Going to Prison For Misdemeanor DWI

Minnesota-Felony-DWI-Prison.jpgThe heart of this case — State v. Boecker if you want to read it yourself — involves the type of issue that only lawyers can really get behind . . . complex statutory interpretation. But even the most convoluted cases can be simplified for non-lawyers, and State v. Boecker is no exception. Basically, this case came about because the Minnesota Legislature has done a terrible job writing our DWI laws, creating loopholes and contradictions across various statutes. Because we get a new Legislature every two years, the situation gets progressively worse, as future law makers then make even dumber decisions, like inserting language describing the “intent” of previous lawmakers from decades past.

This isn’t uncommon — very few of our legislators are actual attorneys, or even have legal training— but it seems to get especially ugly with our DWI laws. And our Courts, who are responsible for interpreting the letter of the law (not the “spirit,” and especially not when the statute imposes a criminal penalty) sometimes make a deliberate effort to “look the other way” when a DWI law is being scrutinized for lousy drafting.

And that’s what happened here. Minnesota’s DWI laws make any DWI a felony-level offense (meaning you can go to prison) if you have a prior felony offense at any point in your lifetime. In fact, the statute lists all of the possible ways of enhancing a misdemeanor DWI to a felony.

But in Boecker’s case, the statute didn’t list his specific offense, that happened in 1998. The Minnesota Supreme Court relied largely on some “statement of intent” language that was inserted by the 2012 Legislature, purporting to describe the intent of the 2007 Legislature . . . and things just got more confusing from there. Long story short, the Court concluded that even though Mr. Boecker’s prior 1998 DWI wasn’t listed as an option for enhancing his current offense to the level of a felony, they were just going to “read it into the statute” (that’s me paraphrasing).

That’s typically a huge no-no — if a criminal statute doesn’t say something explicitly, it’s not the role of the the Courts to invent language to cover any gaps. But that’s what happened in Boecker . . . and now he’s going to spend several years in prison for driving with an alcohol concentration of 0.14. That may or may not have been the intent of the Legislature, but if it was their intent, they should have done a much, much better job of saying it.

Source: Ramsay Law Firm

Marijuana DUIs Are Still Too Subjective Say Cops. Why No BreathTest?

Although consuming cannabis is legal in Colorado and several other states, driving while under the influence of the drug is not.

Nick Pedersen/Getty Images

This spring, 16 state patrol officers from Colorado and Wyoming took a couple days off their usual work schedule to do something special. They assembled in a hotel conference room in Denver. As instructed, they wore street clothes for their first assignment: going shopping at nearby marijuana dispensaries.

“It’s a brave new world,” said instructor Chris Halsor, referring to the years since Colorado legalized recreational marijuana.

There are now more marijuana dispensaries in Colorado than there are Starbucks shops, said Halsor, a Denver lawyer and former prosecutor. And though consuming cannabis is legal across the state, driving under its influence is not.

The cops in that conference room, with their buzz cuts and Mountain Dew, are all part of the force charged with keeping the roads safe. But first, they needed a formal pot education — to learn how to identify various marijuana products and paraphernalia when they pull over a driver they suspect is under the influence.

Here’s the rub: Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired.

Yessenia Hinojos, a budtender at a Denver cannabis dispensary called The Green Solution, describes marijuana strains to A.J. Tarantino (left) and Philip Gurley. Both men are officers with Colorado State Patrol.

Rae Ellen Bichell/NPR

A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now.

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“We like to know the human error and the limitations of the human opinion,” said Tara Lovestead, a chemical engineer at the National Institute of Standards and Technology in Boulder, Colo., who is working on setting standards for what a marijuana detection test might require.

It’s actually really hard for Lovestead to do this kind of research because she works in a federal lab; federally, cannabis is considered a Schedule 1 substance, “a drug with no currently accepted medical use and a high potential for abuse.” So even though Lovestead is in Colorado, getting hold of a sample for research purposes is just as hard as getting hold of heroin.

