Wednesday, January 21, 2015

Driving Under the Influence of Marijuana in Orange County

The Orange County District Attorney's Office has taken an aggressive approach to cracking down on drivers who operate vehicles while under the influence of marijuana and other drugs.  Their office now employs specially-trained prosecutors who are exclusively assigned to handle cases involving driving under the influence of drugs (or "DUID").  They take these matters seriously.  You should too.

Holding a valid recommendation to use medical marijuana is no defense to the charge of driving under the influence of marijuana.  I always tell my clients to think of marijuana like alcohol: I might be allowed to legally possess alcohol (because I'm an adult), but I'm not allowed to drive a car while I'm dangerously impaired.  I can drink one beer and legally drive a car -- I can probably drink several beers and still drive a car safely and legally.  But I cannot drive a car if my blood alcohol concentration is greater than 0.08%.

Unlike alcohol, however, there is no legal limit to clearly define when a driver is too stoned to get behind the wheel.  In order to be found guilty of driving under the influence of marijuana, the District Attorney must prove that a driver was "impaired" by the drug to such a degree that he or she was unable to safely operate a vehicle.  This is where it gets complicated.

Trying to determine a person's precise degree of marijuana impairment is difficult for several reasons.  First, marijuana affects users differently, depending on a person's relative experience with the drug, the particular strain of marijuana, the method of ingestion (smoked, eaten or vaporized), and the user's unique psycho-physiology.  Of course, an inexperienced user might have a very strong reaction to a dosage that Willie Nelson ingests before breakfast.  See Maureen Dowd's piece in The New York Times from last year.

Also, unlike alcohol, peak blood-THC concentrations do not necessarily correlate with peak impairment.  Strangely, levels of THC as detected in the blood tend to trail the effects of the drug as felt by the user.  A toxicology report might reveal that a subject had a particular level of THC in his or her blood within an hour of being arrested, but this number is not very valuable in helping to determine the subject's actual degree of impairment at the time of driving.

Standardized Field Sobriety Tests ("the roadside Olympics") are designed and intended to detect drivers who are impaired by alcohol.  During these tests, police are looking for the tell-tale signs that a suspect is too drunk to drive -- poor balance / coordination, slurred speech, etc.  Since marijuana does not affect balance and coordination like alcohol, those tests are not reliable indicators of marijuana intoxication.

Cases of alleged driving under the influence of marijuana typically turn on the police officer's opinions based on his own observations after the traffic stop.  These impressions are obviously very subjective and open to interpretation.  The officer will testify that the subject "appeared disoriented" and was either "too relaxed" or "too nervous" (see the catch-22?).  Prosecutors will also attempt to prove impairment by introducing evidence of bad driving (either too fast or too slow, following too closely to far, etc.).  Any maneuver you make (or don't make) will be introduced as "proof" of marijuana impairment.

Our office has extensive experience defending "driving under the influence of marijuana" cases in Orange County and surrounding areas.  Don't let the DA railroad you into a bad deal.  If you or a loved one is accused of DUI for alcohol, marijuana or any other drug, call us for a free consultation.  Ask for John.  (714) 505-2468.

Thanks for reading.

Tuesday, January 20, 2015

Resisting Arrest in California: PC 148(a)(1)

Section 148(a)(1) of the California Penal Code makes it a misdemeanor to willfully resist, obstruct or delay any public officer in the performance of their lawful duties.  Essentially, this code section makes it a crime to waste a cop's time.  If a police officer feels that you are making his job more difficult or time-consuming than necessary, this is usually the law that they will cite in taking you to jail for the evening, even if you haven't done anything else illegal.

"Resisting arrest" is a bit of misnomer, because you can be arrested on suspicion of violating PC 148(a)(1), even if you weren't even under arrest until you began resisting.  My clients tell me all the time, "I can't be guilty of resisting arrest, because I wasn't under arrest until I was arrested for resisting arrest".  Unfortunately, the law encompasses all sorts of behavior that "obstructs or delays" police while they attempt to perform their duties.  Cops and prosecutors will argue that the law includes behaviors which are merely annoying or inconvenient to police (talking back, refusing to identify yourself, getting in the way, creating a distraction, etc.).

