Wednesday, March 25, 2015

Police Took My Marijuana. Can I Get it Back?

Since the passage of Prop. 63, adults in California may use, possess and cultivate marijuana for their personal use. Despite its legal status, though, marijuana remains highly regulated and controlled. Just like alcohol, individuals may not sell, transport or distribute the substance without the appropriate licenses.

Prior to the adoption of Prop. 63, medical marijuana was governed by a patchwork of state laws and ballot initiatives. Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provided a lot of protections for Californians who used medical marijuana with a doctor's recommendation. Unfortunately, I still encounter many people who are surprised to learn that those protections don't go as far as they had imagined.

If you're found in possession of a significant amount of marijuana or if you are caught cultivating more than 6 plants at a time, you should expect to be arrested. You should also expect that the police will seize your cannabis and your growing equipment. They will claim that the property is intended for illegal distribution and thus, it is contraband (because, as stated above, commercial marijuana is still highly regulated).

Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges. Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your cannabis and your expensive growing equipment.

That's where I step in.

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

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

First, we must show that you are lawfully entitled to possess marijuana. This used to mean proving that your doctor had actually recommended the use of medical marijuana to treat some serious medical condition. Today, it just means that you are over 21 years of age and that the quantity found in your possession was not "excessive".

After we prove that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case. Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil without the appropriate permits). Talk to your attorney about any potential risks involved with petitioning for the return of your medicine. By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than the legal limit or that you were involved with illegal distribution.

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

The fight for marijuana rights in California has been long and hard-fought. For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief. We've come a long way since voters approved medical marijuana in 1996. Cannabis continues to gain acceptance and consumers are winning more protections with each courtroom victory. Unfortunately, many law enforcement agencies refuse to recognize this progress. Some police departments are still trained to believe that cannabis is inherently dangerous. They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights. Too often, they're right. Don't let them get away with this. If police are running roughshod over your rights, hold them accountable. Take a principled stand, demand the return of your property and let them know that it's time to stop abusing cannabis consumers in California.

If police have seized your medical marijuana, call our office for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

Friday, March 20, 2015

How to Get (or Fight) a Restraining Order in California: Part 3 -- Advanced Edition

Welcome to part 3 of my series covering restraining orders in California.  In this post -- the Advanced Edition -- I want to dig a little deeper into some of the specific questions you might have as you prepare for your big day in court.

If you haven't already, please take a moment to read parts 1 and 2 in the series, available at these links: How to Get (or Fight) a Restraining Order: Part 1; and How to Get (or Fight) a Restraining Order: Part 2.  In my first post, I explained some of the basics about how the entire process works. In the second part of the series, I gave some practical tips and advice to help you prepare for your court hearing.

Today's post is devoted to answering some frequently asked questions.  As always, please feel free to comment if you feel I've missed anything or if you have questions that I didn't answer.

What is an "injunction" and what does it do?

An injunction is a court order to do (or not to do) a specific thing.  A restraining order is one type of injunction that prevents, or "enjoins" the restrained party from coming near the protected party.  It may also enjoin the restrained party from having any sort of contact with the protected person, including telephonic or electronic contact, or even passing a message to the protected person through a 3rd-party intermediary.

What is the purpose of an injunction?  Will the court issue an injunction as a form of punishment?

An injunction may only be issued to prevent some future harm, NOT to correct some wrong that has already occurred.  The court will not order an injunction to punish someone for past bad behavior. Keep in mind, though, that a pattern of bad behavior in the past may be used to show that bad behavior is likely to continue in the future.

What if the "harassment" occurred a long time ago, or only on a single occasion?

Courts have ruled that, in order to justify the issuance of a restraining order, the harassment must be ongoing at the time the injunction is sought -- or else there must be some showing that future harassment is highly likely.  As mentioned above, a pattern of past bad behavior may cause a judge to reasonably suspect that bad behavior is likely to continue in the future.

Courts of appeal have also ruled that a single incident of violence in the past does not justify the issuance of a restraining order, unless the petitioner can prove that violence is likely to happen again.  Many judges don't seem to understand this simple principle.  I see a lot of judges who will automatically grant a restraining order whenever a petitioner can prove that violence has occurred in the past.  This is improper.  A good attorney should be prepared with relevant case law to help the judge understand this basic rule.

