Wednesday, March 14, 2018

Can Hands Be Considered "Deadly Weapons" in California?

Is it true that Mike Tyson's hands are considered "deadly weapons"? If Chuck Norris karate chopped someone in a bar, would Mr. Norris be charged for "assault with a deadly weapon"? In California, the answer is "maybe".

Section 245 of California Penal Code defines aggravated assault, commonly referred to as "assault with a deadly weapon, or by force or means likely to induce a great bodily injury". To be guilty of violating PC 245, the DA must prove that the defendant willfully performed some act that would likely injure someone else. This can be accomplished with or without the personal use of a weapon.

If the defendant uses or attempts to use a weapon against a victim (he swings a baseball bat toward someone, or throws a rock at someone's head, etc.), a jury could convict him of violating PC 245 because those actions are likely to cause an injury, regardless of whether or not the defendant actually harms anyone. Those are both examples of "assault by force or means likely to result in a bodily injury", even when nobody actually gets hurt.

A defendant can also be guilty of violating PC 245 without personally using any weapon. Remember, actually using a weapon is NOT an element of this crime. A defendant can be convicted for PC 245 if he and a friend (or several friends) cooperate to jump someone. Even if none of the assailants use weapons, jumping someone in an unfair fight is likely to cause serious injuries to the target of that beating. Anyone who participates in the jumping is guilty of violating PC 245.

Similarly, the DA might file PC 245 charges in a case where a fair fight devolves into a beating. For example, imagine two men voluntarily choose to fight in a parking lot. The fight starts fairly and the two men are evenly matched, but one man slips, drops his hands, and gets knocked out. After he falls unconscious, the other man continues kicking and beating him on the ground. Obviously, beating and kicking an unconscious man is likely to cause serious injuries. Even though this confrontation began as a fair fight, and even though the victor never used a weapon, he could still be charged and convicted for violating PC 245.

Back to my example of Mike Tyson or Chuck Norris assaulting someone in a bar fight: if either world-renowned fighter took a swing at a drunken amateur, it is probably likely that the poor victim would suffer some serious injury. If a jury agreed, then Iron Mike and Master Norris could be convicted of "assault with a deadly weapon" under PC 245 simply for punching someone with a bare fist.

In the real world, though, cases aren't usually so cut-and-dry. There are many possible defenses to assault charges, including self-defense. If you or a loved one has been arrested for assault in California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton assault lawyer

Tuesday, March 13, 2018

The Truth About DUI Lawyers

So you or someone you love has been arrested on suspicion of DUI. One of your first decisions must be whether or not to hire a private attorney. Before you invest thousands of dollars on a stranger, I think it's important to have a good understanding what a DUI lawyer can (and can't) do for you.

If your expectations on your attorney are unrealistically high, you will be disappointed and angry. You might feel like your attorney made false promises and then ripped you off. If your expectations are too low, you WILL get ripped off by an unscrupulous dump truck law firm. The key, then, is to develop a good understanding of the role that DUI attorneys actually play in the process and how they can actually help.

Your attorney's job is to effectively communicate the facts of your case and to concisely explain how the law fits into those facts. If you're in custody, your lawyer can help negotiate an O.R. release or a bail reduction. If you have outstanding warrants, your lawyer may be able to have them recalled without surrendering you to custody. He can gather the facts and clearly explain your options, possible defense strategies and the risks associated with each of those strategies. Your lawyer should outline the process so that you understand what to expect at each hearing. Ultimately, he or she should guide you to the best conclusion possible under the circumstances, depending on your priorities. If your attorney has done the job effectively, you should feel that you were treated fairly and that you made reasonably informed decisions because you had the knowledge and the understanding to do so.  

DUI lawyers will save you a lot of time, money and stress. They will make your court appearances for you so that you don't have to miss work. They will work to reduce your penalties (ideally by earning a reduction or a dismissal of the charges entirely, if possible), and they will alleviate your stress by ensuring that you understand the process and your options.  

It's also important to remember, though, that DUI lawyers are not wizards. They cannot change the facts of your case. Despite what you might have seen on TV, they cannot simply go golfing with the judge or take the DA to lunch and "make your case go away". Most of the time, lawyers cannot bury the DA in paperwork or put a cop on the stand and make him admit that he's lying. Sometimes we do those things, but those cases are exceptional. 

If you or a loved one has questions about a DUI in Orange County, call our office for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.  

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