Thursday, August 20, 2015

How to Clear an Old Warrant in California, part 2

In my previous post, I described the process of adding a case onto the court's calendar to clear up an old warrant if you've previously failed to appear.  In this post, I want to discuss a little more about what happens when there has been a long delay between the commission of the crime and a defendant's appearance in court.

My last post briefly mentioned the "Statute of Limitiations" (or "SoL" for short).  I mentioned that the SoL will not usually help you if you have an outstanding warrant.  The SoL refers to the time between the commission of the crime and the filing of charges.  The SoL for most misdemeanors in California is one year.  This means that the DA must file a criminal complaint within one year of the crime or else they will be barred from doing so.

Often, the DA will file criminal charges against a defendant within the SoL, but the defendant fails to appear in court.  When the defendant misses his court date, a warrant will be issued and it will remain in effect until it is recalled by a judge.  If the defendant is captured and brought to court several years from now, he may not claim the protections of the SoL because the charges were filed within the statutory period (within one year of the date on which the crime was committed), even if the defendant's first court appearance did not happen within that time.

Even if the SoL isn't a winning argument in your case, you might have other defenses that arise when there has been a long delay.  The US Constitution assures the right to a speedy trial.  If you have had an arrest warrant outstanding for a long period of time, you might have an argument to dismiss the case based on a violation of this constitutional right.  This is called a Serna motion.

In a Serna hearing, the judge is weighing several different considerations:  How long has the delay been?  Why did the delay occur?  Has evidence been lost or destroyed?  Have witnesses become unavailable to testify?  Is it still possible to conduct a fair trial?

The big difference between an SoL argument and a speedy trial argument is the time period that we're focused on.  Remember, when we're talking about the SoL, we're talking about the date of the crime until the date on which charges are filed.  When we're talking about speedy trial rights, we're talking about the period of time between the filing of charges and the defendant's first court appearance.

Generally, if more than one year has elapsed between the filing of charges and the defendant's first court appearance, then the burden falls on the DA to justify the delay.  The DA might explain why the delay is the defendant's fault and not the state's fault -- maybe the defendant signed a "promise to appear" and then failed to appear.

If the DA can prove that the defendant had actual notice of his original court date but never showed up, then the judge will want to hear a very compelling argument as to why the defendant should benefit from his own broken promise.  Maybe the defendant can prove that his original court date was rescheduled or relocated without proper notice.  Maybe it was filed under the wrong name.

Even if the delay is entirely the defendant's fault, a judge might agree to grant a Serna motion and dismiss a case when it can be proven that evidence is no longer available and that the defendant would be prejudiced by standing trial today on such an old case.

If you or a loved one has an old warrant in California, call our office for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Monday, August 17, 2015

How to Clear an Old Arrest Warrant in California

An outstanding arrest warrant will basically ruin your life until it is addressed.  Your old warrant will not simply go away on its own.  Luckily, you've already taken the first step toward fixing the problem -- you Googled it and you found this blog post.  Now, let's take the next steps to clear up this old headache for good.

Arrest warrants can be issued for a number of different reasons.  The most common situation we see arises when a defendant has failed to appear at a scheduled court date.  Maybe it was your fault -- you knew about it, but you were afraid to miss work, you couldn't get a ride to court, or you had trouble arranging childcare for your kids.  Maybe it wasn't your fault -- someone else used your ID when he was arrested, or the DA mailed a "Notice to Appear" to a bad address.  Either way, the judge issued a bench warrant when you failed to appear in court.  Now you're a fugitive.  You can be arrested at your home, your workplace, or wherever the police happen to find you.

That's what we want to avoid.

To clear this warrant, your case must be added onto the court's calendar as soon as possible.  Different courts have different procedures for requesting calendar add-ons.  It's helpful to have a local attorney who understands the quickest, easiest way to get your case scheduled without making unnecessary appearances.

Once your case has been added onto the court's calendar, you or your attorney must appear before a judge to request that the warrant be "recalled".  Depending on the type of charge, your attorney might be able to do this without you being personally present.

