Cited in Catalina: Summer 2019 Edition

It's been a busy summer in the Catalina Courthouse.  As always, our firm defended more criminal cases on the island than any other private firm (not the Public Defender Panel).  As the most experienced local attorneys in Catalina, we're also still covering cases for other lawyers who are unable to appear on behalf of their own clients on the island.

We got some great results this summer in cases involving controlled substances, illegal fishing, poaching abalone, drunk in public, battery, domestic violence, DUI, vandalism, theft, possession of controlled substances, and just about every other offense arising in and around Catalina Island.

And the season isn't over.  There are still a few big events and concerts slated for September and October (not to mention Buccaneer Days...).  If you're planning to attend one of these, save my number now (714) 449-3335.

As usual, the bulk of arrests in and around Catalina Island this year involved alcohol-related offenses.  "Drunk in public" charges are nothing new.  I keep trying to warn people, but nobody reads this blog until after they've been arrested -- authorities on Catalina treat "drunk in public" cases very seriously.  The LA Sheriff and the District Attorney prosecute these charges aggressively.  A simple PC 647(f) arrest in most places means a night in jail and a stern warning.  In Catalina, the same arrest can lead to probation, community service, mandatory AA meetings, high fines and even jail.  This is a shocker for attorneys who aren't familiar with the local "justice" system in Avalon.

Visitors also need to be aware that golf carts are considered "motor vehicles" in California.  That means the 0.08% blood alcohol limit applies.  Driving a golf cart while impaired by alcohol or marijuana is a DUI.  A lot of tourists learn this lesson the hard way every year ("But isn't that what golf carts are FOR?!?").

Fishing laws are just as complicated and DFW agents are just as aggressive as ever.  They're still busting unsuspecting fishermen who accidentally drift into protected areas, and they're still inspecting coolers for unidentifiable or undersized fillets.  If you are fishing in or around Catalina Island, take a good nautical map, a reliable GPS and an updated copy of the CA DFW fishing regulations.  We're getting close to lobster season, so expect game wardens to be on full-alert.

If you or a loved one has been cited or arrested on Catalina, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Arrested in Catalina -- What to Expect

If you found this blog, you're probably one of the hundreds of tourists every year who "have too much fun" while visiting Catalina Island.  Hopefully, I can answer some of your questions and give you a better idea of what to expect.

The most commonly-charged offenses on the island include drunk in public, DUI, domestic violence, possession of drugs, assault / battery and fishing violations.

Alcohol-Related Violations

Alcohol-related offenses are treated especially harshly in Avalon.  Local police and prosecutors have really made a concerted effort to maintain their "family friendly" reputation, and they've decided that this includes bringing down the hammer on alcohol offenders.

In most California courts, an arrest for being "drunk in public" means a night in jail and a stern warning.  In Catalina, though, you're looking at probation, CalTrans labor or some other community service, fines, mandatory alcohol counseling or AA meetings, and whatever onerous terms they can think to impose.

And remember, golf carts are considered "vehicles" under California law.  If you drink alcohol or consume drugs before operating an electric cart, you can be arrested for DUI.  These types of cases are common on the island.

Fishing Violations

Fishing laws are also a minefield for visitors.  Catalina Island is surrounded by a checkerboard of "marine life protected areas".  These sanctuaries are not marked and wardens do not issue warnings.  If you drift across the imaginary line into one of the protected areas, agents from the Dept of Fish & Wildlife will issue citations.  They will board your boat and search your cooler for contraband species and undersized fish.  You will be criminally prosecuted for every ticky tacky offense that they uncover, regardless of whether or not you knew that you were breaking the rules.
Possession of unidentifiable fish fillets are a big violation that snares a lot well-meaning anglers.  If you clean your fish at sea, remember to leave a 1" square of skin attached so that wardens can identify the species.

Possession of abalone can also be a major headache for divers around Catalina.  The minimum fine for possession of a single abalone is $10,000.  Once all the mandatory fees and court costs are included, the minimum fine jumps to over $60,000 for a first offense.  That's the MINIMUM.  Luckily, we have some tricks for negotiating these cases down to less than the minimum in most cases.

Logistics

The tiny courthouse on Catalina Island is open every other Friday, weather permitting.  Most of the week, the building is dark and empty.  They do not store any files on site.  If you appear in court on a date when they were not expecting you, they will not be able to help you.

To schedule a court appearance, you (or your attorney) must appear at the courthouse in Long Beach and coordinate with the clerks and prosecutors there to add your case onto the Catalina calendar for a date that is convenient for all parties.  Failure to follow all the appropriate steps will result in a wasted trip.

To make matters even more frustrating, cases on Catalina are often delayed or filed sometime after the date listed on your citation.  When that happens, you might spend the time and money to travel all the way back to Catalina, only to find out that your case has been rescheduled for next month.  Your case will not simply be dismissed.

If you've been cited or arrested while visiting Catalina Island, a private attorney (such as myself) can attend your court hearings without you being personally present in most cases.  There's no sense in traveling all the way back to the island for a series of routine appearances.  Let me save you the time, expense and hassle by appearing for you.  I can receive copies of police reports, negotiate with the DA and work to secure the best outcome possible for your case.

If you or a loved one was cited or arrested on Catalina Island, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Drunk In Public on Catalina Island -- What to Expect

In the 9 years that I've been serving clients in the Catalina Courthouse, I have watched the island turn into a hot spot for Drunk in Public enforcement.

Not long ago, local sheriffs would regularly escort drunken tourists back to their hotels.  If an inebriated visitor couldn't remember where he was staying, or if he didn't have accommodations for the night, deputies would even him help book a room.  It took effort to get arrested for PC 647(f) in Avalon.

In the rare case where someone was actually cited and booked for being dangerously drunk, the prosecutor was generous with a plea offer when the case got to court.  A typical deal used to include reducing the misdemeanor charge to an infraction, paying a small fine, and promising not to do it again.

Times have changed, though.  A new crop of deputy sheriffs and prosecutors on the island have recently adopted a zero-tolerance, no-holds-barred approach to disorderly conduct in Avalon.  Today, the Catalina Court imposes some of the harshest penalties in the state for alcohol-related offenses.  Standard offers now include probation, hefty fines, mandatory attendance at AA meetings and significant amounts of community service or hard labor (not to mention, a misdemeanor conviction on your criminal record).  This doesn't mean that the DA always gets what they want, but you and your attorney should be prepared for a fight.

Lawyers from outside of the area may be shocked when they appear in court on the island for the first time.  In most courthouses, "drunk in public" is considered a very petty crime.  Prosecutors in downtown LA, for instance, have bigger fish to fry.  They cannot afford to dedicate significant resources to throw the book at some tourist who got caught staggering back to his hotel.  Catalina takes these cases seriously, though.  You should, too.

