Tuesday, January 16, 2018

What are the Rules About Marijuana and Driving in California?

Section 23152 of the California Vehicle Code says that driving under the influence of drugs and / or alcohol is a misdemeanor. Everyone knows that legal limit for alcohol is 0.08% -- if prosecutors can prove that your blood alcohol concentration was greater than 0.08% at the time of driving, you are guilty of DUI.

Marijuana is a lot more complicated than alcohol, though. Even though adults over 21 may now legally grow, use and possess marijuana in California, it is still illegal to operate a motor vehicle (a car, a boat, a golf cart, a moped...anything with a motor) while you are "impaired" by cannabis.

Unlike alcohol, there is no magic number to objectively determine whether or not someone is too stoned to legally drive. To be convicted of driving under the influence of marijuana, the prosecutor must prove that you operated a vehicle while you were in such a condition that you could not exercise the skill and care of an ordinary, sober driver (whatever that means).

If you are stopped by police and an officer suspects that you've been smoking, he will begin the standard investigative procedures: he will ask you a series of questions about where you're coming from and where you're going. He'll ask if you're under the care of a doctor of if you've had any recent surgeries. He'll ask when you slept last and whether or not there is anything mechanically wrong with your car. The officer also will probably invite you to participate in a series of field sobriety tests (walk a line, touch your nose, stand on one foot, etc.). You are not legally required to take these tests. You'll be arrested either way, so I'd advise that you provide as little evidence as possible to be used against you later in court. You should politely decline to play the roadside Olympics. After you are arrested, you must provide a blood sample, though.

To make their case against you in court, the DA will introduce evidence that were driving poorly before you were pulled over. A police officer will testify that he stopped you because you were driving too slowly, you were drifting within your lane, you made an unsafe lane change, etc. The officer will testify that you "appeared disoriented" and "had difficulty following instructions". He will probably also testify about the smell of burnt cannabis emitted from your breath and from the interior of your vehicle. If you agreed to perform field sobriety tests, the officer will testify that you failed them all miserably, even if you feel that you nailed them. Based on the totality of his observations, the officer will testify, he formed the opinion that you were dangerously impaired by marijuana and that you could not safely operate a vehicle.

The DA will also use your blood test results to build their case against you. Your blood test will give two important numbers: your levels THC metabolites (also called "carboxy-THC", or "COOH-THC"), and your levels of active THC (also called "delta-9-THC"). THC metabolites remain in your blood system for weeks after your last usage. They are not psychoactive and are not indicative of current impairment. They only prove that you have consumed marijuana some time within the past several weeks. This number is not relevant to determining whether or not you were dangerously impaired at the time of driving, but it may be relevant to demonstrate that you have a high tolerance for the drug.

Your delta-9-THC numbers are slightly more valuable in determining your current level of impairment. Delta-9-THC is the chemical that is CURRENTLY active in your bloodstream. Your delta-9-THC concentration is still not a completely reliable way to determine a driver's degree of impairment, though. Since cannabis affects users so differently, there is not a strong correlation between a person's delta-9-THC levels and his or her actual impairment. A relatively inexperienced marijuana user might be very impaired at a given THC level, where a more experienced smoker might barely feel any effect at the same blood-THC concentration. Consider also that indica-dominant strains might affect a user differently than sativa-dominant strains, and that standard field sobriety tests are designed to detect alcohol impairment, not cannabis impairment. Most "experts" will testify that a driver is more likely to be involved in a collision when his or her active THC level is greater than 5 ng/ml, but this is controversial.

Police and prosecutors are aggressively working to crack down on "drugged driving", including driving under the influence of legal drugs (marijuana, prescription drugs, sleep aids, etc.). The Orange County District Attorney's Office has several deputy prosecutors who are specially trained and specifically assigned to process DUID cases full-time.

If you or a loved one has questions about DUI or driving under the influence of drugs in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Fullerton DUI Lawyer

Wednesday, January 10, 2018

What Kind of Lawyer Do I Need for a Restraining Order?

