Police Took My Stuff. How Can I Get it Back?

Police often seize property during investigations if they believe that the items are illegal to possess or that the property is evidence of a crime.

Of course, police have the authority to collect evidence for criminal prosecutions.  Citizens, though, have the right to be free from unreasonable seizures.  Individuals in the United States also have the right to Due Process before the government can simply take their property.  When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.

There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.

Evidence

If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved.  They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.

After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins.  When the case is over, then the items are no longer needed as "evidence".  If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise.  And there are a few good counterarguments.

Contraband

Obviously, the court will not order the police to return something that is illegal to possess.  Illegal weapons, for example, must be destroyed by law after a case is resolved.  The same is true for drugs, drug paraphernalia, and counterfeit goods.

These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband".  Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments.  It's amazing how many police, prosecutors and even judges don't understand these laws.  Police often seize legal weapons because they "look scary".  A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.

Forfeiture

If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited.  If property is forfeited, the police get to keep it.  This has become a huge area of controversy lately.  Some police departments have become dependent on forfeiture actions to balance their budgets.  Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.

The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved.  If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence.  This is especially common in cases involving poaching and illegal fishing.  Poachers and illegal fishermen usually possess a lot of expensive gear.  The Fish & Wildlife agents really want that gear.  In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife.  If you're not willing to forfeit your valuable gear, we can help you keep it.

Marijuana

Marijuana is legal in California, but it is also subject to many regulations and restrictions.  This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do.  If police seize your cannabis, call our office to discuss your options.

If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return.  This may be risky, though.  By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble.  Talk to us before you talk to the police.

Firearms

Guns are even more complicated.  Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them.  This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.

If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons.  In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them.  This is a several-step process, but it can be done.

If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

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.

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Fullerton Marijuana Lawyer

What to Do if You're Pulled Over for a DUI

If you are stopped by police on suspicion of DUI, your behavior and demeanor can often determine whether or not you will spend a night in jail.  Even if you are arrested, knowing how to interact with police can make a big difference for the outcome of your case in court and with the DMV.

Do Not Talk Yourself Into Trouble

The most common mistake I see clients make is to admit they've been drinking or using drugs.  It is a crime to lie to police, but that doesn't mean that you're legally obligated to talk yourself into trouble.  You can (and should) politely refuse to answer any questions whenever you're being grilled by police.  Virtually nothing you can say will lead to less trouble than you're already in.  If you start talking and your speech sounds slurred or if your breath smells like alcohol, those observations will be noted in the arrest report.  If you admit that you've taken some prescription drugs or consumed marijuana (even medical marijuana), you will almost certainly be taken to the police station for a blood test.

Do Not Voluntarily Submit to Field Sobriety Tests

Field Sobriety Tests (FSTs, or the "roadside Olympics") are a series of standardized tasks that police use to evaluate drivers who are suspected of DUI.  Common FSTs include the "Walk and Turn" test (where subjects are instructed to walk heel-to-toe for 9 steps along an imaginary line, pivot and walk back), the "Rhomberg" test (where subjects close their eyes and tilt their head back without swaying from side to side), and the "Finger to Nose" test (what it sounds like).

Unless you are currently on probation for DUI, you are not legally obligated to participate in any of these tests.  No matter how well you perform on FSTs, the arrest report will always say that you "appeared disoriented", you "had difficultly following instructions", you were "unsteady on your feet", etc.  Those tests not intended to be "passed", they're intended to give the arresting officer plenty of reasons to form a subjective opinion that you were too impaired to drive safely.  Of course, there are plenty of reasons that a perfectly sober person might perform poorly on those tests.  They're not easy.

Do Not Submit to a Breathalyzer Before You Are Arrested

The police officer might ask if you want to voluntarily take a roadside breath test.  Again, you have no obligation to take the Preliminary Alcohol Screen (PAS) unless you are currently on probation for DUI.   Don't do it.  After you are arrested, you must provide a sample for chemical testing, but not before.

Breath Test or Blood Test?

If you are arrested on suspicion of driving under the influence of alcohol, then (and only then) you must submit to your choice of either a breath test or a blood test.  If one test is unavailable, you must take the other.  If you are suspected of driving under the influence of drugs, then you have no choice; you must take a blood test.  Breath machines cannot test for drugs other than alcohol.