Section 647 of the California Penal Code governs a variety of bad behaviors that collectively fall under the umbrella of "disorderly conduct".  Subsection (f) specifically prohibits public drunkenness.  PC 647(f) is a misdemeanor, meaning that the maximum penalty includes 6 months in jail and a base fine of $1,000.00.  After all the mandatory fees and court costs are tallied, the total maximum fine is about $5,000.00.

To be convicted of PC 647(f), the prosecutor must prove 3 elements:

1. That the defendant was under the influence of drugs or alcohol, AND
2. That the defendant was in a public place, AND
3. That the defendant was unable to care for his own safety or the safety of others, OR that the defendant interfered with a sidewalk or public walkway

Each of these elements is subject to some argument and interpretation.  How drunk does someone have to be before he is considered "under the influence"?  What if the person had been "dosed" or was involuntarily impaired?  What counts as a "public place"? etc.  These cases can be more complicated than they appear.  

Of course, the defense in your case will depend on the specific facts and circumstances surrounding your arrest.  Why were deputies summoned in the first place?  Did some witness(es) complain about your behavior?  Was the arrest recorded in any way (audio or video)?  Did the arresting officers conduct any sort of chemical test (e.g. a breathalyzer, etc.)?  Were you cooperative or belligerent?  Do you have a history of alcohol-related arrests?  Do the "interests of justice" dictate that you be harshly punished or that you deserve some lenience?  

Our office defends more cases on Catalina Island every year than any other private attorney in the State of California.  We have extensive experience in fighting against Drunk in Public charges, as well as all other misdemeanors that arise in and around Avalon.  In most cases, we can appear in court on your behalf so that you don't need to worry about traveling all the way back to Catalina for a series of court appearances. 

If you or a loved one have been cited or arrested while visiting Catalina, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

  

Catalina Island Lawyer

Driving Under the Influence of Drugs in Orange County

Everyone knows that it's illegal to drive a car while you are impaired by alcohol.  The legal blood-alcohol limit, 0.08%, is one of those numbers we can all cite off the top of our heads, like 3.14 or 867-5309.  Unfortunately for a lot of my clients, though, the rules about driving under the influence of drugs are still a mystery.  I'll do my best to break it all down in today's blog post.

There's a lot of overlap in the way that courts handle "driving under the influence of alcohol" cases and cases where defendants are accused of driving under the influence of drugs.  There are also enough differences, though, that I thought the subject deserved a post.

Drunk Driving (DUI)

Section 23152 of the California Vehicle Code defines various "DUI" crimes.  VC 23152(a), for instance, says that it is illegal for anyone to operate a vehicle while he or she is "under the influence of alcohol", regardless of the person's actual blood-alcohol concentration.  To be convicted under this section, the DA does NOT need to prove that your blood-alcohol concentration was above the legal limit of 0.08%.  Prosecutors only need to prove that you were "impaired" due to alcohol, and that you could not operate a vehicle with the skill and care of an ordinary, sober person (whatever that means).  To make their case against you, the DA will introduce evidence that you had been observed driving badly, you "appeared disoriented" after the traffic stop, and you performed poorly on field sobriety tests, etc.

VC 23152(b), on the other hand, specifically prohibits anyone from driving a motor vehicle while his or her BAC is greater than 0.08%, regardless of whether or not that person is actually "impaired" by alcohol.  Even if you can "hold your liquor" and you perfectly nail all of the field sobriety tests like a champion, you can still be convicted of violating VC 23152(b) if a chemical test determines that your blood alcohol concentration is above the legal limit of 0.08%.

Starting on July 1, 2018, it will become illegal for anyone who has a BAC of 0.04% or greater to drive a car while a "passenger for hire" is present in the vehicle.  VC 23152(e) includes a definition of "passenger for hire" that makes it clear that this section applies to Uber and Lyft drivers who have a few pops on the clock, but who might still be below the legal limit of 0.08% that applies to other motorists.

Driving Under the Influence of Drugs (DUID)

This is where is gets really interesting. VC 23152(f) makes it illegal for anyone to drive a car while he or she is "under the influence of ANY drug".  "Any drug" means exactly that.  If the DA can prove that you were dangerously impaired by some substance, it is not a defense to argue that the drug was prescribed by your doctor (like Ambien), or that the drug is legal in California (like marijuana).

DUID cases, then, usually turn on a couple of obvious questions: how impaired is too impaired to drive?  And how convincingly can prosecutors prove this driver's exact degree of impairment?  Typically, police officers will testify about their objective observations (swerving, speeding, driving too slowly, etc.).  A certified "Drug Recognition Expert" ("DRE") will also tell the jury that he observed your pupils, your heart rate, your performance on cognitive test, etc., and that he formed the opinion that you were under the influence of some drug or combination of drugs.  A toxicologist from the crime lab will explain how your blood was drawn, stored and tested.  The toxicologist's reports will outline the substances that were found in your blood.  Based on the totality of all these observations from state-appointed "experts", the DA will attempt to convince a jury that you were dangerously impaired by drugs at the time of driving.

Even if the DA can prove that you were on drugs, that's not the end of the story -- and it doesn't necessarily mean that you're guilty of a crime.  In addition to proving that you had consumed drugs before driving, the DA must also prove that those drugs actually made you unsafe behind the wheel.  Of course, some prescription drugs might have the effect of making a driver more attentive or capable behind the wheel when those drugs are used in therapeutic doses under a doctor's supervision.  Some of those same substances might make a driver completely unsafe if they are abused, mixed with other drugs, or if a patient has an adverse reaction.  Adderall, for instance, is essentially an amphetamine.  When used properly, the drug performs wonders for individuals who suffer from ADD.  When abused, though, Adderall is addictive and dangerous.  If a defendant is accused of driving under the influence of Adderall (or Xanax, or Vicodin, etc.), his defense attorney might demonstrate to the jury that the levels of the drug found in his blood stream are within a "therapeutic range", where the driver is actually safer than if he would have been if he hadn't taken his meds that morning.

Allegations of driving under the influence of marijuana are even more complicated, since the drug may affect individual users differently.  Marijuana toxicology reports are especially strange.  Marijuana blood tests typically identify levels of both active delta-9 THC (the chemical that is currently causing impairment in the user, and THC metabolites, sometimes called "carboxy THC", or "COOH-THC". COOH-THC is a chemical that is produced within the body after the user has already metabolized whatever he or she previously smoked.  COOH-THC is not psychoactive.  It remains detectable in the user's blood stream for weeks after his or her most recent use, but it does not indicate that user's current level of impairment.  Delta-9 THC and COOH-THC should not be confused with each other.  Even high levels of COOH-THC are absolutely irrelevant in determining whether or not a suspect is too high to drive.  High levels of COOH-THC may be relevant, however, to prove that the defendant is a regular user and, thus, has a high tolerance to the drug.

