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

Thursday, July 20, 2017

Is it Worth My Time to Fight a Restraining Order?

I believe I've posted about this question before, but I still hear it a few times every week. Callers tell me that an ex-girlfriend or a former co-worker has filed a restraining order petition against them. They don't see the petitioner anymore and they have no reason or desire to have further contact with that person. As they see it, a restraining order really wouldn't affect their life in any way -- it wouldn't prohibit them from doing anything that they really want to do. Why take the time and effort to fight it?

There are plenty of good reasons to oppose a restraining order, even if you agree to the petitioner's basic demands (e.g. stay away, have no contact, do not follow or stalk, etc.), and even if you have no interest in doing those things anyway. Having a restraining order issued against you will affect your life in ways that might not be obvious. These court orders are public records. Subjects of restraining orders forfeit various rights that the rest of us enjoy. Being the subject of a restraining order may also lead to some other nightmare scenarios that I've seen, and that I'll describe below.

Even if you're not interested in the restraining order, your employer might be. As mentioned, restraining orders are public records. They're available for anyone to see, with or without your permission. They are easily discovered by a simple background check. Most courts even put this information online now. Being the subject of a restraining order can make you ineligible to hold certain jobs or professional licenses. Good luck getting a security clearance or a Global Entry pass with an active restraining order against you.

Anyone who is the subject of a restraining order is prohibited from owning or possessing firearms. If there's a restraining order against you, you may not even have access to firearms that someone else in your home owns. If you already own guns, you will be ordered to surrender them to local police, or else sell them to a licensed dealer immediately. You may not simply give them or "sell" them to a friend or family member for safekeeping. If your job requires you to carry a weapon in the course of your duties, you might be looking for a new job. Again, good luck finding work with a restraining order on your record.

Having a restraining order issued against you may also make you vulnerable to false accusations or "accidental violations". If the petitioner spots you (or someone who looks like you) in a restaurant or a public place, she is likely to call the police. Even if you haven't "knowingly and willfully" violated the order, you can expect an unpleasant and embarrassing encounter with investigators. I've handled too many cases where my client accidentally butt-dialed an ex-girlfriend, allegedly violating an active restraining order. If your email gets hacked and your account starts sending spam messages to everyone in your address book, you could end up back in court trying to explain yourself.

Take restraining orders seriously, and make the necessary preparations to ensure the best outcome possible for your case. Of course, the best way to effectively prepare for your day in court is to retain a qualified, local expert. If you or a loved one has questions about restraining orders, call us for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Monday, July 17, 2017

How to Fight a Restraining Order When the Petitioner is Crazy

One of the inherent problems in restraining order court is that anybody can file a petition against anybody else, at any time. This often means that the petitioner (the person seeking the protection of a restraining order), is crazy. He or she may be paranoid, delusional, senile, drug-addled, vindictive, or just plain nuts.

If a crazy person is seeking a restraining order against you, presenting an effective defense can be tricky. It is not sufficient to simply argue that the petitioner is crazy. Instead, you must carefully show the judge that your opponent is detached from reality, and that the allegations against you are entirely made up. The goal here is to prove that the accusations against you are false, not just to prove that the person making the accusations is erratic or afflicted with some mental disease.

This defense strategy can be more complicated and difficult than some clients expect. Even if you have personal knowledge of the petitioner's mental health problems, the rules of evidence will restrict the types of arguments that you're allowed to present in court. First of all, you may not testify that somebody else told you about the petitioner's diagnosis. That would be hearsay. The person who actually made that diagnosis must appear in court to testify. If that person is the petitioner's doctor, then the rules of confidentiality would prohibit the doctor from revealing the petitioner's medical records.

In some types of restraining order hearings, hearsay is admissible. Even if this evidence may come in under the hearsay rules, it may still be excluded if you are not qualified to render an opinion on the subject. Before any evidence is admissible in court, the witness must "lay the foundation" -- that is, you must prove that you possess the knowledge that you're now presenting as fact. Psychiatric diagnoses are obviously complicated medical issues. Even if you've personally observed "insane" behavior by the petitioner, the judge will not allow you to express an opinion about the petitioner's medical condition or mental state because you're simply not qualified to do so.

Remember also that even crazy people have the right to be free from civil harassment and domestic violence. If your defense is that the petitioner is crazy, you must be careful not to blame the victim for your harassment. For example, you must be extremely mindful not to argue that the petitioner deserves to be harassed because she is crazy. Instead, you must argue that you have not harassed anybody. If the petitioner believes that you have harassed her, you must prove that she is mistaken and that her false beliefs are rooted in delusions. This is done by effectively cross-examining the witness in court. A qualified attorney knows how to ask probing questions, drill down on the details, let the witness discuss her false beliefs, and give her enough rope to hang herself. A good lawyer will not argue with the witness or become confrontational. Instead, the witness should have the opportunity to destroy her own credibility.

Last, and most important, is to always consider the relevance of any argument that you want to present. The big question in restraining order court is whether or not the petitioner can prove that the respondent has engaged in harassment or domestic violence. The court is not interested in determining whether or not you're a good person, or whether the opposing party is a bad person, or whether someone has lied about something unrelated in the past, or who was responsible for the breakup, etc. Those issues might be important to you, and they might be loosely related to something in your case, but the court simply does not care. It might be tempting, but you must not waste the court's time and your own by focusing on irrelevant details.

Every piece of evidence that you present as the respondent must support the fact that you have not engaged in conduct that would legally justify the issuance of a restraining order. If your argument is that the petitioner is crazy, you must prove that the allegations against you are untrue. The petitioner's mental health issues are not an excuse for your bad behavior. Instead, those delusions help explain why the petitioner falsely believes that you have done something inappropriate.

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

Thanks for reading.

Orange County Restraining Order Lawyer

Friday, June 23, 2017

Can I Get a DUI on Private Property?

In California, you can be arrested for DUI on private property, off-road, or even on the water.  

Section 23152 of the California Vehicle Code prohibits anybody from operating a vehicle while they are under the influence of drugs or alcohol. The DA doesn't need to prove that you were on a public road. They don't even need to prove that the vehicle was an automobile.  

I've had clients accused of riding dirt bikes, jet skis and golf carts while drunk (not all at the same time). In California, all of those situations can be treated as "DUI". Hiring an experienced DUI defense attorney can be very helpful in these cases, though. Often, the kind of officers who arrest drunken dirt bikers, boaters or golfers are inexperienced in making those types of arrests. They don't have the training or resources to properly prosecute DUI cases. Park rangers and harbor patrol officers might mishandle evidence or fail to file documents in a timely manner.

You can even be cited for riding a bicycle while drunk in California ("Cycling Under the Influence, or "CUI"), but those cases are treated a little differently. CUI is an infraction only and not a misdemeanor, so the court cannot impose jail time or probation. Bicycles obviously aren't "motor vehicles", so the 0.08% BAC limit doesn't apply, and the DMV will not suspend your driver's license or impose mandatory classes. To be guilty of CUI, the officer must prove that you were so impaired by alcohol and /or drugs that you could not operate a bicycle with the skill and care of an ordinary cyclist (whatever that means). If you are cited for CUI, you may demand a breath or blood test, but you are not required to take one.  

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