“We cannot use the stuff down the street,” she said.

Aside from being a bureaucratic mess, coming up with a standardized blood or breath test is also a really tricky chemistry problem because of the properties of the main psychoactive chemical in cannabis: delta9-tetrahydrocannabinol, or THC.

In states like Colorado, there is a THC blood test that law enforcement can use to show “presumed” impairment. If a person has more than 5 nanograms of delta-9-THC per milliliter of blood, it can be “presumed” that they are impaired, according to Colorado law.

But Lovestead and others maintain that, scientifically speaking, that cutoff doesn’t actually mean anything.

“We just don’t know whether or not that means they’re still intoxicated, or impaired or not,” she said. “There’s no quantitative measure that could stand up in a court of law.”

Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.

Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.

In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their bloodfor evidence of cannabis.

“And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days,” says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.

The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.

Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.

So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain.

Recently, some scientists have turned their attention to breath, in hopes of creating something useful.

A number of companies, like Cannabix Technologies and Hound Labs, are in the process of developing breath detection devices. Tara Lovestead is providing the data that will help relate the concentration of THC detected in the breath to what’s in the blood. Even though blood provides an incomplete and indirect inkling of what’s happening in the brain, it’s the measure law enforcement turns to as a benchmark.

That, too, is a chemist’s nightmare. THC and other cannabinoids — the chemicals that cause a high — are really squirrelly. They degrade quickly and appear only in very tiny amounts in the breath.

Luckily, Lovestead’s specialty is detecting tiny amounts of chemicals in the air. She and her colleagues have worked on methods to use tiny air samples to detect evidence of arsonburied bodies and hidden explosives. Marijuana is the next challenge.

In the future, she said, an accurate breath test would likely involve looking at a lot more than just THC — probably a whole combination of chemicals.

“One thing to look for would be metabolites — something that comes out of the breath that shows it actually went through your system,” she said. Such a test would greatly reduce the possibility that someone might test positive from inhaling secondhand smoke, she said.

In the meantime, it’s up to law enforcement officers like the ones in Chris Halsor’s class to make the call, based on circumstantial evidence and their best guess.

“The whole point of this class is to get the officers to make correct decisions,” said Halsor.

Many officers in his courses have never used marijuana — or haven’t since some exploratory puffs in high school. These officers need training, he said, to boost their confidence — “confidence that they’re making the right arrest decision and confidence that they’re letting people go who really aren’t impaired.”

The cops attending his seminar in the spring paged through Dope Magazine, chuckled at a photo of an edible called “reef jerky” and watched a video together on how to dab — heating concentrated marijuana and inhaling the vapors. In their visit to a local marijuana dispensary, they examined gold-plated blunts — hollowed-out cigars filled with marijuana.

But the real test of these officers’ ability to identify the signs of cannabis impairment faced them outside the hotel, in a parked RV that was plastered with bumper stickers.

A chemical test that reliably detects cannabis use — let alone intoxication — has been elusive.

Rae Ellen Bichell/NPR

Four volunteers for the project were inside the RV, legally getting as high as they wanted to, from a big plastic tub full of pot products.

“Good music, good company, good weed. It all goes together,” said Eugene Butler, one of the four volunteers.

Butler and the three others had never met before. They had volunteered to get high and then interact with cops to help the officers learn the signs of cannabis impairment.

“We’re going to willfully smell like pot around a bunch of cops,” said Sharica Clark, laughing.

Inside the hotel, the officers practiced roadside sobriety tests on the four volunteers — determining each time if, in real life, they would have arrested these people for a DUI.

All the volunteers had smoked a lot of pot inside the RV. But in the sobriety tests, they performed differently.

A volunteer named Christine, for example, did well on math, quickly calculating how many quarters are in $1.75. But she didn’t do well on other things, like balancing, remembering instructions and estimating time. (She was concerned about recrimination at work, and NPR agreed to use only her first name).