In most of the cases I've handled where my clients are accused of driving under the influence of drugs, the DA's strongest piece of evidence is my client's own statement to police.  They admit that they "smoke a little", or a that they took some prescription drugs.  Statements like those can turn a minor traffic stop into a major arrest.  Without a confession, police might not have even suspected drug use.  Even if the officer had believed that the suspect was under the influence of drugs, there might not have been enough evidence to make an arrest or to sustain a conviction.  By talking to cops, though, suspects can make the DA's job very easy.

The Orange County District Attorney's Office has decided to make a priority out of aggressively prosecuting DUID cases.  Their agency actually receives grants from various highway safety groups to specifically target these offenses.  Those grants are used to hire teams of prosecutors who exclusively handle DUID charges.  The Orange Bubble is a bad place to be arrested on suspicion of driving under the influence of drugs.  Local prosecutors like to play hardball with these cases, but that doesn't mean that they have an advantage in court.  In fact, their aggressive attitude toward DUID often means that they choose to pursue weak cases, where the evidence just doesn't support a conviction.

Fullerton is especially a DUI / DUID enforcement hot spot.  The crowds of out-of-towners and college students who fill the bars and clubs between Commonwealth and Wilshire fuel a steady stream of DUI arrests every weekend.  All Fullerton Police officers are actually instructed to swarm the downtown area around closing time, unless they are responding to some other pressing matter.  They are also specifically trained to watch for drivers who are impaired by drugs and / or alcohol.  Fullerton police have reportedly been using a controversial new saliva test that can instantly test drivers for the presence of marijuana.  And just like the OCDA, the Fullerton Police Department receives grant money for traffic safety, which they use for DUI enforcement (which generates more money...).

If you or a loved one has questions about driving under the influence of drugs or alcohol, call us for a free attorney consultation.  714 449 3335. Ask for John.  Our local staff has extensive experience defending against all types of DUI / DUID charges in Orange County.

Thanks for reading.

Fullerton DUI / DUID Lawyer

Catalina Island Special Appearance Attorney

Our office handles more criminal cases on Catalina Island than any other private firm.  If you're scheduled to appear in the Avalon courthouse, save yourself the time and hassle of the trip and allow us to make a special appearance.

Our appearance fee is usually less than the cost of the trip, especially if you factor in the value of your time.  An appearance on Catalina Island takes most of the day.  The Catalina Express leaves from Long Beach at 6:00 AM.  If your case goes smoothly and you can catch the 11:45 boat back, you'll arrive back on the mainland around 1:00 PM.  If the court staff is delayed by inclement weather, cases are often heard in the afternoon, or not at all.  There is nothing quick or simple about a "quick and simple appearance" on the island.

We have extensive experience in defending against the most common charges that arise on Catalina, including fishing violations (undersized lobster, fishing in a protected area, commercial fishing without the necessary permits and endorsements, etc.) and other misdemeanors (drunk in public, golf cart DUI, possession of drugs and domestic violence).

If you need an appearance covered on Catalina Island, or if you have questions about what to expect, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

What are the Rules About Marijuana and Driving in California?

Section 23152 of the California Vehicle Code says that driving under the influence of drugs and / or alcohol is a misdemeanor.  Everyone knows that legal limit for alcohol is 0.08% -- if prosecutors can prove that your blood alcohol concentration was greater than 0.08% at the time of driving, you are guilty of DUI.

Marijuana is a lot more complicated than alcohol, though.  Even though adults over 21 may now legally grow, use and possess marijuana in California, it is still illegal to operate any motor vehicle (a car, a boat, a golf cart, a jet ski, a moped...anything with a motor) while you are "impaired" by cannabis.

Unlike alcohol, there is no magic number to objectively determine whether or not someone is too stoned to legally drive.  To convict you of driving under the influence of marijuana, the prosecutor must prove that you operated a vehicle while you were in such a condition that you could not exercise the skill and care of an ordinary, sober driver (whatever that means).

If you are stopped by police and an officer suspects that you've been smoking, he will begin the standard investigative procedures: he will ask you a series of questions about where you're coming from and where you're going.  He'll ask if you're under the care of a doctor of if you've had any recent surgeries.  He'll ask when you slept last and whether or not there is anything mechanically wrong with your car.  The officer also will probably invite you to participate in a series of field sobriety tests (walk a line, touch your nose, stand on one foot, estimate 30 seconds, etc.).  You are not legally required to take these tests.  You'll be arrested either way, so I'd advise that you provide as little evidence as possible to be used against you later in court.  If you are stopped on suspicion of DUI, you should POLITELY decline to play the roadside Olympics.  You should also avoid talking yourself into trouble.  Do not admit that you recently smoked, drank, or consumed any controlled substance. 

After you are arrested, you must provide a blood sample.  If you refuse to submit to a chemical test after you have been lawfully arrested on suspicion of DUI, the DMV will automatically suspend your driver's license for one year. 

To make their case against you in court, the DA will introduce evidence that were driving poorly before you were pulled over.  A police officer will testify that he stopped you because you were driving too slowly, you were drifting within your lane, you made an unsafe lane change, etc.  The officer will testify that you "appeared disoriented" and "had difficulty following instructions".  He will probably also testify about the smell of burnt cannabis emitted from your breath and from the interior of your vehicle.  If you agreed to perform field sobriety tests, the officer will testify that you failed them all miserably, even if you feel like you nailed them.  Based on the totality of his observations, the officer will testify, he formed the opinion that you were dangerously impaired by marijuana and that you could not safely operate a vehicle.

The DA will also use your blood test results to build their case against you.  Your blood test will give two important numbers: your levels THC metabolites (also called "carboxy-THC", or "COOH-THC"), and your levels of active THC (also called "delta-9-THC").  THC metabolites remain in your blood system for weeks after your last usage.  They are not psychoactive and are not indicative of current impairment.  They only prove that you have consumed marijuana some time within the past several weeks.  This number is not relevant to determining whether or not you were dangerously impaired at the time of driving, but it may be relevant to demonstrate that you have a high tolerance for the drug.

