The big news this week comes from the 9th Circuit Court of Appeals in California. The traditionally (notoriously?) left-leaning federal court delivered its second pro-gun ruling in as many weeks, and pundits on both sides of the gun control debate are losing their minds. Today, I want to spend a minute breaking down what this ruling actually means, and where we go from here.
On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii. The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public. The plaintiff in this case had applied for a license and been denied twice. He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.
To explain their reasoning, the majority cited the recent decisions in Heller and McDonald. Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense. In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public. Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection. States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.
The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule. Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter. If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again. Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.
For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses. It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.). Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State. It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too. If the ruling in Young withstands the next round(s) of appeals, that might change.
Stay tuned to see how this plays out.
If you or a loved one has questions about firearms and your rights in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Gun Lawyer
Thursday, July 26, 2018
Thursday, July 12, 2018
Get a Felony Off Your Record
A felony conviction will follow you around for the rest of your life, making it difficult (or impossible) to get a job, vote, join the military, earn a professional license, or purchase firearms. If you've been arrested or convicted for a felony in California, though, there may be options available to get that charge off your record.
If you are arrested and the DA declines to file charges, the mere fact that you were once arrested on suspicion of a felony can cause problems down the road. Luckily, California now provides a procedure to seal records if your arrest did not result in a conviction.
If you are charged with a felony, your attorney might successfully negotiate a plea deal for a reduced charge. Depending on the nature of the charge, the strength of the evidence, and your criminal history, the DA may eventually settle for a misdemeanor. In many cases, prosecutors try to gain bargaining leverage by alleging felonies when misdemeanor charges are really more appropriate.
PC 17(b)
When the DA is not willing to reduce a felony charge during plea negotiations, a judge may do so in some cases. In California, section 17(b) of the Penal Code gives judges the discretion to reduce some felonies to misdemeanors when doing so "serves the interests of justice". If your charge is eligible for a reduction, the judge can exercise that option at any point in the criminal process -- before trial, after trial, or even years after a conviction. If judge agrees to reduce your felony to a misdemeanor in the interests of justice under PC 17(b), that conviction will forever be considered a misdemeanor for all purposes. All rights are immediately restored, including the right to purchase and possess firearms.
Prop. 47
Since voters approved Prop. 47 in 2014, many crimes that were formerly classified as felonies or wobblers are now straight misdemeanors. If you were convicted of a qualifying felony, you may be eligible to retroactively reduce that conviction to a misdemeanor. Unlike a reduction under PC 17(b), though, a reduction under Prop 47 will not restore your right to purchase or possess firearms.
Prop. 64
Under Prop 64, many marijuana-related offenses were either abolished entirely or reduced from felonies to misdemeanors. Individuals who have old marijuana-related convictions may also be eligible to have those charges dismissed or reduced. If an old felony conviction is reduced or dismissed under Prop 64, you may become eligible to restore your gun rights.
PC 1203.4
The final option to clean up your criminal record in California is a PC 1203.4 Petition for Dismissal (commonly known as an "expungement"). Under PC 1203.4, you may be eligible to have an old case dismissed after you have successfully completed probation. If you were sentenced to prison, you are probably not eligible for relief under 1203.4, but there are some exceptions.
If you or a loved one has questions about cleaning up your criminal history or applying to have a felony removed from your record, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Expungement Attorney
If you are arrested and the DA declines to file charges, the mere fact that you were once arrested on suspicion of a felony can cause problems down the road. Luckily, California now provides a procedure to seal records if your arrest did not result in a conviction.
If you are charged with a felony, your attorney might successfully negotiate a plea deal for a reduced charge. Depending on the nature of the charge, the strength of the evidence, and your criminal history, the DA may eventually settle for a misdemeanor. In many cases, prosecutors try to gain bargaining leverage by alleging felonies when misdemeanor charges are really more appropriate.
PC 17(b)
When the DA is not willing to reduce a felony charge during plea negotiations, a judge may do so in some cases. In California, section 17(b) of the Penal Code gives judges the discretion to reduce some felonies to misdemeanors when doing so "serves the interests of justice". If your charge is eligible for a reduction, the judge can exercise that option at any point in the criminal process -- before trial, after trial, or even years after a conviction. If judge agrees to reduce your felony to a misdemeanor in the interests of justice under PC 17(b), that conviction will forever be considered a misdemeanor for all purposes. All rights are immediately restored, including the right to purchase and possess firearms.