Often, the judge will be unhappy that you've previously failed to appear for a scheduled hearing.  It costs the county time and money to issue warrants when defendants fail to appear.  The judge may require you to reimburse the county for those expenses.  He or she might also impose bail if you were previously free on your "own recognizance" ("O.R.").

When you (or your attorney) is standing before the judge and asking to recall your warrant, the judge is trying to determine whether or not you should be considered a "flight risk".  If a judge decides that you are likely to disappear again, then your bail could be set very high.  To avoid this, it's important to have your warrant addressed as quickly as possible after it's issued.  If you have an outstanding warrant for 10 years before you make any effort to address it, the judge will not have a lot of sympathy for you.  If, on the other hand, you show up in court very soon after learning about your warrant, the judge might be willing to show some lenience.

As mentioned above, your warrant will not simply go away by ignoring it.  The statute of limitations does not apply if you have an outstanding warrant.  The "statute of limitations" ("SoL" for short), refers to the time between the commission of the crime and the filing of charges.  It does NOT refer to the time between the commission of the crime and your arrest / appearance in court.  If the DA has filed charges against you in a timely manner but you are not captured for several years, you will not be able to claim the protections of the SoL.  You might have other defenses, but the SoL is irrelevant in this situation.

If you or a loved one has an outstanding warrant in California, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Thursday, August 13, 2015

Gov. Brown Signs Bill Affirming the Right to Film Police in California

As I've previously written here, Californians have the legal right to film police while officers perform their official duties in public as long as the citizen does not obstruct or interfere with the performance of those duties.

On Tuesday, Gov. Brown signed SB-411 into law, which will amend the Penal Code to specifically affirm the right of citizens to film police.  Sections 69 and 148(a)(1) of the code will be amended to include the following language: "The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of [this code], nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person."

The law was drafted by the California Public Defenders' Association and supported by the ACLU and other civil rights groups.  There was no organized opposition.  Practically, the change will have no legal effect.  The act of filming police in public has always been legal in California (in the sense that it has never been illegal).  This bill merely clarifies and restates existing law.

If you have questions about your rights during encounters with police, please call our office for a free consultation.  (714) 505-2468.  Ask for John.  

Thanks for reading.  

Monday, July 20, 2015

Brag Board: 7/20/15

My winning streak with restraining orders is alive and well.  Looking back over my records, I believe that's about 9 consecutive wins.  It just goes to show that coming to court properly prepared (and properly represented by competent counsel), can make all the difference when you are seeking or defending against a restraining order.

On Friday, we litigated S.N. v. A.S. in Orange County Family Court.  My client's ex-girlfriend accused him of abuse that allegedly occurred during the course of their relationship.  My client followed my advice and stuck to his proverbial guns.  His ex-girlfriend's story fell apart under cross-examination and her requested order was denied.  We were able to save my client's job, his reputation and his freedom.

Of course, every case is unique.  Past performance is no guarantee of future success.  I cannot promise that your case will have the same outcome.  Judges in restraining order cases can be notoriously arbitrary and sometimes their rulings come more from their "gut" than from any established case law.  It's helpful to understand how judges tick and what sorts of arguments they tend to find persuasive -- that's where I step in.  I know how to boil your case down to the clearest and most concise summary of the important issues, without the filler that bores and annoys judges.  I've found (especially in restraining order cases), that both sides sincerely believe that they are right.  The "winner" in restraining order cases is usually whichever party can best articulate their version of the important facts.

Here are some helpful tips if you want to LOSE a restraining order case:

-Tell a rambling story with no discernible beginning, middle or end.  

-Come to court unprepared (no attorney, no documentation, no witnesses and no understanding of how the process works).

-Bring witnesses and instruct them to lie.  They will be separated during each of their testimony.  They will be cross-examined by the opposing counsel and by the judge.  If their stories are obviously fabricated, their lies will be exposed.