Christine, the officers all decided, would be a danger behind the wheel. In real life, they would have arrested her.

“Yeah, she’d be going to jail,” said Rich Armstrong, an officer with Colorado State Patrol.

But things weren’t so clear with the other volunteers. A lot of the officers had decided they wouldn’t arrest Eugene Butler or a volunteer named John (who also asked that we not use his last name); both men aced the same roadside tests Christine flunked, even though they, too, had just smoked a lot in the RV.

And when it came to Sharica Clark, the officers decided it was essentially a toss-up as to whether they would have arrested her, based on her performance on the roadside tests. Yes, her pupils were huge, and she had a tough time touching her finger to the tip of her nose while her eyes were closed. But her balance, counting and recitation of the alphabet were, as Colorado State Patrol Officer Philip Gurley put it, “spot on.”

“It was a tough one,” said Tom Davis, another officer with Colorado State Patrol.

Volunteer Sharica Clark counts 30 seconds with her eyes closed, as officers with Colorado State Patrol check her balance and counting skills after using cannabis. It was part of a simulated roadside sobriety test in the officers’ training seminar.

Rae Ellen Bichell/NPR

Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.

So, just like the THC blood test, the judgments officers make can also yield false positives and negatives.

“This is one of those subjective areas,” said Armstrong.

“It’s too subjective,” said Lovestead.

She recently published a paper in the journal Forensic Chemistry where she found the vapor pressure of THC — one of its fundamental physical properties. Lovestead believes finding and standardizing that measurement is a small but significant steptoward a more objective route for evaluating intoxicated drivers.

In the meantime, courses like Halsor’s are the best resource for officers. And at least now the class participants know what pot strains like Skunk Dawg, Hippie Chicken and Chunky Diesel actually smell like.

“Yeah,” said Gurley. “It smells like the bottom side of a rock.”

Source: Marijuana DUIs Are Still Too Subjective Say Cops. Why No BreathTest? : Shots – Health News : NPR

Walks Into a Bar… Not Ready to Go Home Joke

A guy walks into a bar and asks for a beer. He chugs it, looks into his pocket and asks for another beer. He chugs that beer, looks into his pocket and asks for another.The man does this a few more times until the bartender asks, “How come you ask for a beer, chug it, then look in your pocket?”The man says, “Because there is a picture of my wife in my pocket and I’m gonna keep drinking till she looks good enough for me to go home.”

Source: Funny Jokes | Walks Into a Bar… Not Ready to Go Home Joke | Comedy Central

Woman charged with DWI after crashing into truck near brewery

Josh Daves was standing in the gravel parking lot across from the brewery around 7:30 p.m. when he heard a loud crashing sound, he said. He looked over at his Chevy Silverado that was parked on Green Street and saw a Ford Ranger had crashed into it.

“I was hoping (the driver) was OK because that was a bad accident,” Daves said.

But when Daves ran over to his truck, he said the woman behind the wheel was screaming and seemed ready to drive away .

“I told her, ‘You don’t leave,’” Daves said. “She just slammed on the gas and drove away.”

Officer B.M. Linares responded to the scene and eventually located the vehicle on Kirksey Drive, according to a police report.

Linares arrested the driver, Ruth Ann Lyons, 54, and charged her with driving while impaired and felony possession of a controlled substance with intent to manufacture after oxycodone, hydrocodone and alprazolam were found in her vehicle, the report said.

Daves said he bought his 2014 truck in April, and it was hit by another vehicle two weeks ago. He was prepared to get the earlier incident taken care of on Friday, but the crash on Thursday made his situation even worse.

“I finally worked my way up to where I could get a nice vehicle, and this is what happens,” Daves said.

Daves estimates about $15,000 worth of damage was done to the truck, which was valued at $32,000 before the crash.

 

Daves is a brewer at Catawba Brewing Company and was working when the crash happened. He said his background in beer makes him even more upset that an allegedly impaired person got behind the wheel.