In order be found guilty of violating PC 148(a)(1), prosecutors must prove that police were actually engaged in the lawful performance of their duties.  If you are charged under this code section, you may have a defense based on an argument that police overstepped their legal authority and were, therefore, not lawfully attempting to perform their jobs.  Only an experienced attorney can tell you whether or not this is a winning argument in your case.

If you or a loved one is accused of resisting, obstructing or delaying a police officer in violation of PC 148(a)(1), call our office for a free consultation.  I'd be happy to discuss the facts of your case to determine whether or not we can help.  Our firm has extensive experience in all courts within Orange County, Los Angeles, Riverside and San Bernardino.  Ask for John.  (714) 505-2468.

Thanks for reading.

Friday, January 9, 2015

Cleaning Up Your Criminal Record in California

If you've ever been convicted of a crime in California, there may be several options available to help you clean up your criminal record for a fresh start in the new year.

Your criminal record is public.  Anyone who cares to check can quickly and easily access detailed reports regarding any criminal charges that have ever been filed against you, even if you were later acquitted of those charges or the case was dismissed.  These public records will continue to cause you embarrassment, can prevent you from getting hired or promoted, and may also be grounds for loss or denial of a professional license.

Luckily, our office has extensive experience in helping people clean up their criminal records so that they can get back onto their feet and on with their lives.

I've previously written about expungements -- what they can (and can't) do, who qualifies and how the process works.  In a nutshell, an expungment will dismiss an old case against you after you have successfully completed probation and served all other penalties.  An expungement will not completely hide the fact that you once had an criminal charge, but will change aspects of your record so that your criminal history no longer shows a "conviction".

If you're currently on probation, you aren't eligible for an expungement.  You might, however, be eligible for early release from probation.  There is a process for asking the judge to let you off probation early.  This is something we can help you with.  Typically, a judge wants to see that you have completed a majority of your probation (at least 2/3 or 3/4 of the total term), that you have had excellent performance so far while on probation, and that there is some compelling reason that justice would be served by letting you off early (like going back to school or accepting a new job, etc.).

If you've ever been convicted of a felony, there are a couple ways that you might be eligible to have that charge reduced to a misdemeanor.  The first option is called a "17(b) Petition".  17(b) petitions apply when you've been convicted of a crime that is categorized as a "wobbler" -- one that may be filed as either a felony or a misdemeanor -- if the DA elected to charge you with a felony.  We may petition the court to later drop that charge to a misdemeanor.  This doesn't work for every felony charge, because not every felony is a "wobbler" (not every felony may alternatively be charged as a misdemeanor.  Drug sales, for example, is a straight felony and cannot be reduced by a 17(b) petition).

Since California voters passed Prop. 47 in November, some felons are now entitled to have their charges reduced to misdemeanors.  Unlike 17(b) petitions, Prop. 47 petitions do not require any showing of "good cause", or a compelling reason why a reduction serves the interest of justice.  For that reason, they may be easier to obtain in some cases than the old-fashion 17(b).  Prop. 47 petitions can be filed at any time -- while a case is pending, while an applicant is currently serving a sentence after conviction, or even after the applicant has been released from custody.  Prop. 47 took many charges that had previously been classified as "wobblers" and reduced them to straight misdemeanors.  Determining a person's eligibility for relief under Prop. 47 can be complicated because the law includes a lot of exceptions and caveats, but we can help evaluate your chances of success.

If you or a loved one has questions about cleaning up your criminal history and starting off the new year with a fresh record, call our office for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Tuesday, September 16, 2014

Am I Required to Show Police My ID in California?