The police will read you an admonishment to specifically warn you about your obligation to provide a chemical sample for testing.  If you are lawfully arrested on suspicion of DUI, the police read the appropriate warning, and you refuse to submit to a breath or blood test, your driver's license will automatically be suspended for one year.  The police may even obtain a warrant to take your blood by force if necessary.

If you are given the choice, is it better to take a breath test or a blood test?  In my opinion there are advantages and disadvantages to each.  The blood test will preserve a sample that can be retested at a private facility if you disagree with the analysis that the county crime lab provides.  Retesting that sample may reveal several different reasons that the county's toxicology report is unreliable.  If the blood is contaminated with bacteria or improper preservatives, your attorney might have a good argument to have the sample thrown out entirely.  On the other hand, a blood test will also reveal drugs other than alcohol that can form the basis for a DUI.  If you take prescription medicine, sleep aids or if you have consumed marijuana within about 5 hours before driving, prosecutors may file additional charges.

The breath test does not retain a sample for retesting and it will not reveal other drugs that might be present in your blood.  There are a handful of reasons that a breath test might be unreliable.  Your attorney may challenge the machine's maintenance and calibration, or he might argue that the officer who administered the test failed to follow the manufacturer's instructions.

If you have recently consumed ANY drugs other than alcohol (even legal, prescription drugs) and you are given the option, I would personally opt for a breath test.  If you have NOT taken any other drugs, you might choose the blood test.

To Post Bail or Not to Post Bail?

If you are arrested for a first-time DUI and nobody got injured, you will usually be released on your own recognizance within about 12 hours.  You will be required to sign a "Promise to Appear" in court on a specific date for your arraignment, usually scheduled about 6-8 weeks after your arrest.

If you have previous convictions for DUI, if your case involved a collision, or if you refuse to sign the "Promise to Appear", you might not be quickly released on your own recognizance.  Bail for a first DUI is usually $2,500 - 5,000, but it can be much higher if you are accused of causing an injury.

After You Are Released

You will be given several pieces of paper when you are released from custody.  The pink page is your temporary driver's license.  It is valid for 30 days.  Once that temporary license expires, your license will automatically be suspended.  You have a right, though, to conduct a hearing with the DMV to determine whether or not your license should be suspended before your criminal case is resolved.  You must call and request that hearing within 10 days of your arrest.  If your hearing is scheduled more than 30 days in the future, you may continue driving until you receive the results from that hearing.

A private attorney can handle everything with both the court and the DMV.  If you plan to wait more than 10 days to hire an attorney, though, you should request your DMV hearing immediately.  Once you eventually hire an attorney, he or she can contact the DMV to reschedule that hearing for some time when he or she is available.

If you or a loved one has been arrested for DUI in Orange County, call us for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.

Orange County DUI 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

Fullerton Police Step Up DUI / Traffic Enforcement

Fullerton Police recently announced that the department has been awarded a $400,000 grant from the California Office of Traffic Safety.  The funds will be used to conduct DUI checkpoints and to fund additional saturation patrols specifically targeting impaired drivers.

Police also announced that they plan to use grant money to compile "DUI Hotsheets" -- lists of DUI offenders with suspended or revoked licenses -- as part of their "court sting" operations.  I actually witnessed a court sting in practice this morning.  I was walking out of the misdemeanor pre-trial department (N-9) of the Fullerton Courthouse and I recognized a Fullerton Police Officer hanging out in the hallway, dressed in street clothes.  The officer was holding a stack of papers.  The papers contained mugshots and case notes.  This cop was waiting for someone with a suspended license to walk out of court.  If the suspect attempted to drive away from the courthouse, the FPD would immediately stop the driver and impound his car.  This should go without saying, but DO NOT DRIVE TO OR FROM COURT WITH A SUSPENDED LICENSE.

Downtown Fullerton is always a hot spot for DUI enforcement, and holiday weekends are especially busy for local police.  DUI doesn't just mean alcohol, either.  The Fullerton Police Department employs "drug recognition experts" who are specially trained and certified to spot drivers who are impaired by marijuana and other drugs.  Now that the Fullerton PD has a some grant money to burn on traffic enforcement, expect an especially heavy police presence on patrol for impaired drivers.  Don't say I didn't warn you.