“I knew she was gone — under the influence of something,” Daves said. “It’s terrible. You should not be out driving and drinking or drugging. She could have easily hit a pedestrian. It could have been a lot worse.”

Linares also found marijuana in the vehicle, the report said. Lyons’ additional charges include simple possession of schedule VI narcotics, possession of drug paraphernalia, no operators license, safe movement violation and misdemeanor hit and run.

Lyons consented to a blood test before being transported to the magistrate’s office, where she was issued a $20,000 bond, the report said. The crash also caused Dave’s truck to hit a Jeep parked beside it.

The Operation of a Motor Vehicle Requirement for a DUI

The Operation Of A Motor Vehicle Requirement For A DUIAn essential element for a DUI conviction in Kentucky according to the Kentucky DUI statute, KRS 189A.010 (1), requires that “a person shall not operate or be in physical control of a motor vehicle anywhere in this state.” A person who is not in control of a motor vehicle simply cannot be guilty of a DUI.So for example, if an officer observes a properly parked vehicle with an intoxicated person sitting behind the wheel, with the keys in the ignition and the motor running, and the person inside sitting there just smoking and texting on their cell phone, is that behavior sufficient to meet the proof of operation to support a DUI arrest? What if the intoxicated person was asleep at the time that the officer arrived? The simple answer to both questions is it depends on the facts and whether the prosecutor can prove the intoxicated person was operating or in control of the vehicle.In order to prove operation or control of the vehicle to support a DUI arrest and subsequent conviction, the prosecutor has the burden of proving the following four factors:Whether or not the person in the vehicle was asleep or awake;Whether or not the motor is running;Location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location; andThe intent of the person behind the wheel.The first factor, whether a person is asleep or awake, is easily observed by the officer. But by itself it is not sufficient to support a DUI arrest. Courts have held that a sleeping person is not in operation of a vehicle.The second factor may be more difficult since determining whether or not a gasoline or diesel engine is running is easy but with the introduction of hybrid and electric vehicles on the roadways in recent years it does make it more difficult to determine whether or not an electric motor is running since they are mostly silent when running and designed to remain off while the vehicle is stopped. However, at least one court has held that merely starting a vehicle’s engine or motor is not an exercise of actual physical control.The third factor, the location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location, are important in determining operation. For example, when did the driver become intoxicated: before or after parking the vehicle? Was the driver discovered before any new driving could begin?The fourth factor, the intent of the person behind the wheel, is more difficult to prove and has been the subject of numerous court hearings over the years. Kentucky courts have held that sleeping drivers in properly parked vehicles could not have had any intention to drive under those circumstances. Furthermore, as a court stated, merely being awake in the driver seat of a vehicle with the engine on does not require finding of an intent to drive or it would constitute a separate factor in the determination of whether the person and the vehicle was awake or asleep.Answering the questions in the example above, a person who is sitting in the driver seat of a properly parked vehicle in which that person can comfortably smoke and text, rather than using the vehicle as a mode of imminent transportation, shows that the person did not intend to drive. In that situation the person is not in operation of the vehicle to support a DUI arrest.

Source: The Operation of a Motor Vehicle Requirement for a DUI – Kentucky DUI Defense Lawyer

Woman accused of DUI while livestreaming crash that killed sister

LOS BANOS, Calif. (KRON) — Authorities are investigating whether an 18-year-old Stockton woman live-streamed herself driving drunk Friday in Los Banos.

Obdulia Sanchez was later involved in an accident that killed her 14-year-old sister on Henry Miller Rd. around 6:40 p.m.

Sanchez is seen broadcasting herself live on Instagram as she drives down the road and raps along with the music.

The video has reportedly been pulled from social media sites, but still managed to get lots of circulation around the internet.

At times it looks like both of her hands are off the wheel as she moves the phone around to show different angles,

In one instance, a girl can be seen in the backseat.