Your delta-9-THC numbers are slightly more valuable in determining your current level of impairment.  Delta-9-THC is the chemical that is CURRENTLY active in your bloodstream.  Your delta-9-THC concentration is still not a completely reliable way to determine a driver's degree of impairment, though.  Since cannabis affects users so differently, there is not a strong correlation between a person's delta-9-THC levels and his or her actual impairment.  A relatively inexperienced marijuana user might be very impaired at a low THC level, where a more experienced smoker might barely feel any effect at the high blood-THC concentration.  Consider also that indica-dominant strains might affect a user differently than sativa-dominant strains, and that standard field sobriety tests are designed to detect alcohol impairment, not cannabis impairment.  Most "experts" will testify that a driver is more likely to be involved in a collision when his or her active THC level is greater than 5 ng/ml, and that the risk is multiplied by the presence of alcohol, but this is controversial.

Police and prosecutors are aggressively working to crack down on "drugged driving", including driving under the influence of legal drugs (marijuana, prescription drugs, sleep aids, etc.).  The Orange County District Attorney's Office has several deputy prosecutors who are specially trained and specifically assigned to process DUID cases full-time.  They take these cases seriously, but that doesn't mean that they have the advantage.  In my experience, their aggressive policy often means that they choose to pursue cases even when the evidence is weak. 

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

Thanks for reading.

Fullerton DUI Lawyer

How to Apply for a California Cannabis License

California began issuing licenses to the cannabis industry on Monday, January 1, 2018.  Specific state-issued licenses now govern virtually every aspect of the cannabis market, from seed to consumption, including cultivation, manufacture of concentrates, transportation, distribution, operation of testing labs, and retail sales.

If you're interested in getting involved with California's legal cannabis industry, the first step is to decide on a specific product or service you plan to offer.  As mentioned above, each stage of production and distribution will require its own specific license.  There are restrictions on how many different types of licenses any person or entity can control, and how many different licensees may operate on a single lot or parcel of land.  If you want to grow cannabis indoors on a lot smaller than 500 square feet, there is a specific license for that.  If you want to grow outdoors on a lot larger than 10,000 square feet but smaller than an acre, there is a specific license for that, too.

Once you settle on a specific product or service that you plan to offer, you'll need to form a business plan, including your ownership structure and financing.  Unlike our old medical marijuana rules, California now allows marijuana businesses to operate on a for-profit basis, rather than limiting them to non-profit mutual benefit corporations.  For the first time, you may choose to operate a canna-business as a sole proprietorship, an LLC, a partnership or a corporation.  The ownership / financing structure that you choose may have significant implications for your license application.  For example, you may be required to disclose personal details of your financial interest holders, and individuals with serious criminal convictions may be disqualified from holding more than a 20% interest in some marijuana businesses.

The next major hurdle in the application process will be finding a local jurisdiction (a city or an unincorporated part of a county) that actually authorizes your commercial cannabis activity.  The state will not process any applications without a copy of a valid local license, permit or other authorization from the jurisdiction where the business plans to operate.  As of today, very few municipalities in Southern California permit new cannabis-related businesses to open their doors.  Some towns have lax enforcement, some allow a handful of grandfathered locations, and some lack the resources to shut down the illegal dispensaries and grow houses that operate in violation of local ordinances.  If you want to apply for a state license, though, you'll need explicit local approval from your jurisdiction.  Before than can happen, more cities in Southern California will have to update their zoning laws to permit these types of businesses.

Once you have approval from your local city, then we can complete the application process according to the regulations that will govern your specific niche of the industry.  This may include obtaining permits from the California State Water Resources Control Board, applying for a seller's permit, registering as an employer with the Employment Development Department, posting surety bonds, negotiating a labor agreement, etc.

As I see it, the biggest impediment to starting a new canna-business in Southern California is the lack of local jurisdictions that expressly authorize them to operate.  You can't start running your business until you have a valid state license, and you can't get a state license until you have approval from your city, and no almost no city in Southern California will approve you (as of today).  There have been a lot of rumors about which jurisdiction might be the next to revamp their land use regulations, but very little action from city councils and planning commissions.

If you're serious about forming a marijuana-related business in Southern California, I would encourage you to speak with your local representatives on the city council and your local planning commission.  Attend public hearings and comment sessions.  Write letters, circulate petitions, support candidates who will promote commonsense reforms and oppose the dinosaurs who still believe in "reefer madness" ("But won't somebody think of the children?", "Not in my backyard!").

If you have questions about getting involved with California's legal cannabis industry, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Cannabis Lawyer

Religious Use of Marijuana

There is a pervasive and persistent myth that, somehow, claiming "religious use" is a valid, legal defense to the charge of operating an unlicensed marijuana dispensary.  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.  California currently allows adults to cultivate and possess marijuana for recreational or 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 revolves around 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 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 selling marijuana actually impose a "substantial burden" on the free 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 grow, use and sell marijuana in California -- but claiming that cannabis is a "sacrament" is not your best strategy.  If you or a loved one has questions about forming a legal marijuana farm or dispensary in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Fullerton Marijuana Lawyer

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 convict you 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.  To 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 distinguishes "fun 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 polite and 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 through the mail or at the Long Beach courthouse.  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 your 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 police 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, community service, CalTrans labor, mandatory AA meetings, or even jail time.  

Unfortunately, the Los Angeles District Attorney's Office has decided to take an aggressive stand in prosecuting "drunk in public" cases on Catalina.  Lawyers who visit Avalon from out of the area are often shocked by the harsh offers they receive on the island.  In other courthouses, 647(f) cases are routinely reduced to infractions or settled for minimal penalties.  In Avalon, though, standard offers from the DA often include dozens of AA meetings, high fines, 1-3 years of probation, 10-30 days of CalTrans service, or worse.

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

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

Can You Be Arrested for DUI if Your Blood Alcohol Level is Below 0.08%?

Many drivers are surprised to learn that they can be arrested for DUI in California even if their blood alcohol concentration (BAC) is below the legal limit of 0.08%.

In California, "DUI" is actually several distinct crimes: 1) driving while unsafely impaired by alcohol, 2) driving with a blood alcohol concentration of 0.08% or greater, 3) driving under the influence of drugs, and 4) driving under the combined influence of alcohol and some drug(s).  A driver might be charged with a single count or with multiple counts, depending on the circumstances.  

Police often encounter drivers who appear to be impaired by some substance, even when their blood alcohol level is low.  The driver might be a "lightweight" who is especially sensitive to alcohol, or he might be intoxicated by some drug(s), or by some combination of alcohol and drugs.  If police have probable cause to believe that the driver is impaired by any substance or combination of substances to such a degree that he cannot operate a vehicle safely, he will be arrested on suspicion of DUI and taken to the police station for a blood test.  

Depending on the results of that blood test and the totality of the circumstances, the DA will decide whether or not to file criminal charges against the driver.  If prosecutors believe they can prove that the driver was dangerously impaired by alcohol, they will charge the driver with violating VC 23152(a), regardless of his BAC.  If his BAC is above 0.08%, they may additionally charge the driver with violating VC 23152(b).  