Actress Danielle Watts had an unfortunate encounter with some of LA's finest last weekend, after someone called 911 to report suspected prostitution in a parked car.  Apparently, the Django Unchained actress, who is black, was sitting in the vehicle and kissing her boyfriend, who is white. Police responded to the scene and conducted a cursory investigation before determining that no crime had been committed.

During the course of their investigation, police requested Ms. Watts' ID.  When she refused to provide one, she was briefly handcuffed and placed into the back of a squad car.  Eventually, her boyfriend produced her driver's license and she was released.  Her refusal to provide ID has raised a lot of commentary from legal analysts, amateur and professional alike.  What legal authority do police have to request ID from adults in public places?  What rights do I have if I refuse to provide one?  Put simply, am I required to show my ID to police upon demand in California?

The answer, like almost everything else in the law, is "it depends".

In most situations, you have no legal obligation to show your ID to police in California -- that is, you will not be arrested simply for the crime of "refusing to produce ID upon demand of a peace officer". An exception exists if you are operating a motor vehicle.  Of course, cops can demand to see your driver's license if you're observed committing some kind of traffic violation in your car.  Refusal to provide your driver's license after a traffic stop will result in a citation or arrest.

And then there's a lot of gray area.

Keep in mind, police can always ask to see your ID, just like they can ask you to make them a turkey sandwich.  You have no legal obligation to do either (under most circumstances).  The big question then becomes: what happens if I say "no"?

Police have authority to temporarily detain individuals if they have a "reasonable suspicion" that the subject might be engaged in some type of criminal activity.  These "temporary detentions" usually involve little more than checking ID and sending folks on their way.  "Reasonable" is the key word in these situations:  is the cop acting "reasonably" in suspecting that a subject might be involved in criminal activity?  Is the detention "reasonable" under the circumstances?  These questions obviously turn on the specifics of each case.

So, while you generally have no legal duty in California to show your ID to cops upon demand, refusal to do so may prolong your "temporary detention", as Ms. Watts recently learned.

Tuesday, August 26, 2014

Cited on Catalina Island

You might be surprised to learn that Catalina Island (located just off the coast of Los Angeles and Orange County, CA), is home to small courthouse.  Pictured above, the one-room court is attached to the local Sheriff's station on Sumner Ave., right in the heart of downtown Avalon.  Most visitors probably walk right by without even noticing it's there.  The courthouse hears low-level criminal matters and is only open on alternating Fridays.

The most commonly charged offenses in the Catalina Courthouse include DUI (yes, even on golf carts, assault / battery, disturbing the peace, domestic violence, being drunk in public, and fishing violations.

If you've been cited while visiting Catalina, you were probably given a "Notice to Appear" (that little, yellow piece of paper), instructing you to return here for an arraignment in about 8 weeks.  At your arraignment, you will have an opportunity to resolve the case by simply pleading "guilty".  This is not the day for your trial.  If you intend to fight the case, you should expect to make a series of trips back to the island until your case is resolved.  This process can take several months.

As mentioned, the courthouse is only open on two days of each month, weather permitting. During rain storms, the ferries serving the island often stop running.  Intermittent ferry service can make it difficult to appear in court.  The cost of making several trips back to the island can also be prohibitive -- you're likely to spend more on travel expenses than you will on your court fines.

Save yourself the time, expense and hassle of traveling back to Catalina to appear in court -- have a local attorney do it for you.  As a private, local defense attorney, I can make most court appearances on your behalf without you being personally present.  My fees are probably less than what you would spend on travel alone.

We have extensive experience in the Catalina Courthouse and we get fantastic results for our clients. A misdemeanor conviction can follow you around and make your life difficult in many ways. Too many people are intimidated by the cost of making several trips back to the island.  Rather than fighting for the best possible resolution, they accept bad deals to settle their cases.  Don't be intimidated into accepting anything less than the best possible resolution for your matter.

Call us for a free consultation.  (714) 505-2468.  Thanks for reading.