Prop. 47
Since voters approved Prop. 47 in 2014, many crimes that were formerly classified as felonies or wobblers are now straight misdemeanors. If you were convicted of a qualifying felony, you may be eligible to retroactively reduce that conviction to a misdemeanor. Unlike a reduction under PC 17(b), though, a reduction under Prop 47 will not restore your right to purchase or possess firearms.
Prop. 64
Under Prop 64, many marijuana-related offenses were either abolished entirely or reduced from felonies to misdemeanors. Individuals who have old marijuana-related convictions may also be eligible to have those charges dismissed or reduced. If an old felony conviction is reduced or dismissed under Prop 64, you may become eligible to restore your gun rights.
PC 1203.4
The final option to clean up your criminal record in California is a PC 1203.4 Petition for Dismissal (commonly known as an "expungement"). Under PC 1203.4, you may be eligible to have an old case dismissed after you have successfully completed probation. If you were sentenced to prison, you are probably not eligible for relief under 1203.4, but there are some exceptions.
If you or a loved one has questions about cleaning up your criminal history or applying to have a felony removed from your record, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Expungement Attorney
Wednesday, July 11, 2018
How Much Marijuana Can I Legally Grow in California?
Marijuana is now legal in California for medical and recreational use, but there are still plenty of ways to get into trouble if you don't understand the rules. Police continue to make arrests, and prosecutors continue to file criminal charges when they catch people growing or possessing excessive amounts of cannabis. The amount that may be considered "excessive" depends on the circumstances, though.
Since voters approved Prop. 64, individuals may grow up to 6 marijuana plants on a parcel of land. The 6-plant rule applies to each piece of land, not to each adult who lives on the land. For example, if 4 adults live together in one house, they may cultivate a total of 6 plants in the yard, not 24 plants. They may give away small amounts to other adults, but they may not sell their crop or trade it for anything of value.
Local cities have specific rules about personal cultivation that may be more restrictive than the statewide rules. Some cities, for instance, prohibit outdoor cultivation, or require that growers employ certain security measures.
If you are a qualified medical marijuana patient (you have a valid doctor's recommendation to use cannabis), then you may grow and possess as much as your doctor says you need to treat your condition. Be very wary, though, of quack doctors who sell "99-plant recommendations" for an additional fee. If you get caught growing 99 marijuana plants, you will be arrested. If you plan to assert a medical defense, the doctor who wrote the recommendation must convincingly explain to the judge that he actually performed a good faith medical examination, and that he sincerely believes that you need 99 marijuana plants as medicine. More likely, that doctor will simply testify that he has no recollection of meeting you (if he appears in court at all).
To cultivate marijuana commercially (for sale, or more than 6 plants on one piece of property), you must hold a license from the Bureau of Cannabis Control. The BCC issues various types of cultivation licenses, depending on the size of the growing space and whether natural or artificial lights are used.
If you're interested in applying for a commercial cannabis license, or if you've been arrested for cultivating marijuana, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Since voters approved Prop. 64, individuals may grow up to 6 marijuana plants on a parcel of land. The 6-plant rule applies to each piece of land, not to each adult who lives on the land. For example, if 4 adults live together in one house, they may cultivate a total of 6 plants in the yard, not 24 plants. They may give away small amounts to other adults, but they may not sell their crop or trade it for anything of value.
Local cities have specific rules about personal cultivation that may be more restrictive than the statewide rules. Some cities, for instance, prohibit outdoor cultivation, or require that growers employ certain security measures.
If you are a qualified medical marijuana patient (you have a valid doctor's recommendation to use cannabis), then you may grow and possess as much as your doctor says you need to treat your condition. Be very wary, though, of quack doctors who sell "99-plant recommendations" for an additional fee. If you get caught growing 99 marijuana plants, you will be arrested. If you plan to assert a medical defense, the doctor who wrote the recommendation must convincingly explain to the judge that he actually performed a good faith medical examination, and that he sincerely believes that you need 99 marijuana plants as medicine. More likely, that doctor will simply testify that he has no recollection of meeting you (if he appears in court at all).
