Tuesday, December 29, 2015

DUI in a Golf Cart? And Other Surprises from Catalina Island

The Catalina Island Courthouse, Avalon, CA

Section 23152 of the California Vehicle Code makes it a misdemeanor to operate any motor vehicle while the you are "under the influence" of alcohol or drugs. Many of my clients are surprised to learn that golf carts are considered "motor vehicles" under California law. Yes, you can be arrested for DUI on a golf cart.

This situation arises frequently on Catalina Island. The island allows very few gas-powered vehicles, so most locals and tourists navigate around the town of Avalon in electric carts. Avalon is a resort town, nestled beside pristine beaches. It attracts tourists from around the world, who come to admire its natural beauty, do some fishing, rent a golf cart, and drink like it's a contest. Unfortunately, many of these visitors end up calling my office after they get arrested for DUI.

If you are convicted of DUI on Catalina, get ready for surprise #2. The city of Avalon (and the rest of Catalina Island) are part of Los Angeles County. For the past few years, LA County has been participating in a pilot program that requires all first-time DUI offenders to install Ignition Interlock Devices in their vehicles before they can reinstate their drivers' licenses. An Ignition Interlock Device, or "IID", is a little breathalyzer that a driver must blow into before his or her car will start. This rule applies regardless of where the defendant lives (even if you live outside of LA, but your DUI occurred anywhere within the county of Los Angeles). If you're convicted of a golf cart DUI on Catalina Island, your driver's license will be subject to the IID restriction.

If you are arrested for DUI on a golf cart in Catalina, call us for a free attorney consultation. In most cases, we can make your court appearances for you so that you don't need to make an expensive trip back to the island. Our goal is always to protect your rights, save you money, and make the whole process as stress-free as possible for you. 

Cited for illegal fishing on Catalina? Catalina Island and its surrounding waters are home to several "marine protected areas", including state and federal "marine reserves", "conservation areas" and "special closures". If you received a ticket from local wardens of the California Dept. of Fish & Wildlife, you probably also got some bad legal advice. You might have been told that you could simply appear at the Long Beach Courthouse at your convenience to address the matter. In most cases, this is false. If the Los Angeles District Attorney files misdemeanor charges against you for fishing in a protected area, you (or your attorney) must appear before a judge in Catalina.  

And you may not simply appear "at your convenience". The citation you received probably says that you must appear in court "on or before" a particular date. The Catalina courthouse, however, is only open on alternating Fridays. If you show up when court is not in session, you will find a dark building with a locked door.  

Fishing citations in Catalina are almost never processed by the date printed on your citation. If you invest the time and money to appear in court as instructed, there's still a significant chance that your case will not be listed on the day's calendar. Another wasted trip.  

As Catalina Island's leading private attorney, I can make your appearances so you don't have to deal with the hassle. Of course, there are worse places to spend a day, but making the trip to Catalina is an expensive hassle that you don't need.  

If you or a loved one has been cited or arrested on Catalina Island, call us to speak with a local attorney. Consultations are always free.  (714) 449 3335. Ask for John. 

Thanks for reading.  

Monday, December 28, 2015

New California Gun Laws Take Effect in 2016

Cool picture stolen from activistpost.com

California already has some of the most complicated, restrictive gun laws in the United States. Our long list of no-nos is about to get a little longer in 2016.  Here are some of the new anti-gun laws that are slated to take effect:

Gun Violence Restraining Orders

I've previously written about Gun Violence Restraining Orders on this blog.  That post is available here.  California courts will begin issuing Gun Violence Restraining Orders on January 1, 2016.  As their name implies, GVROs will have the effect of prohibiting certain individuals from owning or possessing firearms and ammunition.  Immediate family members may petition the courts for a GVRO if they believe that a subject poses a serious danger to himself or others.  Unlike other types of restraining orders, the new law will also allow police officers to directly file petitions in civil court to strip individuals of their gun rights.  

If you've ever been involved in a restraining order case, you know just how arbitrary and capricious the process can be.  Each side usually has about 2 minutes to present their arguments to a judge, often without the assistance of an attorney.  Parties are unprepared and nervous.  They don't fully understand the issues and the rules of evidence.  Their witnesses fail to appear.  Their best evidence is inadmissible.  A judge has to make a ruling on the spot, sometimes based on a "hunch".  Starting 1/1/16, courts will have another tool for stripping your 2nd Amendment rights.  

Gun Violence Restraining Orders might save lives.  They might not.  Of course, gun violence is already illegal, but criminals don't seem to mind breaking the law.  That's what makes them criminals.  One thing is for sure: the new law will clog the courts and keep lawyers (like me) busy. It will be applied arbitrarily and it will make great blog fodder.  Stay tuned to see how it plays out.  