If a blood test shows that a driver is impaired by drugs, he may be charged with violating VC 23152(f).  This includes legally prescribed drugs, illegal drugs, sleep aids and marijuana -- any substance(s) that may impair a driver's ability to operate a vehicle with the skill and care of a normal, sober person.  These cases are complicated because it's often hard to prove a driver's precise degree of "impairment", especially when the driver has extensive experience and a very high tolerance for some prescription medication that he has taken for years.  Our firm has even represented individuals who were accused of driving under the influence of chemotherapy drugs.

To further complicate matters, the DA can charge a driver with violating VC 23152(g) if they believe that he is impaired by the combined influence of alcohol AND drugs.  

There are many possible defenses to DUI charges, but only a qualified professional can fairly evaluate your case.  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.  

Thanks for reading.  

Fullerton DUI Lawyer

We're Moving!

After 7 years at our Santa Ana location, we're moving to Fullerton at the end of this week.  The new office will be located on the 9th floor of the Fullerton Towers, at 1440 N. Harbor Blvd. (Harbor & Brea Blvd., a block from the Fullerton courthouse).

We previously had a space in the Fullerton Towers that we used on an hourly basis to meet with clients. Now, it will be our full-time home. As a local Fullerton boy, I'm excited about this new opportunity to better serve clients in my home town.  I love appearing at the North Orange County Justice Center, and this new location will make my Fullerton appearances even more convenient.

I'll still be mobile and I'm always happy to meet my clients wherever they're comfortable. If transportation is a problem, I'll come to your house or I'll meet you at a Starbucks near your workplace if downtown Fullerton is inconvenient for you.

The location of our office is changing, but our practice is not. We will continue to deliver outstanding legal representation for our clients in criminal matters, DUI, restraining order cases and supporting the medical marijuana industry.

If you or a loved one has questions regarding a criminal case, a restraining order, or medical marijuana, call us at our new number for a free attorney consultation.  (714) 449-3335.

Thanks for reading.

Fullerton Attorney

What We're Working on Now

It's been a busy summer at our office and I know I've been neglecting this blog for the past month. We've handled some really interesting cases and we're continuing to help our clients achieve some fantastic results. Here's a sample of what we're working on now:

-Domestic violence trial in Orange County:  I'm scheduled to start a trial in Newport Beach this week. We were set to begin on 9/26, but it's been postponed a couple times already.  It looks like we should be ready to start selecting jurors tomorrow.  I can't disclose too many details right now, but I can attest that the accusations against my client are nonsense.  Stay tuned for updates as they become available.

-Under the influence of a controlled substance in Riverside (Indio, Coachella Festival):  I LOVE defending cases that arise at the big music festivals in Southern California.  Police arrest so many people so quickly that glaring mistakes are inevitable.  They do a terrible job of collecting evidence, writing detailed reports, filing cases in a timely manner, and preparing to appear in court.  If you're arrested at Coachella, the HARD festival, or any other major EDM event in the area, you should definitely consider speaking with a qualified, local attorney before you make any decisions.

We recently represented a young man who had been picked up at Coachella five years ago.  At the time, police believed that he was under the influence of drugs, but they took him to a mental health hospital rather than jail.  He was informed that he was not under arrest and that he was only being held for observation to ensure his own safety.  His parents were advised that no court appearances would be necessary.  Six months later, the DA filed criminal charges against my client, but they never made any effort to notify him that a court date had been scheduled.  Now (five years later), he applied for a job and he learned that he had an outstanding arrest warrant.

We filed a motion to dismiss the case due to a violation of my client's constitutional right to a speedy trial. When there has been a long delay between the filing of charges and the client's first court appearance, the burden falls on the DA to explain or justify the delay.  We argued that the delay in this case was unreasonable and the judge agreed.  Case dismissed.

-Child Abuse in Los Angeles (West Covina):  My client had used (what I consider to be) reasonable force to discipline an especially-obstinate child.  The child was not injured, the evidence was weak, and the force she used against the child was not clearly "abusive" or "excessive".

My client chose to voluntarily begin parenting / anger management counseling before the case ever ended up in court.  The DA agreed to dismiss the case if my client continues to participate in the counseling that she was already attending.  I call that a "win".

-Restraining Orders:  We're continuing to achieve fantastic results with restraining order hearings. This summer, I've handled restraining order cases from San Diego to Chatsworth, and from Long Beach to San Bernardino.  My cases have involved accusations by parents against their children, children against their parents, neighbors against each other, and businesses against their employees.  These cases are all unique, and I think they're a lot of fun to handle.

I'm also defending a couple cases right now where my clients are accused of violating existing restraining orders.

If you or a loved one has a criminal matter or a restraining order case in Southern California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

Some Pervasive Myths & Misconceptions Over Medical Marijuana in CA

I've written about a few of these misconceptions on this blog in the past.  These rumors are just so pervasive that I wanted to take another opportunity to set the legal record straight.

If you care enough about the law and the facts to educate yourself on this complicated subject, please read on.  If you prefer to remain willfully ignorant by disregarding information that offends your agenda, then crawl back into your hole now.  It's nice and warm in there.

Every day, I work with dispensary operators, growers, patients, investors and, unfortunately, some people who have been arrested and accused of violating California's byzantine marijuana laws. I hear the same questions constantly. A lot of my clients have gotten themselves into serious trouble by failing to adequately understand the rules, or by following terrible legal advice that they've heard through the rumor mill. Stop listening to your idiot friends. That's the first bit of free advice.

This is a collection of the most common myths and misconceptions that I hear daily regarding medical marijuana in California.

Myth #1: Marijuana is Still Illegal Federally, So Cities May Not Allow Dispensaries to Operate

The first half of that sentence is correct, but the conclusion is not.  Marijuana is illegal federally. And federal law trumps state law. If state or local laws directly conflict with federal laws in some legal dispute, the federal law will (usually) prevail. If the DEA sued the state of Colorado to block implementation of its recreational marijuana laws, for example, the DEA would (probably) win.

But that's not what anybody is talking about here. The feds have not taken any legal action to block state implementation of lenient weed laws. In fact, Obama has taken the opposite approach. He has directed the Attorney General not to aggressively pursue federal legal actions against individuals who comply with the marijuana laws of their respective states. The Justice Department has, in turn, ordered all US Attorneys to make efficient use of their limited resources and not to prioritize these types of cases.

The Rohrabacher-Farr Amendment to the Omnibus Spending Bill also prohibits the federal government from expending any resources to interfere with state-sanctioned medical marijuana programs.

