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

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

Tuesday, August 22, 2017

I Lost in Restraining Order Court. Can I Get Another Hearing?

You generally get one bite of the apple in restraining order court. This is why I'm always stressing the importance of showing up to court prepared for your hearing. Part of effectively preparing for your day before the judge includes speaking with a qualified, local attorney as early as possible. Your attorney understands the rules of evidence, how to issue subpoenas, how to properly examine witnesses, and how to effectively present a case in court. You wouldn't operate on yourself; don't try to represent yourself in court.

If, despite your best efforts, you haven't had an opportunity to thoroughly prepare before your court hearing, there's some good news -- you are entitled to at least one free continuance. Maybe you haven't been able to save up the money to retain a qualified lawyer. Maybe you're still trying to locate and interview prospective witnesses. If you need more time for any reason, all you have to do is show up and ask the judge nicely for 2-4 more weeks to get your ducks into a row. The court will give you as much time as you reasonably need to prepare your defense.

That being said, there are a handful of good reasons to request a new hearing if a restraining order is granted against you. First, though, you need to understand a few things that are NOT good reasons to request a new hearing:

I Wasn't Ready 

The court does NOT want to hear that you were simply unprepared. As mentioned above, you were entitled to a continuance before the hearing if you weren't ready to go forward. If you wanted more time, you only had to ask for it. If you announced that you were ready to litigate, though, it's too late to request a postponement now. That ship has sailed.

I'm Not a Lawyer

It is also NOT effective to argue that your hearing was unfair because you aren't a lawyer and you didn't understand the rules. If you choose to represent yourself in court, you will be held to the same standards as a professionally trained and licensed attorney. You will not receive any special considerations or preferential treatment if you appear without a lawyer.

The Petitioner Lied and the Judge Believed It

Finally, you CANNOT argue that the restraining order should be overturned because you disagree with the judge's ruling. Again, the point of the hearing was to present relevant facts and evidence -- that was your chance. If you showed up in court without any evidence and unprepared to explain / deny / excuse the petitioner's evidence, reread the previous paragraphs.

After hearing the evidence, the judge had discretion to determine whether or not harassment has occurred. If the judge heard the facts and weighed the evidence fairly, in accordance with the law, then the issues are settled. The court will not reconsider any new arguments, except...

Motion to Reconsider a Restraining Order

The Respondent MAY ask the court for a new hearing if there are some "new or different facts, circumstances or law" since the first hearing. If the situation has changed since you last appeared in court, you may appear before a judge and explain why the restraining order against you is no longer necessary or warranted.

In a motion to reconsider a restraining order, the judge does not want to hear a better version of the arguments you've already made. Instead, the court wants to hear something new that wasn't available at the last hearing.

Here's the kicker, though: a motion to reconsider a restraining order must be filed within 10 days after the respondent is served with the original order. This is why motions to reconsider are difficult -- you're required to prove some "change in circumstances", but you only have 10 days to do so. Since circumstances are unlikely to change that drastically in 10 days, motions to reconsider restraining orders can be an uphill battle.

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

Thanks for reading.

Orange County Restraining Order Lawyer.

Monday, July 31, 2017

How to Recall an Arrest Warrant in Catalina Court

Catalina Island is a tourist destination located about 20 miles off the coast of Southern California. The town of Avalon and its surrounding waters are home to world class diving, fishing, hiking, boating, drinking and getting arrested.

If you've been cited or arrested for a misdemeanor while visiting Catalina Island, you're in for a treat. The local sheriffs will arbitrarily assign a future court date for you to return and appear before a judge. More often than not, that date will be rescheduled. The DA may or may not notify you of the change. If you fail to appear on the proper date, a warrant will be issued for your arrest.

Local police also like to falsely advise people that their criminal cases can be addressed in Long Beach. Most of the time, they cannot. Felony cases are heard on the mainland, but misdemeanors and infractions from Catalina must be heard at the courthouse on the island.

The Catalina court is only open on alternating Fridays. The rest of the time, the building is dark and vacant. You cannot simply appear on an unscheduled date and ask to be heard by the judge.

If you appear at the Catalina courthouse on a date when the court is open but your case is not scheduled to be heard, you will be told to come back another time. The tiny courthouse in Avalon does not store its own files. All records are maintained back in Long Beach. Case files are flown out to Catalina by helicopter on their appointed hearing dates. If you appear on a date when DA left your paperwork back on the mainland, prepare to make another trip.

If you have an outstanding warrant from Catalina, your case must be added onto the court's calendar to be heard at a later date. To be added to the calendar in Catalina, you must speak to the court clerk in Long Beach (because that's where the case files are stored). Once the Long Beach clerk adds your case to the Catalina court's calendar, then you may plan to appear on the appointed date back in Catalina.

Or, you can have an experienced, local attorney handle the entire process for you. Our firm regularly appears in the Catalina court. We defend more cases in Avalon than any other private law firm in the state. Since we appear in Catalina so frequently, we do not charge our clients for travel time or expenses. In most misdemeanor cases, we can appear without you being personally present. We can save you the time, hassle and expense of returning to the island for multiple court appearances. Our office has extensive experience defending against all types of criminal offenses that are commonly filed on the island, including fishing violations, drunk in public, domestic violence, fighting and drug possession.

If you or a loved one has questions about appearing in court on Catalina Island, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Catalina Lawyer