New Government Regulations for BB Guns and Other Toy Weapons

California will impose new rules on airsoft weapons and other toy guns in 2016.  The law will also be amended to include BB guns within the definition of "imitation firearms".  All toy guns, including BB guns, will be subject to new rules regarding their coloration.  Current federal regulations mandate that toy guns must include a distinctive, blaze orange ring around the muzzle (the opening of the barrel, commonly known as the "business end").  In addition to that requirement, BB guns and other toy guns sold in California will be required to feature blaze orange coloration around the trigger guard and the circumference of the pistol grip, or else the entire exterior surface of the toy must be brightly colored or completely transparent.  

This new rule is obviously intended to prevent cases in which police officers shoot children because they mistakenly believe that the child's toy is a real weapon.  To my knowledge, such tragedies have occurred twice in the past several years -- once in California and once in Ohio. Meanwhile, 16,000 arthritis patients die from the toxic effects of Aspirin and other anti-inflammatory drugs every year in the United States.

The new law about brightly-colored toy guns was obviously authored by someone who has not followed the latest trends in gun ownership.  In the past couple years, gun ownership among women has skyrocketed.  Gun manufactures have responded to the new demand by specifically designing guns for the female demographic.  These guns are...wait for it...brightly colored!  If lots of real firearms are now being manufactured in bright colors, requiring toy guns to also feature bright colors seems to miss the point. Here's a picture of the new .38 special from Charter Arms:  

Promotional photo from budsgunshop.com

Concealed Weapons on Campus

The biggest head-scratcher of all these new California gun laws is SB-707.  That law will prohibit concealed weapons permit-holders from carrying firearms onto the campus of any school or university.  A violation may be punishable by up to 4 years in prison. 

I'm still wrapping my head around this one.  If there was some rational reasoning behind the law, this is the part where I would try to explain it.  There have been plenty of instances over the past few years wherein a deranged madman has perpetrated a mass shooting on the grounds of a school. To my knowledge, exactly zero of them have been licensed concealed weapon permit-holders. They have all been criminals who obviously weren't deterred by existing laws against murder.  

The new law will apply exclusively to law-abiding adults who have undergone extensive background checks.  It will not prevent lunatics from bringing assault rifles into classrooms; it will only prevent victims from defending themselves.  

If you or a loved one has questions about gun laws in California, call our office for a free attorney consultation.  We might not like them, but we understand the goofy rules that govern gun ownership in the Golden State.  (714) 505-2468.  Ask for John.

Thanks for reading.

Santa Ana Gun Lawyer

Tuesday, December 22, 2015

Clean Up Your Criminal Record

If old criminal convictions are haunting you and making it difficult to find a job (or a better job), you may be eligible for an expungement, or a reduction of the charge from a felony to a misdemeanor.  You might even be entitled to have your entire arrest record sealed from the public.

Dismiss Old Convictions

California law allows individuals to have old cases dismissed after they finish serving probation.  Once your case is expunged, you can honestly say that you have no criminal convictions in your background.  An expungement does not erase or seal your criminal record, it simply changes the record so that the case shows up as a dismissal rather than a conviction.  Employers may not legally discriminate against job applicants whose cases have been dismissed (in most cases).

There are lots of criteria that you must meet before the court will grant an expungement.  For example, you cannot have any other open, pending criminal cases, and you cannot be currently on probation.  Call us for a free evaluation to discuss your eligibility for an expungement.

Terminate Probation Early

If you ARE currently on probation, you may apply to terminate your probation early.  Section 1203.3 of the Penal Code gives judges in California the authority to release you from probation at any time. Judges are looking for "good cause" to do so.  "Good cause" usually means some compelling argument that the deal you previously accepted is no longer fair, or some showing that the interests of justice would be served by granting you leniency.  Once a judge agrees to cut your probation short, then you may immediately become eligible to apply for an expungement.

Judges are usually reluctant to release defendants from probation early, so it helps to have a qualified, local attorney help prepare your 1203.3 petition.  A qualified, local attorney (like myself) understands how to present your argument so that the court is likely to grant your request.  

Clear Old Warrants

If your performance on probation has been less than excellent, or if you have outstanding warrants, call us to discuss your options.  Unfortunately, old warrants will never simply go away on their own.  They will continue to plague you until you take some steps to resolve the issues.  The longer you wait to address your warrant, the less sympathy you're likely to receive from a judge.  The statute of limitations does not apply to active warrants.