If you're seeking the protection of a restraining order, or if you've been served with one, you should consider retaining a qualified, local attorney to assist you throughout the process. Having the right lawyer by your side will significantly increase your chances of success. An experienced attorney will understand the rules of evidence and the legal issues at stake, so that you can craft a compelling argument and present your case in the most favorable light possible.

But what kind of lawyer should you be looking for? There are several different types of restraining orders in California. A restraining order may be issued based on allegations of domestic violence, civil harassment, workplace violence, elder abuse or gun violence. Depending on the type of order requested, petitions may be heard in family court or in civil court. And depending on which court hears the case, the rules of evidence will vary. There might also be potentially overlapping criminal issues when a restraining order petition is based on some alleged criminal misconduct.

Very few lawyers in California focus specifically on restraining orders. The state bar doesn't even offer a certification for "Restraining Order Specialist", as they do for some other specific fields of law. Most "restraining order lawyers" are actually experts in some other, related field. That could be family law, criminal defense, or general civil litigation. But that doesn't mean that every "general practice" civil lawyer is well-versed in the law regarding restraining orders. I'm often surprised to see very competent, well-respected attorneys bumble their way through restraining order hearings because they're just not experienced in the unique rules and procedures that apply in restraining order court. Unfortunately, some great lawyers just don't understand the important distinctions between a domestic violence restraining order and, say, a civil harassment restraining order. Hiring a great attorney can backfire if he or she isn't the right attorney.

If you have questions about restraining orders in California, you should resist the impulse to ask your lawyer neighbor or some family friend who specializes in construction defect law. He or she might be very well-versed in some other legal specialty, but completely lost in a restraining order hearing. Hiring an attorney simply because you know him isn't always a smart move.

You should also resist the impulse to hire the most expensive or well-known attorney you can think of. Again, that person might be the world's most successful worker's comp lawyer, but if he doesn't have experience in restraining order court, then he's probably not right for you.

Our firm has extensive experience with all types of restraining orders in California. We have successfully represented petitioners and respondents on both sides of these issues throughout Orange County, Los Angeles and Riverside. We understand the rules of evidence and how to present your story effectively so that you can walk away with the best results possible.

If you or a loved one has questions about a restraining order in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Wednesday, November 22, 2017

Fullerton Police Step Up DUI / Traffic Enforcement

Fullerton Police recently announced that the department has been awarded a $400,000 grant from the California Office of Traffic Safety. The funds will be used to conduct DUI checkpoints and to fund additional saturation patrols specifically targeting impaired drivers.

Police also announced that they plan to use grant money to compile "DUI Hotsheets" -- lists of DUI offenders with suspended or revoked licenses -- as part of their "court sting" operations. I actually witnessed a court sting in practice this morning. I was walking out of the misdemeanor pre-trial department (N-9) of the Fullerton Courthouse. I recognized a Fullerton Police Officer hanging out in the hallway, dressed in street clothes. The officer was holding a stack of papers. The papers contained mugshots and case notes. This cop was waiting for someone with a suspended license to walk out of court. If the suspect attempted to drive away from the courthouse, the FPD would immediately stop the driver and impound his car. This should go without saying, but DO NOT DRIVE TO COURT WITH A SUSPENDED LICENSE.

Downtown Fullerton is always a hot spot for DUI enforcement, and holiday weekends are especially busy for local police. Now that the Fullerton PD has a some grant money to burn on traffic enforcement, expect an especially heavy police presence on patrol for impaired drivers this weekend. Don't say I didn't warn you.

If you or a loved one has questions about a DUI case in Fullerton, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Fullerton DUI Lawyer

Tuesday, October 17, 2017

How to Apply for a California Cannabis License: Start Preparing Today

California plans to begin issuing licenses to the cannabis industry on Monday, January 1, 2018. Applications should be available to the public by November or December, 2017. Specific state licenses will govern virtually every aspect of the cannabis market, from seed to consumption, including cultivation, manufacture of concentrates, transportation, distribution, operation of testing labs, and retail sales.