Eventually, the video comes to a sudden end in what appears to be Sanchez losing control of the car.

Los Banos investigators aren’t confirming the filming of the live video is linked to the fatal crash, but they are investigating the possibility.

They do confirm that Friday evening Sanchez was with her 14-year-old sister, Jacqueline Sanchez, and another 14-year-old when she started to leave the roadway, over-corrected, and crashed.

Neither of the 14-year-olds were wearing a seat belt.

Both were thrown from the car and Jacqueline Sanchez died at the scene.

The other 14-year-old passenger suffered what authorities call “severe trauma” to one of her legs in the crash.

Obdulia Sanchez is charged with DUI and gross vehicular manslaughter while intoxicated.

She has not, however, been charged with using her phone while driving.

Still, the video remains as a stark reminder of the dangers of not just driving intoxicated, but distracted driving.

Woman accused of DUI while livestreaming crash that killed sister

False Positives And Other Outlandish DUI Arrests

Have you heard the one about the driver who was arrested for DUI because he had a caffeine high? Or about the state legislator who successfully argued that cough syrup and a breath spray caused a false positive DUI breathalyzer reading?auto-brewery-dui-300x169

While law enforcement officers and courts generally accept breathalyzer tests as proof that someone was driving under the influence, those tests can sometimes give false positive readings. As absurd as these stories sound, to the people wrongfully arrested for DUIs, these incidents are no laughing matter.

Betrayed by their bodies

A rare medical condition led a judge to dismiss a DUI charge against an upstate New York woman in 2015. Police pulled the woman over because she was driving on a flat tire and arrested her when a breathalyzer test revealed that she had almost four times the legal limit of 0.08 percent alcohol in her bloodstream. That’s considered life threatening, so police rushed her to the hospital.

What puzzled police, the hospital and her attorney, Joseph Marusak, was that the driver showed no symptoms of being under the influence. Plus, Marusak’s client claimed she had only four drinks over the course of six hours—not enough to leave her intoxicated.

Marusak ended up doing some investigating and eventually uncovered his client’s problem; she had auto-brewery syndrome, in which the body actually manufactures its own alcohol. Those with the disease have abnormal amounts of gastrointestinal yeast, which takes the common carbohydrates they eat and turns them into ethanol. The medical community has been aware of this condition since the early part of the 20th century.

The judge dismissed the charges against Marusak’s client, who is now on a yeast-free diet (no sugar, no alcohol and very few carbs, according to CNN).

Overzealous officers

Last December, ABC News 13 in Houston reported the story of a woman who was arrested for DUI and spent three days in jail. But Christie Lietzau claimed that the problem wasn’t that she was intoxicated, but that she was having an episode of multiple sclerosis (MS).

Christie Lietzau said she was driving her daughter to a fast food restaurant when she had an MS episode. The daughter, alarmed by her mom’s slurred speech and instability, called 911. When officers responded, they told the daughter her mother was impaired, not ill, and arrested her for DUI. Lietzau said the police didn’t give her a BAC field test, but a spokesperson for the Rosenberg Police Department said they followed all procedures.

The officers said that they drew blood and that the DUI charges stem from Lietzau being under the influence of prescription medicine. Lietzau admits to taking medication to control her MS, but says it doesn’t affect her driving ability. (There’s no word yet on how this case has been resolved.)

Prescription medicines can cause people to drive erratically, but one police officer in Statham, Georgia, has taken that a bit far, according to many locals. They allege that Officer Marc Lofton routinely arrests people who take prescription drugs—even those legally prescribed by physicians for diabetes, blood pressure and other medical conditions.

Stratham has a population of just over 2,500 people. Last fall, a group of 400 of those citizens—almost one-sixth of the town’s population—signed a petition calling for Lofton’s firing because of his allegedly overzealous actions. In November 2016, the Online Athens news site reported that a group of people “too large to fit inside the Statham City Hall without breaking fire code” attended a meeting of the City Council to demand that Officer Lofton be fired.