If you are seeking a restraining order, it is important to file your petition immediately.  Waiting weeks or months will seriously hurt your case.

As a landlord, may I use a restraining order to evict a tenant?  May my landlord use a restraining order to evict me?

It depends.  There is a process for evicting bad tenants, but a restraining order is not usually the best way to go.  Courts are generally reluctant to order someone out of his or her home.

If your tenant is falling behind on rent, damaging your property, bothering other tenants, or generally failing to abide by the rental agreement, you should consider filing an "unlawful detainer" suit to evict him or her from the property.  Unlawful detainer actions are based on the contract that you both entered into.  At these proceedings, the court is primarily concerned with whether or not the tenant has breached the contract.  Usually, it is easier for a landlord to prove a breach of contract than it is to prove civil harassment.

The court will only use a restraining order to evict a tenant if the landlord can prove that the tenant's mere presence on the property causes substantial emotional distress to the landlord, or that the tenant's presence on the property is intended to harass the landlord.

If the landlord actually lives on or near the property, he might have a more compelling argument that the tenant's mere presence causes him to suffer some emotional distress.  If the landlord lives elsewhere and only comes around to collect rent, then the court is likely to side with the tenant. Other civil remedies might still be available to the landlord in that case, but pursuing a restraining order is likely a waste of time and resources.

If you're dealing a bad tenant, you should file an unlawful detainer action before you petition for a restraining order.  Similarly, if your landlord is attempting to use a restraining order to evict you from your housing, you and your attorney should be prepared to argue that your landlord is abusing the process by filing a restraining order for an improper purpose.

What kinds of evidence can / should I present at my hearing?

You can and should present any evidence which is relevant to the issue that the court is addressing.  Remember, the issue is limited to this: has the petitioner been the victim of civil harassment?  As mentioned in previous posts, the judge does not care about anything else, no matter how important some other issues might be to you.  Do not waste your time and the court's with arguments that you are a nice person and the other party is a jerk (or that you have done nice things for the other party in the past, or that the other party has lied about something irrelevant in the past, or that the other party is an alcoholic, etc.)

If you allege that someone has been sending you harassing emails and text messages,  you should bring copies of those messages.  If you allege that someone has been calling you repeatedly, you should bring your phone records.  Any records that you want to present at the hearing should be in paper form.  These records are going to become "exhibits" and they need to be placed into the court's file.  Do not simply hold up your phone to show the judge your call log. Your phone cannot be filed as evidence.

As mentioned in my previous posts, you may bring witnesses if they actually saw the things that you allege occurred (or if they will provide an alibi to prove that you did not do the things alleged). If you intend to present witnesses, you should have them subpoenaed.  An attorney can help you with the process of issuing subpoenas.

Written "affidavits" and "declarations" from witnesses may be admissible in some restraining order hearings, but live witnesses are preferable. Those documents are technically hearsay, but appellate courts have ruled that hearsay may be admitted in restraining order hearings, subject to some complicated rules and exceptions.

If you allege that you have been the victim of violence, threats or other harassment, the judge will want to know whether or not the police were involved.  If they were, you should bring copies of any incident reports that police prepared.  You may also subpoena any officers who were involved to testify on your behalf.  As mentioned in a previous post, there is a process for issuing a civil subpoena to a law enforcement officer.  There may also be a fee involved to compensate taxpayers for the value of the officer's time.

What kinds of defenses are available to fight against a restraining order?

The burden is entirely on the petitioner to prove "by clear and convincing evidence" that harassment has occurred.  The respondent does not have to prove anything, he only has to show that the petitioner's case is neither "clear" nor "convincing".  Of course, the defense is even stronger if the respondent can prove that harassment did not occur, but it may be difficult to prove a negative.

A qualified attorney should be well-versed in cross-examining a witness to get to the truth of the matter.  Your lawyer should request that all witnesses be excluded from the courtroom when they're not testifying so that they may not tailor their stories to match the testimony of the witnesses before them.

