ALSO INSIDE: Solo & Small Firm Conference • PRC Annual Report • Day at the Capitol Volume 90 — No. 3 — March 2019 CRIMINAL Law contents March 2019 • Vol. 90 • No. 3 THEME: CRIMINAL LAW Editor: Aaron Bundy FEATURES PLUS 6 45 Words: Criminal Regulation of Marijuana 44 Legislative News: Reading Day Recap, Possession in Oklahoma After SQ 788 Day at the Capitol March 12 BY BRIAN TED JONES BY ANGELA AILLES BAHM 12 Facets of Expungement of Criminal Records 48 Solo & Small Firm Conference in Oklahoma BY JIM CALLOWAY BY ORVAL EDWIN JONES 56 Professional Responsibility Commission 18 Managing Expectations in Criminal Tax Annual Report Defense – Yours and Your Client’s BY JOHN D. RUSSELL AND ANDREW J. HOFLAND 24 The iPhone, the Speaker and Us: Constitutional Expectations in the Smart Age BY MBILIKE MWAFULIRWA 30 HOLT V. HObbS: Prisoner Religious Freedom Versus Prison Safety BY JOHN P. CANNON AND LEANN FARHA 36 Not So Hypothetical After All: Addressing the Remaining Unanswered Questions About Self-Driving Cars BY SPENCER C. PIttmAN AND MBILIKE MWAFULIRWA PAGE 44 – Legislative News DEPARTMENTS 4 From the President 64 From the Executive Director 66 Law Practice Tips 69 Oklahoma Bar Foundation News 72 Young Lawyers Division 74 For Your Information 75 Bench and Bar Briefs 76 In Memoriam 78 Editorial Calendar 81 What’s Online PAGE 48 – Solo Conference 88 The Back Page FROM THE PRESIDENT It’s a Matter of Attitude By Charles W. Chesnut ECENTLY, I CALLED MY ELECTRICIAN’S SHOP. us. And so how do we cope? We feel we RI wanted to ask him to come and fix a lighting prob- have to voice the problem to get it out of lem I was having at the office. It was a bitterly cold day – us, to expose it to air, so we complain. one of those days where the low was about 14 degrees. We complain about having too much His mother, one of my clients, answered the telephone. work, not enough work, the demands She is 93 years old. “Marie,” I said, “you’re up and at ‘em placed upon us, the way we are treated early on this cold morning.” “It’s a matter of attitude,” by judges in the courtroom or by other she responded. “The way I look at it, I’m lucky at this age attorneys, too many telephone calls, not to be able to get up and go to work.” enough telephone calls, the overhead we Pretty amazing, really. Ninety-three years old. Fourteen are faced with, the deadlines imposed degrees outside, and she’s lucky to be able to get up and upon us, the volume of emails we go to work. receive. You name it, we complain about I’ve been reading some of the Stoic philosophers lately. it. It’s as if we take a certain amount of I’m not sure exactly how I got started on them. I think I’ve pride in complaining about our circum- enjoyed many of the writings of Marcus Aurelius. I went stances in life – even though much of on from there to read some of the works of other Stoics. it we have created ourselves through According to the Stoics, the path to happiness for decisions we have made, especially if we humans, as social beings, is found in accepting the didn’t have to take the case to begin with. moment as it presents itself, by not allowing oneself to And yet much of these complaints be controlled by the desire for pleasure or fear of pain, are just opinions about it. That’s it. Just by using one’s mind to understand the world and to do opinions – and probably not very consid- one’s part in nature’s plan and by working together and ered ones at that. To change your expe- treating others fairly and justly. rience, change your opinion. Change One of the many things that Marcus Aurelius writes the way you look at it. It may take some is, “To change your experience, change your opinion. work on your part to be creative enough Stop telling yourself that you’re a victim and the pain to find another way of looking at it – to goes away.” “Everything is opinion.” change your opinion of it. But when So how does this relate to us as you are able to do that, it is liberating. attorneys? Wayne Dyer, a famous writer and I think we are extremely fortunate motivational speaker, said, “When you to be able to practice law. We have change the way you look at things, the the right to choose the type of law things you look at change.” So try to we practice, the clients we repre- change the way you look at something, sent and the opportunity to help and see how it changes your life. people solve very difficult problems You could be 93, it’s 14 degrees out- in their lives that they are not able side and feel lucky to be able to get up to solve for themselves. Most of us and go to work. That’s her opinion. It have the right to choose whether to could be ours too. take a case or not. Two suggestions for books to read: And yet it’s a tough business. Meditations by Marcus Aurelius and 10% Long hours. Difficult problems. Happier by ABC newscaster Dan Harris. President Chesnut practices in Miami. Difficult people. Lots of stress from [email protected] 918-542-1845 deadlines and work crowding in on 4 | MARCH 2019 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2019 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 90 — No. 3 — March 2019 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. 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Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Subscriptions $60 per year that includes the Oklahoma Bar Journal Board of Bar Examiners 405-416-7075 Court Issue supplement delivered electronically semimonthly. Law Oklahoma Bar Foundation 405-416-7070 students registered with the OBA and senior members may subscribe for $30; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL MARCH 2019 | 5 CRIMINAL LAW 45 Words: Criminal Regulation of Marijuana Possession in Oklahoma After SQ 788 By Brian Ted Jones EFORE THE PASSAGE OF INITIATIVE PETITION 412, State Question 788 (788), the Bregulation of marijuana in Oklahoma was confined almost exclusively to the criminal courts. Possession by a marijuana user was illegal and prosecuted as a misdemeanor.1 Possession with intent to distribute by a marijuana seller was illegal and prosecuted as a felony.2 Production and trafficking in marijuana by a large-scale marijuana provider distributing in bulk to retail marijuana sellers was likewise illegal and prosecuted as a major felony.3 In fact, the only non- criminal form of marijuana regulation under Oklahoma law prior to 788 was the state’s imple- mentation of federal authorities for possession of marijuana as a Schedule I narcotic.4 In the years immediately The passage of 788 turns this on 3 ounces of marijuana on their preceding the passage of 788, its head.