-Bury your good arguments under a bunch of irrelevant "filler".  "Filler" includes anything other than the facts that are actually at issue.  As I mentioned in my 3-part series on restraining orders, the judge does not care if the other party is a jerk, a liar, a cheater, a bitch, a pervert, or even a Red Sox fan.  The judge only cares about whether or not the petitioner can prove by clear and convincing evidence that harassment has occurred.  If the petitioner can prove harassment, then the petitioner wins.  If the petitioner cannot prove harassment, then the petitioner loses.  It's that simple.

If you or a loved one has questions about restraining orders in California, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Tuesday, June 16, 2015

I Was Arrested for Cultivation, But I Have a Medical Marijuana Card

Qualified patients in California may possess, cultivate, transport and use marijuana for medical purposes.  State laws provide some degree of protection against criminal prosecution if the patient can prove that he or she possesses a valid recommendation from a doctor and that the quantity of marijuana possessed is reasonably related to his or her medical needs.

Keep in mind, however, that marijuana remains illegal in California.

The protections described above may establish a defense against criminal charges after you have been arrested, but don't expect police to simply "look the other way" if they catch you cultivating, possessing, transporting or using marijuana.  Remember, a valid medical marijuana recommendation is a defense in court, not an immunity against being arrested on suspicion of some marijuana-related crime.

Police don't have the time, training or interest in determining the validity of your recommendation.  They don't understand the nuances of California's complicated medical marijuana laws (and they aren't expected to).  They know how to make arrests and write reports.

Even if you are within your rights and you only cultivate a small amount of marijuana for personal consumption, you can still be arrested.  Your house can be searched and you can be prosecuted for anything that is discovered during your arrest -- this includes illegal guns, drugs, stolen property / utilities, etc.  You will have to post bail, hire an attorney and appear in court.  Put simply, you will be treated like a criminal.

Once you appear in court, you and your attorney will have an opportunity to present a defense based on your status as a qualified patient.  This may include calling your doctor as a witness to establish the fact that your recommendation is legit and valid.  Of course, a recommendation is only as good as the doctor who is willing to come to court and testify that he or she actually wrote it.  If the doctor is M.I.A., you could be S.O.L.

Presenting a medical marijuana defense gets complicated if you are accused of possession for sale, manufacturing concentrates or possessing other contraband.  You may have a defense based on an unlawful search, mishandled evidence, improper police work or by proving that you operate a "collective", even if the collective itself is unlicensed.

If you or a loved one is accused of any marijuana-related crime, regardless of whether or not you are a "qualified patient", call our firm for a free consultation.  We know how to protect your rights and your criminal record.  (714) 505-2468.  Ask for John.

Thanks for reading.

Monday, June 1, 2015

Brag Board 6/1/15

It's been a while since I've posted any fresh content here and I apologize for the delay.  Since we last spoke, I've had a handful of success stories that I wanted to share, so here they are:

-People v. N.B. (Riverside):  My client was accused of attempting to kidnap a little girl in Moreno Valley.  We were able to prove that the victim had misidentified the suspect -- my client was nowhere near the scene.  Case dismissed.

-K.H. v. S.G., and C.F. v. S.G. (Orange County):  Two separate people were seeking restraining orders against my client.  We successfully mediated one case without the issuance of an order.  The other case was dismissed.  My client walked away with no restraining orders against her.

-People v. R.P. (Pomona):  Jury trial for a client who was accused of molesting his niece over a period of 10 years.  Jury was not convinced beyond a reasonable doubt that the allegations were true.  Hung jury / mistrial.

-People v. G.B. (Orange County):  My client drunkenly wandered into someone's house and refused to leave.  Case dismissed upon completion of an alcohol class.

That's sample of my current caseload.  I hope to have some more success stories posted here soon.  Until then, thanks for reading.

Wednesday, March 25, 2015

Police Took My Medical Marijuana. How Can I Get it Back?

Marijuana remains illegal in California, but "qualified patients" may have defenses to certain marijuana-related crimes if they can prove that their doctor has recommended the use of marijuana to treat a serious medical condition.

Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provide a lot of protections for Californians who use medical marijuana. Unfortunately, I encounter many people who are often surprised to learn that those protections don't go as far as they had imagined.

If you're found in possession of a significant amount of marijuana or if you are caught cultivating, you should expect to be arrested.  You should also expect that the police will seize your medicine and your growing equipment.  They will claim that the property is contraband (because, as stated above, marijuana is still illegal).  They will disregard your doctor's note.

Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges by proving your status as a qualified medical marijuana patient.  Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your medicine and growing equipment.

That's where I step in.

There is a process in California for obtaining a court order, signed by a judge, directing the local police department to give you back your property if you can prove that you are the lawful owner of the property and the property is not contraband or evidence in a pending criminal case.  The property at issue can be a car, a computer, a weapon, a pile of cash, or even your medical marijuana.  Of course, when marijuana is involved, the process is a little more complicated, but don't be discouraged.  Our firm has experience in fighting on behalf of medical marijuana patients.

A petition for the return of medical marijuana in California is called a "Kha" motion, named for the case in which the argument was first applied.  In order to prevail on your Kha motion, you and your attorney will need to convincingly demonstrate several things.

First, we must show that you are a qualified patient and that you are lawfully entitled to possess marijuana.  This means proving that your doctor has actually recommended the use of medical marijuana to treat some serious medical condition.  If you went to some shady little medical marijuana clinic and spoke to a doctor via Skype, it may be difficult to issue a subpoena for this doctor and to secure his presence in court.  Even if we are able to track him down and drag him into court, he may simply testify that he doesn't remember you or that he cannot vouch for the authenticity of your recommendation.  This is not very helpful.

The best way to prove your status as a qualified patient is to obtain a state-issued MMP ID card. These photo ID cards are administered and distributed by your local county's Health Department. To get yours, you must take your doctor's recommendation down to the local health department, along with any other medical records related to your condition and pay a fee.  The county agency will confirm that the recommendation is legitimate and they will issue you a photo ID card.  Once you have this government-issued card, you should be able to easily prove that you are a qualified medical marijuana patient, even if your doctor is not willing to testify on your behalf.  A valid state-issued MMP card looks like this:

I talk to a lot of people who possess "cards" issued by their doctors.  These doctor-issued cards are absolutely worthless unless they actually came from your county's Health Department.  Don't be duped into paying your medical marijuana doctor for a photo ID card.  If your "card" looks like this, you should follow the steps described in the previous paragraph:

Once you have established that you are a qualified medical marijuana patient, the next issue that will probably arise is the question of how much marijuana you are legally entitled to possess.  By law, you may possess as much as you need for your personal use.  Obviously, this quantity will vary by user.  If you grow your crops outdoors and you only get one harvest per year, you might need a larger amount to last until your next harvest.  Similarly, someone who eats their marijuana might need more than someone who smokes it.  Your state-issued card will indicate the quantity that you are allowed to possess.

After we prove that you are a qualified patient and that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case.  Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil).  Talk to your attorney about any potential risks involved with petitioning for the return of your medicine.  By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than your prescribed limits or that you were involved with illegal distribution.

If your marijuana is destroyed by police during its seizure or its storage, you may also be entitled to compensation for its fair value.

The fight for medical marijuana rights in California has been long and hard-fought.  For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief.  We've come a long way since 1996.  Medical marijuana continues to gain acceptance and patients are winning more protections with each courtroom victory.  Unfortunately, many law enforcement agencies refuse to recognize this progress.  Some police departments are still trained to believe that "there is no such thing as medical marijuana".  They will ignore your doctor's recommendation and seize your property.  They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights.  Too often, they're right.  Don't let them get away with this.  If police are running roughshod over your rights, hold them accountable.  Take a principled stand, demand the return of your property and let them know that it's time to stop abusing medical marijuana patients in California.

If police have seized your medical marijuana, call our office to discuss your options.  We offer free consultations.  (714) 505-2468.  Ask for John.

Thanks for reading.