If you or a loved one has questions about a DUI case in Fullerton, 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

How to Legally Grow Marijuana in California

If you want to grow marijuana in California (and you care about doing it legally), the first step is to stop taking bad advice from your friends.  There's a lot of misinformation out there.  Despite the recent reforms, people are still calling my office because they've been arrested for some marijuana-related crime.  Cannabis cultivation can be a minefield if you don't understand the law.

Since voters approved Prop 63, adults age 21 and older may cultivate up to 6 plants for their personal, recreational consumption.  The 6-plant limit applies to each piece of property, not to each adult.  If 3 adults live together in one house, they may cultivate a total of 6 plants in their backyard, not 18.  They can give away small amounts of their crop to friends, but they're still not allowed to sell it or trade it for anything of value.

If you have a doctor's recommendation to use medical marijuana, the 6-plant limit does not apply. You may cultivate as much as your doctor says that you need for your condition.  Be very wary, though, of so-called "99-Plant" recommendations that many doctors sell for a few extra dollars.  Remember that a rec is only as valuable as the doctor who will actually come to court and testify on your behalf.  If you are arrested and accused of cultivating an excessive amount of cannabis, do you really trust that your doctor that will show up in court and tell the judge that he examined you in good faith?  Do you believe he will testify that, in his professional opinion, you need 99 plants for your personal use?

Also keep in mind that doctors cannot issue "cultivation licenses" in California.  Regardless of whatever bad legal advice your doctor gave you (and regardless of whatever worthless piece of paper he sold you), his 99-plant recommendation does not entitle you to grow a large crop or to sell your excess harvest to a local dispensary.  There is a legal way to grow marijuana for sale (keep reading), but you should not simply rely on your doctor's 99-plant rec as a defense to marijuana charges.

There are currently 2 ways to legally sell marijuana (or to exchange it for anything of value) in California.  The first option is to apply for a license from the California Bureau of Cannabis Control.  The BCC issues specific licenses for indoor and outdoor grows of various sizes.  If you hold a valid, state-issued cultivation license, you may grow marijuana and sell it for profit, subject to some complicated regulations.  Call our office if you have questions about applying for one of these licenses. 

The other option to legally cultivate cannabis for sale is through a non-profit medical marijuana dispensary.  Dispensaries can take many forms -- unincorporated associations, agricultural collectives, or nonprofit mutual benefit corporations (this is the most common form and the method that the California Attorney General recommends).  Buyers and sellers of medical marijuana must be members of the same non-profit dispensary; sales from one entity to another entity (or from one club to another club, or from one freelance grower to a collective, etc.) is still illegal.  If you want to grow for a medical dispensary, you must be a member of that dispensary, and you should have some written documentation to that effect.  You should either be employed by the dispensary as a grower, or else you should have a written contract between yourself and the dispensary wherein you agree to provide cannabis and the club agrees to pay you a salary.

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

Thanks for reading.

Orange County Marijuana 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

What if I Get Pulled Over and My Car Smells Like Weed?

There's a lot of misinformation on this topic.  Unfortunately for a lot of my clients, that often means that they call me after they've been arrested for DUI.  Don't make that mistake.

Driving under the influence of marijuana is a DUI in California, just like driving under the influence of alcohol.  It doesn't matter if you're over 21 or if you have a doctor's recommendation to use medical marijuana.  Think of weed like alcohol -- just because you're allowed to possess it doesn't mean that you're allowed to operate a vehicle while you're under the influence.

The big difference between marijuana and alcohol is that there's no legal limit for THC and no reliable way to determine a driver's degree of impairment with weed.  Blood, urine and saliva tests cannot accurately tell us whether or not a subject is dangerously intoxicated by marijuana.  This means that marijuana DUIs are pretty arbitrary.  They often turn on the police officer's opinion based on his observations before and after the traffic stop.  The factors that I usually see listed in police reports include:

• Bad driving
• Smell of marijuana coming from the interior of the vehicle
• Driver observed smoking in a moving vehicle
• Red, glassy eyes
• Any signs that the driver is disoriented or has difficulty following instructions, etc.