To cultivate marijuana commercially (for sale, or more than 6 plants on one piece of property), you must hold a license from the Bureau of Cannabis Control. The BCC issues various types of cultivation licenses, depending on the size of the growing space and whether natural or artificial lights are used.
If you're interested in applying for a commercial cannabis license, or if you've been arrested for cultivating marijuana, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Marijuana Lawyer
Tuesday, July 10, 2018
Can I Get a DUI on a Golf Cart in California?
Section 23152 of the California Vehicle Code prohibits anyone from operating a "vehicle" while impaired by drugs and / or alcohol. Under the law, "vehicle" is not limited to "gas-powered vehicle" or "automobile" -- the law just says "vehicle". Courts have determined that this includes any motorized vehicle, including golf carts.
Section 23152 of the Vehicle Code applies everywhere within the state of California, even on private property and off of public roads. You can be arrested for DUI in a dune buggy in the middle of the desert, or in a golf cart on a private golf course.
There's an important distinction when it comes to bicycles, though. Bicycles are not "vehicles" for the purposes of VC 23152. Instead, pedal-driven (non-motorized) bicycles are governed by VC 21200.5. That code section says that it is illegal to ride a bicycle while "impaired" by drugs and / or alcohol. The 0.08% BAC limit does not apply on bicycles. Rather than proving your specific blood-alcohol concentration, the DA must prove that you were dangerously drunk or impaired by drugs. If you are arrested on suspicion of cycling under the influence, you may demand a breath or blood test, but you are not required to provide one. VC 21200.5 only applies on public roads -- it is not illegal to get inebriated and ride a bike on private property in California. A conviction for "Cycling Under the Influence" carries much lower penalties than a DUI in a motor vehicle.
Mopeds and electric bicycles get even more confusing. Whether they're powered by gas or electric motors, motorized bicycles are both bicycles and motor vehicles. Which rule applies then? That depends on whether or not the motor is engaged. If the cyclist is riding under pedal power, then the bicycle is not considered a "motor vehicle" at the moment. A rider may legally pedal a moped or an electric bicycle on a public street while his BAC is greater than 0.08%, as long as he can do so safely. When the motor is engaged, though, mopeds and electric bicycles suddenly become "vehicles" and the 0.08% limit applies.
There are many possible defenses to charges related to driving or cycling under the influence, especially when unconventional "vehicles" are involved. If you or a loved one has been arrested for some DUI-related offense in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton DUI Attorney
Section 23152 of the Vehicle Code applies everywhere within the state of California, even on private property and off of public roads. You can be arrested for DUI in a dune buggy in the middle of the desert, or in a golf cart on a private golf course.
There's an important distinction when it comes to bicycles, though. Bicycles are not "vehicles" for the purposes of VC 23152. Instead, pedal-driven (non-motorized) bicycles are governed by VC 21200.5. That code section says that it is illegal to ride a bicycle while "impaired" by drugs and / or alcohol. The 0.08% BAC limit does not apply on bicycles. Rather than proving your specific blood-alcohol concentration, the DA must prove that you were dangerously drunk or impaired by drugs. If you are arrested on suspicion of cycling under the influence, you may demand a breath or blood test, but you are not required to provide one. VC 21200.5 only applies on public roads -- it is not illegal to get inebriated and ride a bike on private property in California. A conviction for "Cycling Under the Influence" carries much lower penalties than a DUI in a motor vehicle.
Mopeds and electric bicycles get even more confusing. Whether they're powered by gas or electric motors, motorized bicycles are both bicycles and motor vehicles. Which rule applies then? That depends on whether or not the motor is engaged. If the cyclist is riding under pedal power, then the bicycle is not considered a "motor vehicle" at the moment. A rider may legally pedal a moped or an electric bicycle on a public street while his BAC is greater than 0.08%, as long as he can do so safely. When the motor is engaged, though, mopeds and electric bicycles suddenly become "vehicles" and the 0.08% limit applies.
There are many possible defenses to charges related to driving or cycling under the influence, especially when unconventional "vehicles" are involved. If you or a loved one has been arrested for some DUI-related offense in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton DUI Attorney
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