Since the California Bureau of Cannabis Control (CalCannabis) still hasn't published the new regulations, we can only speculate about the "nuts & bolts" of how the system will operate. A few details have recently been released, though. Those details give us some clues about how prospective cannabis entrepreneurs can start getting their ducks in a row today so that they're well-positioned when the application system goes live.

If you're interested in getting involved with California's legal cannabis industry, the first step is to decide on a specific product or service you plan to offer. As mentioned above, each stage of production and distribution will require its own specific license. There will be restrictions on how many different types of licenses any person or entity can control, and how many different licensees may operate on a single lot or parcel of land. If you want to grow cannabis indoors on a lot smaller than 500 square feet, there will be a specific license for that. If you want to grow outdoors on a lot larger than 10,000 square feet but smaller than an acre, there will be a specific license for that, too.

Once you settle on a specific product or service that you plan to offer, you'll need to form a business plan, including your ownership structure and financing. Starting in 2018, California will begin allowing marijuana businesses to operate on a for-profit basis, rather than limiting them to non-profit mutual benefit corporations. For the first time, you may choose to operate a canna-business as a sole proprietorship, an LLC, a partnership or a corporation. The ownership / financing structure that you choose may have significant implications for your license application. For example, you may be required to disclose personal details of your financial interest holders, and individuals with serious criminal convictions may be disqualified from holding more than a 20% interest in some marijuana businesses.

The next major hurdle in the application process will be finding a local jurisdiction (a city or an unincorporated part of a county) that actually authorizes your commercial cannabis activity. The state will not process any applications without a copy of a valid local license, permit or other authorization from the jurisdiction where the business plans to operate. As of today, very few municipalities in Southern California permit new cannabis-related businesses to open their doors. Some towns have lax enforcement, some allow a handful of grandfathered locations, and some lack the resources to shut down the illegal dispensaries and grow houses that operate in violation of local ordinances. If you want to apply for a state license, though, you'll need explicit local approval from your jurisdiction. Before than can happen, more cities in Southern California will have to update their zoning laws to permit these types of businesses.

Once you have approval from your local city, then we can complete the application process according to the regulations that will govern your specific niche of the industry. This may include obtaining permits from the California State Water Resources Control Board, applying for a seller's permit, registering as an employer with the Employment Development Department, posting surety bonds, etc.

As I see it, the biggest impediment to starting a new canna-business in Southern California will be the lack of local jurisdictions that expressly authorize them to operate. You can't start running your business until you have a valid state license, and you can't get a state license until you have approval from your city, and no almost no city in Southern California will approve you (as of today). There have been a lot of rumors about which jurisdiction might be the next to revamp their land use regulations, but very little action from city councils and planning commissions.

If you're serious about forming a marijuana-related business in Southern California, I would encourage you to speak with your local representatives on the city council and your local planning commission. Attend public hearings and comment sessions. Write letters, circulate petitions, support candidates who will promote commonsense reforms and oppose the dinosaurs who still believe in "reefer madness" ("But won't somebody think of the children?", "Not in my backyard!", etc.).

If you have questions about getting involved with California's legal cannabis industry, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Cannabis Lawyer

Thursday, October 12, 2017

Driving Under the Influence of Drugs in Orange County

The Orange County District Attorney is aggressively cracking down on cases involving driving under the influence of drugs (DUID). They're even publishing new videos on their Facebook page every day this week to raise awareness of the issue.

There's a lot of bad information out there regarding DUID cases in California. Some of my clients are surprised to learn that they can be arrested for driving under the influence of any drug or combination of drugs that affect their ability to drive a car safely. That includes legal drugs, illegal drugs, prescription drugs, medical marijuana, chemotherapy drugs, even NyQuil.