While federal laws trump local ordinances, the US Constitution does not require states and municipalities to actually enforce federal laws.  If the DEA wants to shut down Santa Ana's licensed medical marijuana dispensaries, let them spend their own resources to try. The city of Santa Ana has no obligation to do so.

Myth #2: Storefront Dispensaries are Actually Illegal in CA

False. This was a gray area a few years ago, but the law is settled now. Storefront dispensaries are allowed.

The Medical Marijuana Program Act, AKA "SB 420", AKA HS 11362.7 et seq. expressly allows qualified patients to collectively cultivate marijuana and to buy / sell / trade it among patient members of a cooperative, collective, or dispensary.

Section 11362.768 of the California Health & Safety Code further dictates how and where dispensaries may operate (not within 600 feet of a school, etc.). It's clear from a plain reading of the text and from the case law that the authors intended to allow brick-and-mortar storefronts to distribute medical marijuana.

Cities may impose more restrictive zoning / land use regulations to govern locations of dispensaries and hours of operation. They may even impose blanket bans on commercial medical marijuana activity. To claim that all storefront dispensaries are illegal in California is just plain false, though.

Myth #3:  Your Doctor Has the Authority to Issue a "Cultivation Permit" That Will Legally Allow You to Grow Up to 99 Plants

Not quite. Your doctor may recommend the therapeutic use of marijuana to treat some medical condition. If you have a medical marijuana recommendation from a doctor, then you may cultivate and possess as much cannabis as your doctor says that you reasonably need to treat your condition.

That amount may not be "excessive", but there is no clearly defined criteria to calculate how many plants are excessive for a particular person. A patient who cultivates outdoors might harvest one crop per year. If that patient cooks the cannabis into edibles, he or she might consume much more than the average smoker. If the patient also has a high tolerance, then a relatively large number of plants might not be considered "excessive".

The law imposes some arbitrary limits on the numbers of plants that a patient may possess (6 mature / 12 immature), but those strictly-defined limits have been overturned by the courts.

You do not need special permission from your doctor to cultivate for your personal use if you hold a valid medical marijuana recommendation. Your recommendation is already a defense to a variety of marijuana-related crimes, including cultivation for personal use.

Your doctor may not grant you a "permit" to cultivate for sale or to distribute marijuana in any way. He or she may, however, form some professional opinion regarding how much cannabis you "need" to treat your condition. Some doctors charge an extra fee to "form the opinion" that your medical condition requires you to consume (and cultivate) a huge amount of weed. For the right price, your doctor might be "convinced" that you "need" 99 plants for your personal use. Good luck convincing a judge.

Myth #4:  Dispensaries are "Just in it for the money"

Isn't that true for any business?  Do you think your roofer loves hot tar? Or do you think "he's only in the roofing business for the money"?

If you're looking for a legal way to get rich quick, I would not recommend opening a medical marijuana dispensary. That's because dispensaries are legally prohibited from operating for profit. Operators may draw a salary and they may pay their employees, but those salaries must actually correlate to the fair market value of the labor performed.

The dispensary must be organized as a collective, a consumer cooperative, an unincorporated nonprofit association, or a nonprofit mutual benefit corporation.  However the club organizes itself, it must be operated for the benefit of its patient members. If the club has more money at the end of the day than it started with, it is doing something wrong (and illegal).

I'll save a few more of my favorite myths and misconceptions for another day.  Check back often for more valuable and up-to-date legal information about medical marijuana in California.

If you or a loved one has questions about medical marijuana in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Orange County Marijuana Attorney

Catalina Island Court: A Nightmare in Paradise

I was back in court on Catalina Island this past Friday, May 13.

If I've learned anything from my experiences in Catalina court, it's to expect the unexpected. It doesn't take much to gum up the works at the Catalina courthouse. Delays and complications are part of the routine.

The Catalina Courthouse, nestled in the beachside community of Avalon, is only open on alternating Fridays. The judge, prosecutor, clerk and court reporter commute by helicopter from San Pedro when the court is in session. The slightest inclement weather, however, often means that the helicopters can't fly. When that happens, cases may be postponed until the court's next available date. And since the courthouse is only open every other Friday, the next available court date might be weeks or even months away.

I usually take the Catalina Express ferry to and from the island, but it's not much more reliable than the helicopter. I've been stranded on the island for days because boats couldn't cross the channel due to high winds, rough seas, or debris in the Long Beach Harbor.

Even when the weather cooperates, the human element is an unpredictable variable. I've had cases continued (routinely) because the DA or the court staff forgot to bring a file or some important paperwork from the mainland. It's all part of the experience when you go to court in Avalon.

This week, the culprit was fog. The helicopter was grounded due to poor visibility, so the court staff was stranded in San Pedro. The courtroom in Catalina was full of attorneys and defendants with cases on calendar, but nothing happens in court until the judge shows up. So we waited. And waited. And waited a little longer for the marine layer to burn off.

The court staff appeared around 11:45. The good news is that we were able to hear our cases without unnecessary continuances. The bad news is that everybody in court missed the boat that was supposed to take us back to the mainland at 12:15.

The next boat on the day's schedule left at 3:30, so we had a few hours to kill. I made myself comfortable at the Marlin Club. There are worse places to be stranded for a day.

There are plenty of great activities to enjoy on Catalina Island, but going to court is not one of them. If you're arrested or cited on Catalina, hire a local attorney to make your court appearances so you don't have to. I can save you the time, hassle and expense of experiencing this adventure for yourself. I appear in Catalina regularly, and I even make appearances for other attorneys who are unavailable to make the trip.

If you have questions about appearing in court at the Catalina courthouse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Island Lawyer

Fullerton Police Use New Oral Swabs to Test Drivers for Drugs

The Fullerton Police Department has been participating in a pilot program to test some new anti-DUI technology. Since 2013, the agency has experimented with oral swabs that supposedly detect the presence of marijuana, cocaine, amphetamine, opiates and benzodiazepine (Xanax) in a suspect's saliva.

The tests may indicate the presence or absence of specific drugs in the suspect's saliva, but they do not reliably measure the quantity or concentration of those drugs. Since they cannot accurately quantify the drugs that they detect, they are not very helpful in determining the suspect's actual degree of impairment. Clinical tests have also delivered very mixed results regarding the reliability of the new tests. The vice president of one company that manufactures the machines claims that his product is 99% accurate. The Sacramento PD, however, has had another experience. In one study, the department tested 34 drivers. Of those 34, 6 tested falsely positive and one tested falsely negative for drugs.

For now, the new oral swabs are only used as an investigative tool to help the police establish "probable cause" to make an arrest. Once the police have a good reason to believe that their suspect is driving a car while impaired, the suspect is arrested and transported to jail, where more reliable blood tests can be administered.