Thursday, July 24, 2014

How to Get an Expungement in California

If you've been convicted of a crime in California, you may be eligible to clean up your record with an expungement.  Expungements are governed by section 1203.4 of the Penal Code.  Once granted, they have the effect of dismissing a case against you after you've finished serving all your penalties.  After your record has been expunged, you can honestly tell most employers that you have no criminal convictions in your past.  Like everything else in the law, though, there are some exceptions.  I'll get into those below.

In order to qualify for an expungement, you must meet the following criteria:

1) You were convicted of a crime in California (infraction, misdemeanor or felony, with a few exceptions).
2) You were NOT sentenced to state prison (county jail is OK, but state prison is not).
3) You received probation and you successfully completed your term of probation without any violations, OR you received a terminal disposition (no probation) and you've waited more than one year since the conviction, OR you violated probation, but there's a very compelling reason why the judge should make an exception for you and grant the expungement anyway.
4) You have no other active, open or pending criminal cases, and
5) You're not currently on probation or parole in any other cases.

If all of these factors are satisfied, congratulations!  You're probably eligible to petition the court for an expungement.

To start the process of your expungement petition, you (or your attorney) must complete a couple documents, called a "CR-180" and a "CR-181", available here.

After filling out those forms completely, they must both be properly served on the DA who prosecuted your case and they must be filed with the court where your case was heard.  Service must be made by someone else (you may not serve your own documents).  The person who mails or delivers the documents to the DA must also complete a "proof of service" form and include that document when the petition is filed with the court.  The court's filing fee for expungement petitions varies from $60.00-$150.00.

Once your petition packet has been served on the DA and filed with the court, the DA has 15 days to respond with any reasons that they believe the petition should not be granted (for example, if they believe that the petitioner did not successfully complete probation or if they believe that the petitioner has some other active, open cases.  The process can get complicated if the petitioner has a common name and other people with the same name have recent criminal activity).

Next, a judge will review your petition and the DA's response.  Typically, if you are clearly eligible and the DA has no opposition, the judge will simply sign the proposed expungement order and will return it to you by mail within 6-8 weeks.

If the DA opposes your expungement petition, the court will schedule a hearing for both sides to appear before a judge and to explain why the request should or should not be granted.

After your expungement petition is granted and signed by a judge, your criminal record will be amended to show that your old case has been dismissed.  An expungement will not completely erase the case from your record, but it will erase the fact that you pleaded "guilty" or "no contest", or that you were convicted by a jury.  For most private employers, that's as good as if the whole matter never happened.  As I mentioned above, though, there are some exceptions.  If you apply to be a police officer or if you seek to enter some profession that is licensed by the state (e.g., doctor, lawyer, nurse, dentist, notary, bail bondsman, contractor, insurance broker, Realtor, etc.), the licensing body responsible for that profession may still consider the prior conviction.  The same is true if you own a market and you apply to sell lottery tickets.  For some reason, the state lottery does not recognize California expungements.

This is the expungement process in a nutshell, but it's obviously a lot more complicated than that.  If you have questions about your eligibility for an expungement in California, call our office for a free consultation.  I'll never charge you a penny to answer your questions.  If this entire process sounds too complicated or time-consuming, let us handle everything for you.  We have extensive experience with expungements in all Southern California courts, including in Los Angeles, Orange, Riverside, San Bernardino and San Diego Counties.  Our fees are competitive and depend on the nature of your case.

Other firms will quote you a low fee to get started, then they'll bury you in hidden fees.  We never charge hidden fees.  I will quote you a fixed price up front, depending on the complexity of your issues.  I will also be personally responsible for your case until it is resolved.  You will never be handed off to an intern or a less-experienced junior partner.

Invest in your future by cleaning up your past.  Don't waste another day if your old mistakes are standing between you and a better job.  (714) 505-2468.  Ask for John.

Thanks for reading.