There may still hope, though, to recall your old warrant and to get you back onto your feet without necessarily going to jail.  Stop procrastinating and looking over your shoulder -- clear up your old warrants so that you can get on with your life.

Reduce a Felony to a Misdemeanor

California law also provides a few different procedures for reducing old felony convictions to misdemeanors.  Under PC 17(b), a judge can retroactively reduce some "wobblers" (like domestic violence or possessing a dangerous weapon) in the interests of justice.  A "wobbler" is a crime that can be charged as either a misdemeanor or a felony at the discretion of the prosecutor.  If you were convicted of a wobbler as a felony, section 17(b) of the Penal Code could provide an opportunity to get that felony off your record.  17(b) reductions can even restore firearms rights in some cases.  If you have an old wobbler on your record, call us to see whether or not you might qualify to reduce that charge to a misdemeanor.

Prop. 47 provides another opportunity for individuals to reduce some felony convictions to misdemeanors.  Since voters approved that measure, many crimes that were formally classified as felonies or wobblers have now been reclassified as ordinary misdemeanors.  If you have old felony convictions for theft, drug possession, fraud, forgery, receiving stolen property, commercial burglary or writing bad checks, you might qualify for a reduction under Prop. 47.

Since Prop. 64 legalized the cultivation, use and possession of marijuana in California, people with old marijuana-related convictions may also apply to have those charges reduced or dismissed under a separate procedure.

Seal Arrest Records

Since January 1, 2018, Californians can even apply to have their old arrest records sealed.  The procedures described above can change your record of criminal convictions so that cases show up as misdemeanors rather than felonies, or so that those cases appear as "dismissals" rather than "convictions".  PC 851.91 now goes one step further -- eligible applicants can hide the fact that they were ever even arrested.

If you or a loved one has questions about clearing old warrants, cleaning up your criminal record, reducing old felonies to misdemeanors, or sealing your arrest record, call our office for a free consultation.  (714) 449-3335.  Ask for John.

We have extensive experience helping our clients get back onto their feet in Orange County, Los Angeles, Riverside and San Bernardino.

Thanks for reading.

Thursday, December 17, 2015

Gun Violence Restraining Orders in California

Since 2016, courts in California have been issuing "Gun Violence Restraining Orders".

The procedures are similar to those that apply in cases of domestic violence, elder abuse and civil harassment, with a few notable exceptions.  

What is a Gun Violence Restraining Order?

As its name implies, a Gun Violence Restraining Order may prohibit a specific individual from owning or possessing firearms and ammunition. The person seeking the order is called the "petitioner". The subject of the order is called the "respondent".  

A judge will grant a Gun Violence Restraining Order if the petitioner can prove 2 things:

1)  That the respondent poses a significant danger of personal injury to himself and / or others by having possession of a firearm, AND

2) That other, less-restrictive alternatives have been tried and found to be ineffective, or are inadequate and inappropriate for the circumstances.

If the order is granted, the subject must surrender all firearms and ammunition in his possession to the local police or he may sell them to a licensed firearms dealer within 24 hours.  

Who may apply for a Gun Violence Restraining Order?

Immediate family members of the subject are the only people who may petition the court for a gun violence restraining order. "Immediate family members" are defined as the subject's spouse, domestic partner, parent, child, sibling, household member, or person who had resided in the subject's household within the prior 6 months.  

At the moment, the law does not allow for girlfriends, boyfriends, classmates, coworkers or other associates to petition for gun violence restraining orders if those people do not currently live with the subject and have not lived with the subject during the previous 6 months.  

One area in which gun violence restraining orders differ from other types of restraining orders: Police may directly file their own petitions for gun violence restraining orders against individuals. With other types of restraining orders, the person who has been the victim of harassment must petition the court on his or her own behalf.  

What is the procedure for obtaining a Gun Violence Restraining Order?

A judge may issue a temporary emergency Gun Violence Restraining Order if a police officer asserts, and the court finds, that "reasonable cause" exists to believe that the subject poses an immediate danger to himself or others, and that less-restrictive alternatives are inadequate. A temporary emergency order may remain in effect for up to 21 days. After 21 days, the temporary order expires. 

The court may also issue an "ex parte" order upon the application of a police officer or an immediate family member of the subject. At the initial hearing on an ex parte order, the petitioner makes his or her arguments to a judge, but the respondent has no legal right to any "notice" or opportunity to present his own argument.

If the judge grants an ex parte order, then the respondent must immediately surrender any guns or ammunition in his possession. The court must schedule another hearing within 21 days, at which time the subject WILL have a chance to present his own side of the story and argue his case. At the hearing, the petitioner bears the burden of proving any allegations by "clear and convincing evidence".