In California, there is currently no legal limit to clearly define when a driver is "impaired" by THC, amphetamine or other drugs. In order to sustain a conviction for driving under the influence of drugs, prosecutors must prove that the driver was so impaired by some substance -- or by some combination of substances -- that he could not operate his vehicle with the skill and care of an ordinary, sober driver (whatever that means). Typically, police will draw blood from subjects who they've arrested on suspicion of drugged driving. They will prepare reports to detail their observations of the subject.  Those reports will describe the subject's driving and performance on field sobriety tests. Based on the results of blood tests, combined with the totality of the officer's personal observations, prosecutors will attempt to prove that the subject was too impaired to safely drive a car.

The new oral swabs are one more piece of the puzzle that prosecutors will now use to combat drugged driving.  Driving under the influence of drugs is one of the hottest, most talked-about issues in local policing today.  Somebody recently decided that "Satanic death cults" are passe. "Driving under the influence of drugs" is the new danger lurking in suburbia. The Orange County District Attorney has deputies specifically assigned to prosecute these kinds of cases full-time. They receive grants from MADD to fund their efforts. The grants create a financial incentive for law enforcement agencies to devote disproportionate resources to combat a problem that may or may not actually exist (and to convict people who may or may not actually be dangerous).

If you or a loved one is accused of DUI or driving under the influence of drugs in Orange County, call us for a free consultation. (714) 449-3335. Ask for John. Thanks for reading.

Fullerton DUI Lawyer

Announcing New Collaboration with Thekindland.com

I'm proud to announce my partnership with thekindland.com.  I've contributed a few columns to their online magazine over the past year, but we recently finalized an agreement for a regular, long-term collaboration.  My "Ask a Weed Lawyer" features will appear each Sunday until the complaints become intolerable or until the robot apocalypse, whichever comes first.

As the title of my column suggests, I will be answering common marijuana-related legal questions. If you have specific questions that you'd like answered, please feel free to leave your suggestions in the comments, below.

If you don't already read thekindland.com, you should start now.  It's a free online magazine dedicated to cannabis culture and lifestyle.  Think High Times meets Vanity Fair.  And it's not all weed.  Daily articles include a roundup of bizarre news from the internet, commentary on arts / current events, and a feature they call "Chill / No Chill", where readers can vote on the divisive topic of the day (e.g. compression pants, hemp sneakers, pizza delivery robots, etc.)  Enter your email address on their homepage to get all the headlines delivered to your inbox every morning.

I will continue updating this blog while I work with the thekindland.com.  Most of my nationally-relevant, marijuana-related posts will go up over there, and the California-specific posts will stay here.  I'll also do my best to keep this blog freshly stocked with non-marijuana-related news and analysis.

Thanks for reading.  

The Usual Headaches Complicate Court Appearances in Catalina

I just got back from another trip to court in Catalina.  It looks like the same old headaches are still causing complications for individuals who are cited on or around the island.

The old story goes like this:

If you are cited for some illegal fishing activity (fishing without a license, in a protected zone, in possession of the more than the daily bag limit, etc.), Fish & Wildlife wardens will give you a citation that orders you to appear in court on Catalina Island "on or before" a particular date.

If you actually make the trip back to Catalina as you were ordered to do (and as you signed a written promise to do), there's a good chance that you will receive some bad news upon arrival: the court has not yet processed your citation.  You are not on calendar and nobody at the courthouse has any information about your case.  You will be told to go home and to wait for a new "Notice to Appear" to arrive by mail.  If that new notice never arrives, it is still your responsibility to maintain contact with the court and to continue checking in regularly until your matter finally appears on the calendar.  Then, of course, you can make another trip to begin the process of fighting your case.

If you miss a court date (because the new "Notice to Appear" was mailed to an old address, or to the wrong address, or because it was never mailed at all), a warrant will be issued for your arrest. You will become a "fugitive", and then your life will really get miserable.

Once your case appears on the court's calendar, then you can appear and start the process of trying to fight it.  You might decide to cut your losses and simply plead "guilty" or "no contest" at the first appearance to save yourself from making any more costly trips to and from Catalina.  If you decide not to jump on a bad offer, though, be prepared to make several more appearances. That's when "complication #2" rears its head.

If your case requires several trips back and forth to Catalina Island, you should expect the DA to "forget" your case file at least once.  When this happens, the matter will simply be continued to the court's next available date.  That means another wasted trip. Often, I get the impression that prosecutors intentionally drag their feet to make the whole process as complicated and expensive as possible for individuals to defend themselves.  I understand why many defendants are eventually pressured into accepting bad deals because they simply cannot afford to make any more day-long trips to court. The DA understands this, too, and they will use basic economics to gain whatever strategic advantage they can.

Catalina Island is a great place to spend a day, but not in court.  If you or a loved one has been cited and given a court date on Catalina Island, save yourself the expense and the hassle of making unnecessary trips.  Have a quality, local attorney handle it for you.

I appear in Catalina more frequently than any other private attorney in California.  I can make your appearances, gather evidence and negotiate with the court and the DA on your behalf to ensure that your case receives the most favorable outcome possible.  Common matters on the island involve fishing violations, but we also deal with a lot of alcohol-related offenses (drunk in public, assault, battery, domestic violence and DUI -- yes, DUI on golf carts).

Call us for a free consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Lawyer

The First Amendment as a Defense to Drug Charges?

If you haven't already, please check out the columns I've been contributing to thekindland.com. The entire archive is available under the "Ask a Weed Lawyer" section.

My latest post for The Kind Land is scheduled for publication on Valentine's Day (2/14/16).  In it, I discuss "freedom of religion" as a possible defense to drug charges.  This is an area that has generated a lot of popular mythology and bad information.  Many people believe that the First Amendment's protections for the "free exercise of religion" grant them total immunity against prosecution for any activity that is central to their religious beliefs.  Unfortunately, this is not true. The Supreme Court has consistently ruled that the US Constitution does not entitle individuals to disregard generally applicable criminal laws.  Sorry, Rastafarians.

The Religious Freedom Restoration Act

But there are a couple federal laws that, taken together, make this analysis more interesting.  First is the "Religious Freedom Restoration Act", which was signed into law in 1993.  That law prohibits the US government from taking any action that "substantially burdens" the free exercise of religion, unless the government can prove 2 important things: 1) that the feds have some "compelling" interest to protect, and 2) that the government's action in question is the least intrusive means for protecting that interest.

