops. Cops will always ask what you intended to with the Ecstasy.

But here is something you may not know:
COPS ARE ALLOWED TO LIE TO YOUR FACE DURING AN INTERVIEW

Let that sink in. Cops can totally tell you stuff like, “We have a witness who says you sold him the drugs” or “We have you on videotape selling” or anything else they can think of to get you to confess.

One of the police’s favorite things to do is to try to get you to admit to something that sounds like it is not that serious but really IS just as serious legally.

Example, “Listen bro…I know you weren’t going to sell these pills. I bet you had that many pills because you were just going to give some to your friends to party with, right?”

Gee what a cool cop. He totally gets me and my vibe. Heck he probably is a member of the PLUR police…Oh wait…did I mention that the law considers “distribution” of drugs the same as the “sale” of drugs? That’s right, if you admit you were “giving away” the drugs, it’s the same legally as admitting you are a drug dealer.

Bottom line, if you get arrested, don’t talk, and ask for a lawyer immediately. Asking for a lawyer USED TO stop the interrogation then and there. A very recent Supreme Court case, (Montejo v. Louisiana) now allows police to keep trying to get you to talk. BUT DON’T ANSWER THEM. When the police tell you that anything you say can and will be used against you in court, they’re not joking.

RAVE LEGAL TIP #5
NEVER give away or take drugs from strangers

Spoiler Alert: In next week’s “Medical Safety” article, one of the key tips from drug experts is to never take drugs from someone you don’t know (and never take drugs that have not been tested).

Turns out there is similar advice from the legal experts (me). Here’s why:

Sales of Ecstasy is also a mandatory “non-alternative” felony (California Health and Safety Code 11379). This charge normally involves someone selling to an undercover cop or buying from an undercover cop.

I can’t tell you the number of times someone has said to me “This guy came up to me and just kept bugging me for drugs and I eventually gave him some. Turns out it was a cop. I was totally entrapped into giving him drugs!”

This is a pretty common misconception. Actually, Entrapment only applies where law enforcement engages in conduct that would likely induce a normally law-abiding citizen to commit that crime. (People v. Grantham (1972) 26 Cal.App.3d 661, 665)

That means that you have to show that the undercover officer did more than ask you for drugs. You have to show that he pressured, harassed or threatened you as well.

That means it is perfectly legal for a cop to ask you to sell them drugs or even ask you repeatedly if you can “help them out” or just give them drugs. This is why being friendly and “giving away” some Molly to a stranger is not an #upgrade, but actually #dumb.

Bonus Legal Tip – If you ask a cop if he is an undercover cop he can totally lie.

Okay can everyone PLEASE stop spreading the urban myth that if you ask an undercover cop if he is a cop he has to tell you the truth? It’s hard to know why so many people believe this. I mean, how would cops ever work undercover if it was true?

The law says that an undercover cop can totally lie to you if you ask him if he is a cop. But I mean really you should already know this. Didn’t everybody see that episode of Breaking Bad where this was all explained by Badger?

Thoughts On Our Drug War

I know you are probably thinking, “Hey Festival Lawyer, it’s a good thing our society makes drug policy decisions based on evidence about the drug’s dangerousness vs. its potential benefit to society, right?”

Hahahaha…That’s a good one. Oh wait, you were serious? No. We make drug policy for all kinds of crazy reasons.

Don’t believe me? Well I give you Festival Lawyer Exhibit One: The DEA’s complete shenanigans in making MDMA illegal in the first place.

In the late 80s hearings were held to determine if MDMA should be considered a “Schedule I” drug under Federal Law. A Schedule I drug has no “legitimate medical purpose” and has a “high potential for abuse”.

A number of psychiatrists and psychotherapists testified that they used MDMA in their practice and it had a legitimate medical purpose. In fact, a Federal judge, hearing this testimony, made a recommendation that MDMA be made a “Schedule III” drug. This would have let doctors continue to use and research the drug. The judge felt that the DEA could then make a future determination about the dangerousness of the drug.

The DEA was like “evidence based decision making…what’s that?”, ignored the medical evidence, ignored the judge’s recommendation and went ahead and made it illegal for all purposes.

To sum up, the DEA made MDMA illegal because it was too “dangerous” to the public. Ironically, the act of classifying it as “dangerous” and illegal MADE it way more dangerous. Because we aren’t researching it and studying it, we really have little idea how dangerous it is. That’s some serious, next level, ten thousand spoons when you all you need is a knife, level of irony.

That is why I believe so strongly in educating yourself about your rights and empowering yourself to make smart choices.

As part of that education, next week’s article focuses on tips to keep yourself “medically safe” through the use of test kits and other “harm reduction” ideas.