Everyone knows that the "magic number" with alcohol is 0.08%. If you drive a car while your blood alcohol concentration is 0.08% or greater, you are guilty of DUI. With other drugs, though, there is no clearly defined limit in California that tells us how "impaired" is too impaired to drive. To be guilty of driving under the influence of drugs, prosecutors must prove that you were intoxicated to such a degree that you could not operate a vehicle with the skill and care of a normal, sober driver. That can be complicated.

If you are arrested on suspicion of drunk driving, you will be given the choice of either submitting to a blood test or a breath test. If officers suspect that you are impaired by drugs, though, you must give a blood sample (a breath test will not detect drugs other than alcohol). The Orange County Crime Lab will screen your blood sample for 5 drugs: alcohol, THC (both active delta-9 THC and its metabolites), opiates, cocaine, amphetamine and benzodiazepines (prescription drugs like Xanax). The presence of one or more of these drugs, though, does not necessarily prove that you are dangerously impaired or guilty of a DUI. Many drugs have a safe, therapeutic application. Someone who suffers from ADD, for example, might be a safer, more attentive driver after he takes his Adderall. The fact that he tests positive for amphetamine, then, does not prove that he is dangerously impaired by drugs.

Marijuana is an especially tricky one. Most people have heard that THC is detectable in the blood for weeks after use. This is only partly true. When you smoke weed, delta-9 THC is the chemical that actually causes you to feel "high". After you consume delta-9 THC, your body metabolizes the drug and produces a chemical called "carboxy THC" (COOH-THC). Carboxy THC has no psychoactive effect, but it may remain traceable for days or weeks. Carboxy THC, then, may be evidence of recent marijuana use, but it means nothing if we're trying to determine whether or not a subject is impaired at the moment. When the crime lab analyzes your blood sample, their report will show your levels of both delta-9 THC (the stuff that is currently making you high), and COOH-THC (evidence of past use). In some cases, high levels of COOH-THC can actually support your defense. If you are an experienced user, you might have a high tolerance for the drug. In that case, even high levels of active delta-9 THC might not necessarily prove that you were dangerously stoned at the time of driving.

If you or a loved one has questions about driving under the influence of drugs in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County DUI Lawyer

Tuesday, August 29, 2017

Religious Use of Marijuana

Update 1/23/18: Laguna Beach Police arrested Lucas Dichiara today on suspicion of operating an unlicensed marijuana dispensary under the guise of "church". Bad idea.  

There is a pervasive and persistent myth that, somehow, claiming "religious use" is a valid, legal defense to marijuana charges. It is not.

It's frustrating to see decent people taking bad advice and getting themselves arrested. It's especially frustrating in a place like California, where marijuana is legal. As of today (8/29/17), California allows cultivation and personal possession for recreational and medical use. If you follow some simple rules, you can even sell it. Unfortunately, some shady attorneys, charlatans and various non-attorney posers have been spreading the myth that "rules don't apply to you if you simply pretend that it's your religion." This is, of course, total nonsense. As a real attorney, I would strongly discourage anyone from relying on this argument.

Just think about it: if anyone could successfully disregard the law by simply claiming that XYZ was part of their "religion", what would stop them from founding the Church of Child Pornography? or the Church of Bank Robbery?

Most of the confusion surrounds a pair of federal laws, the Religious Freedom Restoration Act and the Religious Land Use and Incarcerated Persons Act. These laws prohibit the federal government from taking any action that "substantially burdens" the free exercise of religion unless authorities can show some compelling interest in doing so. The RLUIPA further prohibits local authorities from imposing land use restrictions that interfere with the free exercise of religion. Some advocates have argued that, taken together, these federal laws provide carte blanche to ignore local zoning laws regarding commercial marijuana activity as long as they call their dispensary a "church".