The strongest evidence that the police usually gather in these cases, though, is the driver's own statements.  Way too many of my clients talk themselves into trouble after a traffic stop.  If you admit to consuming marijuana before (or while) driving, you will be arrested on suspicion of DUI. 

Without your admission of recent marijuana use, the police might not have enough evidence to arrest you.  If you keep your mouth shut and the police arrest you anyway, we'll have a much stronger defense when we appear in court.  

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

Thanks for reading. 

Fullerton Marijuana Lawyer

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

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

Changes Keep Coming for Medical Marijuana in California

Updated 2/4/16:  Governor Brown has signed AB-21 into law.  It takes effect immediately.

Change is the only constant when it comes to medical marijuana in California. I've previous written about the Medical Marijuana Safety and Regulation Act, which will completely upend the way we regulate medical weed here in the Golden State.  Those posts are available here and here.

It seems that our legislature loves to keep us on our toes, though.  Amendments to the proposed rules are coming faster than anyone can keep track.  Before we've had a chance to wrap our head around the latest package of new regulations, the State Assembly calls an audible and changes the play at the line of scrimmage.  "Omaha! Omaha!"

The latest game-changer is AB-21.  That bill has been approved by the Assembly and the State Senate.  Now it awaits the governor's signature.

Under the MMRSA as originally written, local cities and counties would be allowed to create their own land use regulations regarding cultivation and distribution of medical marijuana IF (and only if) they had comprehensive regulatory schemes in place before March 1, 2016. If the local municipality had no land use regulations for medical marijuana by that date, then the state would be responsible for determining how and where dispensaries could operate.

Many cities were eager to maintain local control over medical marijuana, so they scrambled to impose blanket bans on any marijuana-related activities.  Most observers (including myself) expected cities to reexamine their bans some time after March 1. We understood that they didn't intend to permanently prohibit medical marijuana, but they were forced to adopt sweeping bans as "place holders", to preserve local zoning authority.  This rush to ban marijuana-related activity was an unintended consequence of our great experiment to better regulate medical cannabis.

AB-21 is the legislature's latest attempt to save the MMRSA before it even takes effect.  If signed by Governor Brown, AB-21 will delete the March 1 deadline for cities to adopt land use rules for medical marijuana.  Municipalities will instead by allowed to adopt their own zoning rules at any time.  By deleting that deadline from the MMRSA, AB-21 will remove the urgency that cities had been facing to adopt harsh, "emergency" anti-pot laws.

In the time it's taken me to write this, the legislature has probably passed another set of confusing amendments to the Medical Marijuana Safety and Regulation Act. Stay tuned to see how this all plays out.

If you or a loved one has questions about starting a medical marijuana dispensary in Southern California, call us for a free attorney consultation.  (714) 505-2468. Ask for John. Thanks for reading.

Santa Ana Marijuana Lawyer

New Regulations for Medical Marijuana in California

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

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

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

State-Issued Marijuana Licenses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Confused yet?  Here's where it gets interesting.

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

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

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

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

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

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

Thanks for reading.

Santa Ana Medical Marijuana Lawyer

Appearing in Court at the West Orange County Justice Center in Westminster: What to Expect

Part 4 in my series about appearing in court in Orange County. Today's post is focused specifically on the West Justice Center in Westminster.  For more information about appearing in Santa Ana, Fullerton or Newport Beach, read my previous posts, below.  

The West Orange County Justice Center is located at 1841 13th Street in Westminster, about 1 block east of Beach Blvd.  From the 22 freeway, exit at Beach Blvd and head south.  From the 405 Freeway, exit at Beach and head north.  

The Westminster courthouse hears criminal cases from Costa Mesa, Cypress, Fountain Valley, Garden Grove, Huntington Beach, Los Alamitos, Seal Beach, Stanton and Westminster. 

There are 3 parking lots -- one reserved for jurors, a free lot and a garage that charges to park.  The free lot fills up early, so show up before 8:15 to save some money on parking.  