Tuesday, June 10, 2014

The Future of Medical Marijuana Dispensaries in Santa Ana

Updated 11/10/14:  Both proposed ordinances passed, but the Council's measure garnered more total votes.  The new ordinance will take effect December 19.  The city's Director of Planning will now prepare an application packet that each dispensary must submit.  Once all qualified applications are received, the city will hold a lottery to randomly select 20 dispensaries that will be permitted to operate within 2 designated areas.  

Updated 7/24/14:  The OC Register is reporting that the Santa Ana City Council recently voted to earmark $500,000 for a task force devoted specifically to shutting down illegal dispensaries in the city.  According to the author, SA police cited or arrested 42 people over the course of 2 days for crimes related to working in, owning, managing or volunteering at illegal shops.  Stay tuned for more details as they become available.  

The future of Santa Ana's bustling medical marijuana industry hangs in the balance, as activists and local leaders grapple with the city's proliferation of storefront dispensaries.  

As of today, nearly 50 active pot shops operate within Santa Ana, mostly concentrated around "the green mile" -- 17th Street, between Grand & the 55 Freeway.  That number has fluctuated wildly over the past couple years, due largely to inconsistent enforcement and market forces.  

Santa Ana imposed an official ban on storefront dispensaries in 2007.  Since that time, enforcement actions have shuttered 177 collectives.  Despite the city's efforts, though, clubs are often operating again within days.  

The high turn-over in "fly-by-night" pot shops has frustrated observers on both sides of the debate. City leaders and code enforcement officials complain that, despite their best efforts, the lure of quick money attracts new dispensaries faster than law enforcement can shut them down.  Seriously ill patients complain about the safety, security and lack of regulation at "less-than-legitimate" collectives.  

We all agree that the current status of medical marijuana in Santa Ana is not sustainable.  Only a clear, concise set of reasonable regulations will bring some order to Santa Ana's green mile. Residents need assurances that the pot shops in their backyards aren't attracting crime or degrading the quality of life in their neighborhoods.  Patients need a safe, affordable and reliable source for their medicine.  

Medical marijuana activists have gathered enough signatures to qualify a ballot initiative for the November election.  If approved by voters, The "Medical Cannabis Restriction and Limitation Initiative" would establish a process for collectives to register with the city and to pay a 2% sales tax.  It would prohibit loitering and smoking on the premises and would restrict areas where pot shops could operate. Kandice Hawes, president of OC NORML, says, "We feel that people do want medical marijuana collectives.  They want them to be controlled and safe, and they want the participation of the city and the police departments."

The City Council is now debating whether or not to place its own, competing measure on the ballot.  The city's proposal would impose a 5-10% tax and would cap the total number of licensed shops, and would restrict dispensaries to two industrial zones within the city.

If we've learned anything from our country's failed social experiment called "prohibition", it should be that the government cannot simply make something go away by making it illegal.  The market forces of supply and demand are far more powerful than any local code enforcement agency. Driving the market underground causes more problems than it solves.  When the product is outlawed, the government turns its citizens into outlaws.  I understand and support the city's need for comprehensive, effective regulation of this emerging industry.  Residents should feel secure in their homes, without excessive traffic, loitering and other nuisance behavior.  The Council's proposed ordinance could be counterproductive, though, if it overtaxes marijuana or places an artificial cap on the number of shops that are permitted to operate within the city.  Let the market decide how many shops will operate.  If dispensaries are overly restricted and taxed, prices are likely to climb and many consumers will turn back to the black market.

Unlike the Council's proposed ordinance, the Medical Cannabis Restriction and Limitation Initiative (or MCRLI) sounds like an effective way to address the community's concerns while ensuring that qualified patients have safe and convenient access to their medicine.  It will protect children, generate revenue for the city without imposing burdensome taxes, and reduce the harmful impact that some collectives have had on their surrounding neighborhoods.

This November, vote to save medical marijuana in Santa Ana. Vote "yes" on the Medical Cannabis Restriction and Limitation Initiative.  If the Council votes to place its own, competing measure on the ballot, tell them to butt out and let the free market do what it does best.

Disagree?  Let me know in the comments section, below.

Thank for reading.