The angry citizens claim that Lofton is making these DUI arrests in order to boost the department’s (and the town’s) budget.

Statham Police Chief Allan Johnston has backed Lofton, although he admits that the officer needs more training in DUI. The Georgia Prosecuting Attorney’s Council, which investigated citizens’ complaints, said that the officer should take an Advanced Roadside Impaired Driving Enforcement Class (ARIDE). When questioned by reporters for CBS46, Johnston said that Lofton had taken the class when he worked for another agency but failed it. (The CBS46 reporters didn’t find a record of that training, but found that Lofton had taken—and failed—a Lidar (radar) speed measurement class.)

Officer Lofton’s accusers were further outraged by the fact that his wife was arrested for DUI in 2015 after blowing a .204 on a breathalyzer. But when her case came to court, the prosecutor dismissed the charges. He claimed that the Winder, Georgia officer who arrested her had credibility issues and that his office was dismissing many other of the officer’s DUI arrests.

Pot problem

One problem that DUI enforcement officers face is the lack of a credible test for marijuana intoxication. Many states, including Georgia, have reacted by training more officers to become Drug Recognition Experts, who learn how to detect possible drug intoxication by evaluating drivers’ behavior and reactions. The problem is some officers don’t get it right… and then they’re reluctant to admit that they may have been wrong in their assessments.

An investigative report by Atlanta 11 Alive news team found that one officer in Cobb County, T.T. Carroll, received a silver medal for making 90 DUI arrests in 2016, even though in at least three cases he apparently misread the signals.

Carroll charged Bartender Katelyn Ebner with DUI despite the fact that she passed a BAC field test and denied ever smoking marijuana. Carroll insisted that he could tell she was pot-impaired. Carroll spent the night in jail, lost her alcohol server’s permit and ended up spending thousands to clear her name. The drug tests, which police had said would prove her impairment, came back negative.

In a similar case, a college student named Princess Mbamara went to jail on Carroll’s accusation of marijuana intoxication. Her test results came back positive only for a local anesthetic that is found in anti-burn, anti-itch and similar over-the-counter medicines. Another unnamed Auburn University student had a similar experience; the prosecutor eventually dismissed the charges against the defendant, noting that the student had done fine on the field sobriety evaluation and that the blood and urine tests were negative.

Playing politics

Politics also sometimes plays a role when determining who gets charged and convicted of a DUI. In June 2016, a judge acquitted Florida Senator Terry Burton, the President Pro Tem of the Florida State Senate, of the charges of DUI against him. The Scott County judge decided that Senator Terry Burton’s BAC reading of 0.10 at the time of his arrest was a false positive. He accepted Burton’s explanation that the reading was the result of his taking cough syrup and using breath spray.

Burton had hit a traffic sign around 10 p.m. on the evening of May 14, 2016. He said that he had a coughing spell after the airbags deployed and drank some Nyquil because he had nothing else in the car. He then used the breath spray because his mouth was dry.

Burton admitted to drinking alcohol earlier in the day but insisted that he had stopped drinking in the afternoon and was not under the influence when arrested. The judge ruled that the BAC reading was a false positive and dismissed the charges against Burton.

Source: False Positives And Other Outlandish DUI Arrests — Los Angeles Criminal Defense Attorney Blog — July 19, 2017

A bear walks into a bar…

A bear walks into a bar and asks the bartender for a beer. The bartender says, “Sorry, we don’t give beer to bears in bars.”The bear replies, “If you don’t give me a beer, I’ll eat that lady over there.”The bartender says, “Go ahead.”So the bear eats the lady and asks for a beer. The bartender says, “Sorry, we don’t give beer to bears on drugs.””What do mean,” asks the bear. “I’m not on drugs.””Yes, you are, that was the bar bitch you ate.”

Source: Funny Jokes | Walks Into a Bar… Bears on Drugs Joke | Comedy Central