Like the Harbor Justice Center, the courthouse in Westminster features an outdoor walk-up window for the clerk's office.  You can make a payment, request an extension, reserve a court date, or obtain information about your case without going through the security screening process. 

Also like the other courts in Orange County, you must find your name on the electronic display board as soon as you enter the building.  The board will direct you to the appropriate courtroom.  

Most misdemeanor arraignments and traffic matters are heard downstairs, in department W-3.  For more information about what to expect at your misdemeanor arraignment, read my post about appearing at the North Justice Center in Fullerton, below.  

If you plead "not guilty" at your misdemeanor arraignment, subsequent pre-trial conferences will be heard upstairs, in department W-15.

Most felonies are heard downstairs in departments W-1 or W-2.  Once felony cases are set for preliminary hearings or motions, they are assigned out to a different department, depending on availability.  

The West Justice Center is the smallest courthouse in the Orange County justice system.  They pack a lot of people into a few rooms, so it gets a little crowded.  There's no cafeteria inside the building, but there is a vending machine at the north end of the second floor.  There's also a hot dog vendor out front if you're brave and hungry enough.  

If you or a loved one has to appear in court at the West Justice Center in Orange County, call us for a free consultation.  (714) 505-2468.  Ask for John.  

Thanks for reading. 

Westminster Criminal Defense Attorney

Appearing in Court at the Central Orange County Courthouse in Santa Ana: What to Expect

This post in part 2 in my series about what to expect when appearing in an Orange County courthouse.  Today, I want to discuss the largest and busiest court in the Orange County criminal justice system -- Santa Ana, A.K.A. Central Orange County.

The Santa Ana courthouse is located at 700 Civic Center Dr. West.  From the 5 Freeway, exit at Santa Ana Blvd. and follow the signs to the court.  The Central Justice Center hears criminal matters from Santa Ana, Tustin, Villa Park and Orange.

There is a large parking garage, but the fee to park is $1.50 per 20 minutes (as of 11/17/15).  There is also metered parking on surrounding streets and some lots in the area that charge a flat fee.

Since the courthouse is so big and busy, make sure you allow yourself enough time to get through the security line.  Some judges are more strict than others regarding punctuality.

The Central OC Courthouse complex features a "tower" and an "annex".  The tower is obvious -- it's the tall part.  The annex is the 3-story wing that runs along the west side of the building.

Most misdemeanors in Santa Ana are heard on the second floor of the annex.  Arraignments are usually heard in department C-54, and subsequent pre-trial conferences are conducted down the hall, in department C-48.  For more information regarding what to expect at your arraignment and what happens at a pre-trial conference, see my previous post about appearing at the North Justice Center in Fullerton.

Felonies in Santa Ana are generally handled in department C-5 until they are assigned to another room for preliminary hearings and trial.  Department C-5 is located on the second floor of the tower.

Attorneys who handle felony criminal matters in Santa Ana understand the importance of proper preparation at the early stages. Because of the building's heavy volume, judges in Santa Ana are under tremendous pressure to ensure that cases are handled expeditiously and without unnecessary delays.  They expect that attorneys are working diligently to resolve their matters from day-1.  Judges will not tolerate excessive continuances or inexplicable "foot-dragging". Attorneys from out of the area are often surprised by our local judges' hard-line policies against granting continuances.

As a criminal defense attorney who practices primarily in Orange County, I understand the importance of diving in and getting to work immediately when I'm dealing with felonies in Santa Ana.  Time is of the essence in these cases.  Discovery requests must be served on the DA at the time of arraignment to avoid delays.  Investigations must be conducted expeditiously.  I try to predict issues before they arise so that I can plan our strategy accordingly.  I even prepare motions in advance so that they're ready to file on short notice.

If you or a loved one has a criminal case in or around Orange County, call us for a free consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Santa Ana Criminal Defense Attorney

Appearing in Court at the North Orange County Justice Center in Fullerton: What to Expect

If you've been arrested or cited in North Orange County, your court appearances will probably be held at the North Justice Center in Fullerton.  North OC includes Anaheim, Fullerton, Buena Park, Brea, Yorba Linda, La Palma, La Habra and Placentia.

Today's post is about what to expect when you appear at the Fullerton courthouse.