Often, when a respondent has acted badly in the past or done things that he's not proud of, he may be able to prove that he had a lawful purpose for engaging in that conduct.  Speak with a lawyer to determine whether or not your purpose is actually "lawful" and whether or not it constitutes a defense to a restraining order.

Even when it can be shown that the respondent has behaved badly and engaged in a course of conduct that meets the legal definition of "harassment", he may still prevail if he can convincingly demonstrate that the bad conduct is unlikely to occur again in the future.  Restraining orders are not intended to punish a person for bad behavior in the past -- they're intended to prevent some harm that's likely to occur in the future.

If you've been the victim of harassment or you've been served with a restraining order, call us for a free attorney consultation.  We have extensive experience litigating in all Southern California courts on both sides of restraining order cases.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Wednesday, March 18, 2015

How to Get (or Fight) a Restraining Order in California: Part 2

I have previously written about the process of applying for (or fighting against) restraining orders in the State of California.  I described the nuts and bolts of preparing the petition, having the proper documents served on the opposing party and filed with the court, and appearing before a judge for a series of hearings on the matter.  That post is available here.  Part 3 in this series is available here.

Today, I wanted to discuss the strategy involved in preparing for your big day in court, along with a few things to keep in mind when you're in front of the judge.  I have assembled some helpful tips based on my experiences litigating on behalf of clients both for and against restraining orders.

Know Your Judge

The first thing I want to emphasize is the unique nature of restraining order proceedings.  These hearings are really unlike any other type of court hearing that you might have previously been involved with.

One thing that makes these hearings so unique is their informality.  While the typical rules of evidence and civil procedure still apply, judges often adopt their own courtroom policies to streamline the process and to hear a large number of cases in a limited number of courtrooms.

Every judge in every courtroom has his or her own daily routine for calling cases, hearing evidence and issuing rulings in a timely manner.  Being familiar with your judge's personal style will give you a huge advantage over your opponent.  If you've never appeared before a particular judge, you should strongly consider hiring an attorney who has.  In the alternative, you should make time to sit in and observe a day of proceedings before your court date.  Pay attention to types of arguments that the judge finds persuasive.  Being familiar with your judge and the court rules will also help you feel more confident and relaxed when it's your turn to present your case.

If you read my previous post about restraining orders (available by clicking the link, above), you know that the judge is looking for "clear and convincing" evidence of harassment.  If the petitioner is able to prove that he or she has been the victim of harassment, then the petitioner wins.  The law defines "harassment" as 1) violence, 2) credible threats of violence, or 3) a course of conduct, directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose.  That last part ("...that serves no legitimate purpose") is the wild card.  Judges have very different opinions about what does and does not constitute a "legitimate purpose".  For example, some judges feel that debt collection is a legitimate purpose.  Others disagree.

Abe owes Ben some money and Ben calls Abe repeatedly, asking to be repaid.  Abe is annoyed and alarmed by the repeated phone calls.  He asks Ben to stop calling him, but Ben starts showing up at his home and place of work.  Abe finally petitions for a restraining order against Ben.  Should the order be granted?

Some judges will find that Ben has engaged in a course of conduct, directed at Abe that seriously alarms, annoys and harasses Abe and that serves no legitimate purpose.  If Ben feels that Abe owes him money, he should sue Abe.  Other judges are likely to find that debt collection is a legitimate purpose, as long as no violence is used or threatened.  Being familiar with your judge and his / her opinions on the subject will give you an advantage by allowing you to craft your arguments accordingly.

Be Prepared

Proper preparation will also give you an advantage over your opponent.  This includes bringing any necessary documents to court with you for your hearing.  These documents may include phone records, copies of text messages and emails, photos of anything relevant and witnesses who will testify on your behalf.

If you have witnesses who will corroborate your side of the story, it is important that they personally appear for the hearing.  The judge may  have probing questions for this witness, so make sure you have a very clear idea of what he or she will say under examination.  You don't want to be surprised by anything.