After hearing arguments from both the petitioner and the respondent, the judge will decide whether or not to grant a gun violence restraining order for up to one year. 

What criteria will a judge consider at the hearing?

Section 18155 of the California Penal Code lists several criteria that a judge may consider in determining whether or not the respondent poses a "significant danger of personal injury to himself or others". Most of these criteria are pretty intuitive: the person has recently made threats of violence against himself or others, the person has engaged in a pattern of violent acts within the previous year, or has a history of recklessly brandishing weapons, etc.  

Some of the criteria, though, make almost no sense. For example, PC 18155(b)(1)(G) says that a judge may consider evidence that the respondent has acquired firearms or ammunition within the previous 6 months as proof that the person poses a "significant danger". Think about that for a second: purchasing a firearm and / or ammo may be considered proof that a person should not be allowed to possess firearms and / or ammo.

This new package of laws only took effect recently, so courts haven't had a chance to reinterpret all of the nuances. I have a lot of questions about how this will play out in practice, but all we can do is wait and see right now.  

Everybody likes the idea of taking guns away from bad guys, but nobody likes "big government" arbitrarily curtailing our Constitutional rights. Stay tuned to see how this plays out.  

If you or a loved one has questions about Gun Violence Restraining Orders in California, call for a free attorney consultation.  (714) 449 3335. Ask for John.  

Thanks for reading.  

Thursday, December 3, 2015

New Regulations for Medical Marijuana in California

I've previously written on this blog about the big changes that are coming for medical marijuana in California.

It's taken some time, but I've finally had a chance to study these new laws and really wrap my head around the details.  Of course, these rules haven't taken effect yet, so the courts haven't had a chance to muddy the waters by completely reinterpreting everything that we thought we understood.  There are still plenty of unanswered questions, but I'll try to break it all down as well as I can here.

As mentioned in my previous post, available by following the link above, Governor Brown has signed a package of bills that will completely reshape the way we regulate medical marijuana in California.  Everything that you know about medical marijuana in California will be wrong after January 1, 2016.  The three new laws, SB-643, AB-266 and AB-243, will collectively be called "The Medical Marijuana Regulation and Safety Act", or "MMRSA".

State-Issued Marijuana Licenses

The MMRSA creates at least 17 different types of state-issued licenses that will be required for various commercial activities related to medical marijuana.  Those activities include cultivation, manufacturing (the process of concentrating cannabis to produce a more potent product), transportation, distribution, testing and retail sales.

The new law will establish 10 different types of licenses to specifically govern growing operations, depending on the size of the grow and the type of light used:

1) "Specialty" Outdoor:  For outdoor growing operations using no artificial lights.  Total cultivation area will be limited to 5,000 square feet, or 50 total plants on non-contiguous plots

1A)  "Specialty" Indoor:  Limited to 5,000 square feet with artificial lights

1B)  "Specialty" Mixed Light:  Mixed  light (natural and artifical), limited to 5,000 square feet

2)  "Small" Outdoor: For outdoor growing operations with no artificial lights, 5,001 - 10,000 square feet

2A)  "Small" Indoor:  Indoor growing operations, 5,001 - 10,000 square feet

2B)  "Small" Mixed Light:  Mixed light, 5,001 - 10,000 square feet

3)  Outdoor: no artificial lights, 10,001 square feet, up to one acre

3A)  Indoor: 10,001 - 22,000 square feet

3B)  Mixed Light: 10,001 - 22,000 square feet

4)  Nursery:  To cultivate seeds, seedlings and immature plants only.

Only a limited number of Type 3, 3A and 3B licenses (for larger-scale growing operations) will be issued by the Department of Food & Agriculture.

The MMRSA also creates 2 different types of "manufacturing" licenses.  A "Type 6" license will qualify the holder as a "manufacturer 1".  A manufacturer 1 may produce concentrates without using volatile solvents (e.g. "bubble hash").  A "Type 7" license will qualify the holder as a "manufacturer 2".  A manufacturer 2 may produce concentrated cannabis products using volatile solvents (e.g. butane hash oil), which is currently prohibited under California law.

All marijuana products must be delivered to a distributor for inspection.  After inspecting the product, the distributor must deliver the cannabis to a licensed testing facility for certification before it may be delivered to a retailer.  Testers must hold "Type 8" licenses.

Retail marijuana dispensaries with more than 3 locations will be required to hold "Type 10" licenses.  Marijuana retailers with 3 or fewer dispensary locations may operate with a "Type 10A" license.