Courts have consistently shot these arguments down. Instead, they have affirmed the power of local zoning authorities to regulate commercial marijuana activity, regardless of whether or not litigants claim that cannabis is a "sacrament". Their reasoning has turned on a couple key points. Keep in the mind that no court has ever ruled that religion is an absolute defense to anything. The state can always "interfere with the practice of religion" if the regulation is narrowly tailored to address some compelling government interest. In Mooney v. Lynch (2016), the 9th Circuit Court of Appeals recently denied a challenge from the Oklevueha Native American Church. In that case, a "church" sued the federal government, claiming that laws against marijuana interfered with the free exercise of their religion. Judges disagreed because, "nothing in the record demonstrated that a prohibition on cannabis forced the plaintiffs to choose between obedience to their religion and criminal sanction, such that they were being coerced to act contrary to their religious beliefs."

To date, nobody has ever convinced a federal judge that laws against marijuana actually impose a "substantial burden" on the exercise of their religion. There have been a handful of cases in which native american churches have won lawsuits against the federal government, but those cases turned on technical, procedural issues. The courts did not actually determine that native american religious practices trump federal drug laws, and the rulings do not affect other litigants who were not parties to those cases.

As I mentioned above, though, there are legal ways to sell marijuana in California -- but claiming that cannabis is a "sacrament" is not your best defense strategy. If you or a loved one has questions about forming a marijuana dispensary in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Fullerton Marijuana Lawyer

Thursday, August 24, 2017

Drunk in Public on Catalina Island

According to the Los Angeles Sheriff's Department, deputies arrested several individuals on suspicion of being drunk in public this month. In my experience, this is probably the most commonly charged offense on the island, other than minor fishing violations.

To be convicted for being drunk in public under PC 647(f), the prosecutor must prove that you were so drunk that you could not reasonably care for your own safety, or that you posed a danger to people around you. The determine whether or not you were "dangerously" drunk, the court will consider the totality of the circumstances -- the condition in which you were found, how / why you attracted attention from the police, objective and subjective observations of the arresting officers, your own statements, statements from other witnesses, audio / video recordings of the incident, etc.

There is no magic number that clearly delineates "pretty drunk" from "criminally drunk". The decision of whether or not to make an arrest is generally left to the officer's discretion. You have a right to take a breath test if you are arrested for being drunk in public, but police are not required to administer one unless you demand it. If you decide to demand a breath test, that number will be used against you in court.

If you are arrested for being drunk in public in Avalon, deputies will take you to the tiny jail on Sumner street, attached to the local courthouse. You will be held for several hours and released in the morning. Being cooperative during this process will definitely speed up your release. Deputies will also make a note of your attitude in the reports that they prepare. If your arrest report shows that you were cooperative, that fact will go a long way when your attorney attempts to negotiate a reduced charge or a dismissal in court.

When you are released from custody, the deputies will give you a "notice to appear" in court at some future date. Regardless of what the deputies told you, your case cannot simply be resolved in Long Beach. All misdemeanors arising on Catalina Island are heard at the Catalina courthouse.

If you retain a local attorney, you do not need to travel back to the island for your court date -- your attorney can go for you. Your lawyer will gather copies of the police reports and any other evidence (photos, videos, etc.), enter a "not guilty" plea, and schedule a series of future court dates to come back and discuss the case with prosecutors.

If the prosecutor recognizes that the evidence in your case is weak, you have a clean criminal record and you were cooperative during the arrest, they might make an offer that's too good to refuse. A "good offer" might include a reduced charge or a complete dismissal. If the evidence is strong, or if you have a history of alcohol-related offenses, or if your report indicates that you were uncooperative, the DA's offers get less generous. "Drunk in Public" is a misdemeanor, so penalties may include probation, fines, or even jail.

Our office has extensive experience defending against all types of cases that arise on Catalina Island, including drunk in public. We offer competitive rates and affordable payments, and we never charge clients for our travel expenses.

If you or a loved one has been cited or arrested while visiting Catalina, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Catalina Island Lawyer