If you intend to present witnesses, you should have those witnesses subpoenaed.  A subpoena is an order to attend court.  If you fail to issue a subpoena and the witness doesn't show up to court, you are out of luck.  You may ask for a continuance, the judge is likely to deny your request if you can't show that you did your due diligence by properly issuing a subpoena to ensure the witness's presence.

There is a process (and a fee) for issuing subpoenas to police officers who you want one to testify on your behalf.  It's a little complicated, but an attorney can help.

Consult With an Attorney

This is part of "being prepared".  Some people will appear at their restraining order hearings represented by counsel.  Others will come alone.  Of course, being accompanied by a qualified, local attorney is the best way to ensure that your case gets a compelling and convincing presentation.

A lawyer will understand the rules of evidence -- what is admissible and what is not.  Your attorney will draft the necessary documents and properly serve them on the opposing party.  He or she will issue subpoenas and prepare witnesses.  Your lawyer will make sure that you understand the important issues and that those issues are communicated to the court in a clear and concise manner. He or she should allay your anxiety and give you a confident peace of mind in knowing that things have been done correctly the first time.

Stay on Topic

This is the best advice I have for anyone involved in either side of a restraining order hearing.  I saved it for last.  Think of this tip as "dessert" -- your reward for reading my entire post.

Remember, as I mentioned above, the issue at a restraining order hearing -- the only issue -- is whether or not the petitioner can prove by clear and convincing evidence that he or she has been the victim of harassment.  That's the question that the judge must answer, and that's the only thing that the judge cares about.

The judge does not care if you're a good person.  The judge does not care if the other party is a bad person.  The judge does not care if the other party deserved whatever you did to him.  The judge does not care if the other party has lied about something irrelevant in the past.  The judge does not care if you've done nice things for the other party in the past, or if the other party has done mean things to you.  Do not waste the judge's time (and your own) with these types of arguments.  There are a lot of other cases on calendar and the judge is not interested in hearing irrelevant testimony, no matter how important these issues are to you.

Any time that a relationship devolves to the point where one person files a restraining order against another, it's safe to assume that both parties are angry about a lot of things.  You might have a lot that you want to get off your chest, but the courtroom is not the place to air these grievances. When you go off topic, the judge loses interest and you risk burying your good arguments in a pile of bad arguments.

Everything you say, every piece of evidence you present and every witness you call should be directly related to proving that harassment has (or has not) occurred.

If you or a loved one has questions about a restraining order, call my office for a free attorney consultation. Our expert staff has an excellent track record in litigating restraining orders all over Southern California.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

Tuesday, March 17, 2015

The Brag Board: Recent Success Stories

Until recently, I kept a running list of my success stories on my website, here.

The list is starting to get a little unwieldy, plus it's majorly inconvenient to edit the website every time I want to brag about the outcome of a case. For the sake of simplicity, I'll be posting (and boasting) here on the blog whenever I have some good news to share. For confidentiality, I've replaced the names of clients with initials.

These are few cases of which I'm particularly proud. These cases may or may not be similar to your case. Each case is unique and turns on its own specific facts. These success stories are not guarantees or predictions of future success. No attorney can accurately predict how your case will turn out without thoroughly reviewing the relevant facts and evidence.

People v. L.S. (hit & run in Riverside):  Case dismissed for violation of defendant's right to a speedy trial.  The violation occurred in 2012, but the DA failed to properly notify the defendant that a case had been filed against him. A warrant was outstanding for over 2 years before the defendant learned about his active case.

T.V. v. J.M. and related case of J.M. v. T.V. (Restraining orders in Southwest Riverside County):  I represented T.V. and successfully petitioned for a restraining order against her neighbor, J.M. J.M. then filed for a restraining order against my client, which we successfully defended (2 for 2).

S.T. v. G.P. (Restraining order in Torrance):  Successfully defended against a restraining order that my client's ex-girlfriend had filed.  She claimed that he was stalking her and sending harassing messages, but her story did not hold up under examination.

J.G. v. A.B. (Restraining order in Newport Beach):  Client's former roommate claimed he was harassing and stalking her. Successfully defended against her petitions for restraining orders (twice).

I hope to have more success stories posted here soon. If you or a loved one is accused of a crime or you have questions regarding a restraining order, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton Defense Attorney