Distributors (wholesalers), who purchase marijuana from cultivators and resell the products to retailers, must hold both a "Type 11" distributor's license, and a "Type 12" transporter's license. People who are engaged only the business of marijuana transportation must hold a "Type 12" license and may also apply for a "Type 11" distribution license.

Confused yet?  Here's where it gets interesting.

No license holder may possess more than 2 different types of licenses.

Small-scale cultivators (growers who are licensed to cultivate on 10,000 square feet or fewer) will also be permitted to hold manufacturing licenses.  This means that mom-and-pop grow operations can produce their own concentrates.

Small-scale cultivators may also apply for Type 10A licenses to operate their own boutique retail sales at 3 or fewer locations.  Remember, though, that license holders may only possess 2 different types of licenses. Essentially, growers who cultivate on 10,000 square feet or fewer may either produce their own concentrates or operate their own boutique retail sales, but not both.

Manufacturers may hold Type 10A licenses to operate 3 or fewer retail dispensaries.  Get ready for high-end, branded hash to come to a retail location near you!

That's just the tip of iceberg.  Stay tuned for updates.  I will continue to post regularly with more details about the licensing process as those details become available.

If you're thinking about getting involved in California's medical marijuana industry, call us for a free consultation.  (714) 505-2468.  Ask for John.  If you already cultivate medical marijuana or operate a dispensary, call us to discuss the steps you need to be taking to prepare for these big changes.

Thanks for reading.

Santa Ana Medical Marijuana Lawyer

Tuesday, December 1, 2015

Brag Board: 12/1/15

I know, my blog can be a downer.  Most days, this is a place for sad stories about people who have made big mistakes. Sometimes, I like to sprinkle in a few helpful tips about appearing in court, or maybe some sage advice about medical marijuana or something.

Periodically, though, I like to update this blog with some good news.  These are the success stories, and they're the reason that I love my job.

I'll be honest -- criminal defense practice can be soul-crushing sometimes.  Nobody comes into my office because they're having a great day.  Clients always tell me, "It's nice to meet you", and I respond, "No, it's not".  It's these success stories, though, that remind me of why I do what I do. A little fulfillment at the end of the day makes all the hard work worth it.

-People v. R.A. (San Bernardino):  My client's parents called the police because he was acting erratically.  Police determined that he was under the influence of drugs and arrested him.  No blood sample was taken and the police reports were completely deficient.  There wasn't much hard evidence, just vague descriptions of some bizarre behavior.  Case dismissed.

-People v. D.R. (Riverside):  My client was accused of contempt because he had allegedly tried to call an ex-girlfriend in violation of a restraining order.  We were able to show that the accuser had a rich history of making false accusations against my client.  She had lied to obtain the restraining order in the first place, and  she had sent nude photos of herself to my client after she got a restraining order against him.  Case dismissed.

-People v. C.Y. (Newport Beach - Orange County):  My client learned that he had an outstanding warrant for driving on a suspended license.  He was surprised at this news because he had never been cited or arrested.  We were able to prove that my client had been the victim of identity theft. Someone else (a family member) had falsely identified himself to police using my client's name and birthday.  Case dismissed.

In each of these cases, prosecutors chose to file criminal charges without thoroughly reviewing the evidence or taking the time to fully understand the context of each situation.  People were arrested, spent time in jail, missed work, and forked out serious money to defend themselves against charges that never should have been filed.  Luckily, my clients had the resources to take a stand, defend their rights, and protect their reputations.

Many people who appear in court every day aren't so lucky.  Maybe they're intimidated by the justice system, so they accept bad deals.  Maybe they don't understand their options, or maybe their attorneys aren't willing to invest the time and effort that it takes to achieve a fair result.

I like to take credit for each of the dismissals described above.  I wish I could claim that I brilliantly outmaneuvered the DA or that I tricked their star witness into a dramatic courtroom confession, a la Perry Mason.  The truth is that I simply did what I always do -- I devoted the appropriate attention to each of my clients.  I took the time to understand the facts, and I communicated those facts to the DA.  Once prosecutors understood the cases like I understood them, they ethically and professionally dismissed the matters.

Here's the disclaimer: do not attempt this at home.  If you've been arrested or if you're under investigation for a crime, you should NEVER speak to police or the District Attorney on your own. They understand the law and the rules of evidence.  They are not your friends.  Their job is to put you in jail.  Anything you say will be twisted, misquoted and used against you.  They are highly-paid professionals.  You need a professional on your side.

If you or a loved one is accused of a crime in Orange County, Riverside, Los Angeles or San Bernardino, call our office for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.