Keep a couple things in mind, though.  The RFRA is not a constitutional amendment, it is a federal law.  That means that it does not apply against the states; it only applies to actions taken by the federal government.  States and local governments are still free to "substantially burden" the exercise of your religion.  Also, the RFRA does not grant blanket immunity to do anything that you claim is part of your religion.  Instead, it establishes a balancing test.  If you claim that some federal law infringes on your religious beliefs, then the courts must weigh that infringement against the government's legitimate interest in protecting public health and safety.  If the government's interest is found to be "compelling", and its actions are "the least intrusive means" for protecting that interest, then you still lose.

The Religious Land Use and Incarcerated Persons Act

Enacted in 2000, the federal RLUIPA takes the RFRA one step further.  It prohibits cities and local governments from making any laws regarding zoning or land use that substantially burden the practice of religion.  Up until now, most of the litigation around the RLUPIA has involved eminent domain cases -- whether or not a city may seize church land to build a new housing development or airport.

What does this have to do with marijuana?  Glad you asked.

The Oklevueha Native American Church, a group that claims over 200 local branches, has recently announced plans to open several new locations in Costa Mesa, Huntington Beach, and Westminster.  Members of the church use peyote, marijuana and other hallucinogens to "commune with nature" as part of their religious beliefs.

The church will operate out of buildings that formerly housed marijuana dispensaries.  Church leaders have stated that they intend to distribute marijuana to their members, in violation of local zoning laws.  It is not clear whether or not the church intends to distribute other controlled substances and whether or not it will restrict marijuana sales to members who hold valid medical recommendations.

Spokesmen for the cities of Huntington Beach and Costa Mesa have publicly stated that they intend to enforce their existing zoning laws.  An attorney for the church has threatened to bring a federal lawsuit under the RLUIPA if the cities' land use regulations interfere with his clients' right to freely exercise their religion.

We're all excited to see how this plays out.

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

Thanks for reading.

Orange County Drug Lawyer

What are the Different Kinds of Vehicular Manslaughter in California?

Vehicular manslaughter is the crime of causing someone's death while you are operating a motor vehicle.  That vehicle can be a car, a motorcycle, a boat, or even a golf cart. The big difference between manslaughter and murder is that murder charges require the prosecutor to prove that the defendant acted with "malice".  Think of malice as "bad intent" -- like intentionally trying to kill someone or acting so recklessly that death was likely or foreseeable. Manslaughter charges, on the other hand, do not require the prosecutor to prove that the defendant acted with malice.

If you are responsible for causing a traffic death in California, prosecutors may charge you with some form of "vehicular manslaughter", or even murder under some circumstances.  Not all vehicular manslaughter cases are created equal.  The major factors in determining how (or if) you'll be charged are:

-Whether or not you were intoxicated at the time that you caused the collision,
-Whether or not you have a prior DUI conviction,
-Whether or not you acted with "gross negligence",
-Whether or not you acted with "wanton and conscious disregard for life".

Accidents happen, and not every fatal accident warrants the filing of criminal charges.  If the DA wants to charge you with any form of vehicular manslaughter, they must prove that you did something illegal or dangerous, and that your illegal / dangerous act directly caused someone else's death.  The severity of the charges will depend on the nature of the illegal or dangerous act that you committed.

Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" is some minor traffic infraction (failure to signal, answering a text message, etc.) and that infraction causes someone's death, you could be charged under PC 192(c)(2), "vehicular manslaughter without gross negligence".

Vehicular manslaughter without gross negligence is a misdemeanor, punishable by a maximum of one year in jail.  You might not necessarily receive a whole year in jail (you might not receive any time in jail, depending on a lot of things), but it's on the table.

Gross Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" involves "gross negligence", though, prosecutors have the option of treating the case as a felony, with a maximum penalty of 6 years in prison.

Gross negligence is defined as "an extreme departure from what a reasonably careful person would do in the same situation".

Vehicular Manslaughter While Intoxicated

If the driver is intoxicated at the time that he or she causes a fatal collision, the case may be charged under PC 191.5.  Vehicular manslaughter while intoxicated carries a maximum penalty of 6 years.  To sustain a conviction, the DA must prove all the elements of a normal vehicular manslaughter charge (that the driver committed some illegal or dangerous act and that this act directly resulted in a death), and they must also prove that the defendant was impaired by drugs or alcohol at the time.

Gross Vehicular Manslaughter While Intoxicated 

As it's name implies, "Gross vehicular manslaughter while intoxicated" = vehicular manslaughter + intoxicated driver + gross negligence.  A conviction can carry up to 10 years in prison.

Wanton & Reckless, or "Watson Murder"

There is a controversial provision in California law (PC 188) that allows prosecutors to charge a driver with murder if the driver acts with "conscious disregard" for life and thereby causes someone's death.  The theory is that some behaviors are so dangerous that they carry an inherent risk that someone will die.  If a defendant knows about these dangers, consciously disregards them, and thereby kills someone, the killing will be treated as if it were intentional and not an accident.

To illustrate "wanton & reckless / Watson murder", I always use the example of firing a gun into a crowd of people.  The shooter might claim that he did not intend to kill anyone, but the act of shooting into a crowd is so inherently dangerous that the shooter should have foreseen the risk that he might kill a person.  If someone does die as result of that reckless shooting, then the killing is treated as murder and not as an accident.  The same principles apply on the road.

Textbook examples of "wanton & reckless" murder involve illegal street racing accidents.  News flash: street racing is dangerous.  The danger is part of the appeal.  If you engage in illegal street racing and someone is killed, though, be prepared to face murder charges.

A more controversial example is what we call "Watson murder".  Here's how it works:  whenever anyone is convicted of DUI in California, the judge is required by law to warn him or her that driving under the influence of alcohol or drugs is inherently dangerous to human life.  The judge is also required to order the defendant to attend and complete a mandatory alcohol education program, where they will learn about the dangers of drunk driving.  If that person is ever involved in a fatal DUI collision later in the future, prosecutors will argue that the defendant had special knowledge and awareness regarding the dangers of drunk driving because he or she had been previously warned and had completed the mandatory alcohol classes.  Since the defendant personally knew that driving under the influence was dangerous and consciously disregarded that risk by continuing to drink and drive, any resulting harm will be treated as if it were intentional and not an accident.

A conviction for Watson murder can carry a sentence of 15 years to life in prison.

There are many possible defenses to vehicular manslaughter and Watson murder charges. Depending on the evidence, your attorney may argue that you were not directly responsible for causing the fatal accident, or that there is insufficient evidence to prove that you were intoxicated at the time of driving.  Only a qualified criminal defense attorney can determine the best strategy for your particular case.

If you or a loved one has questions about vehicular manslaughter or Watson murder in Orange County, Los Angeles, Riverside or San Bernardino, call our office for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Vehicular Manslaughter Lawyer