The North Justice Center is located at 1275 N. Berkeley Ave., near the corner of Harbor Blvd. and Valley View, just north of Downtown.  From the 91 freeway, exit at Harbor and head north for about 2 miles.

First, some good news:  Plenty of free parking.  The courthouse in Fullerton features two large parking lots. If the upper lot is full, check down below.

Be prepared to go through a security screening, including a metal detector and x-ray of your bags.  They will not allow you to enter the building with any type of weapons, tools, sporting equipment, skateboards or cigarette lighters.

If you received a letter in the mail instructing you to appear in court, check the electronic monitors for your name as soon as you enter the building.  The big T.V. screens will direct you to the appropriate courtroom.  If your name does not appear on the screen, go straight to the clerk's office in room 350, located on the 3rd floor.

Misdemeanors

If you're appearing in Fullerton for your first appearance in a misdemeanor case (including DUI), your matter will probably be heard in department N-12 on the 4th floor.  Your first appearance is called the "arraignment".  At your arraignment, the judge will officially notify you of the charges.  You will have an opportunity to resolve your case on the spot by simply pleading "guilty" if you choose to do so.

You or your lawyer must personally appear at the arraignment.  Nobody else may appear for you unless he or she is a licensed attorney.  Do not send your mom or your spouse to court on your behalf.  If you fail to appear, a warrant will be issued for your arrest.

Most misdemeanors in North Orange County are prosecuted by the Orange County District Attorney's Office.  Anaheim has it's own prosecutorial agency within their City Attorney's Office that handles all misdemeanor cases arising within the City of Anaheim.  Once you find your courtroom, the next step is trying to determine who your prosecutor will be.  If you were cited or arrested in Anaheim for a misdemeanor, then you will probably be prosecuted by the Anaheim City Attorney rather than the Orange County District Attorney.  This gets complicated. If two people are arrested for the exact same crime across the street from each other -- one in Orange and the other in Anaheim -- the person arrested in Anaheim will be prosecuted in Fullerton by the Anaheim City Attorney.  The person arrested in Orange will be prosecuted in Santa Ana by the Orange County District Attorney.  Even if the cases are closely related, the prosecutors in each case might not even be aware of the other.

Your arraignment is not the day for your trial.  The judge will not hear witnesses or evidence at the time of your arraignment.  He will not allow you to explain yourself or to tell your side of the story.  If you do not believe that you are guilty, or if you want to consult with an attorney before deciding how to proceed, you may either apply for the services of the Public Defender, or you may ask for a brief continuance to retain your own private attorney.  If you tell the judge that you want to hire a lawyer before making any decisions, he will assign a new court date in 2-3 weeks.  You will not be punished for requesting an opportunity to talk to a lawyer.  In most misdemeanor cases, your private attorney can appear at the next hearing(s) without you.

If you request the services of the Public Defender at your arraignment, you must fill out a financial declaration so that the clerk can determine whether or not you qualify for court-appointed counsel.  You may be billed for the Public Defender's services if the court determines that you have the ability to pay those costs.

After pleading "not guilty" at your misdemeanor arraignment, your case will be scheduled for a series of "pre-trial conferences" around the corner, usually in department N-9.  At these pre-trial conferences, your attorney will have a chance to sit down with the prosecutor to discuss details of your case.  The prosecutor and your attorney will attempt to negotiate a fair disposition.  Depending on the unique facts and circumstances of your case a "fair disposition" could be a dismissal, a reduction of charges, or a negotiated plea bargain.  Attorneys will also exchange "discovery" -- evidence that would potentially be used by either side at trial.  Your lawyer might share a "mitigation packet" with the prosecutor -- a collection of documents, character letters, proof of attendance at AA meetings, medical records, etc. -- to argue for leniency.

Your attorney and the prosecutor can have several pre-trial conferences while they attempt to work towards a resolution.  If no agreement can be reached, or if you do not wish to accept any plea deal, then your case might eventually proceed to trial.  If that happens, then you will be sent down the hall to department N-4.  Department N-4 controls the "master calendar" for the North Orange County Justice Center.  There, a judge will assign your case to a courtroom for trial, based on the court's availability.  If there are no courtrooms available in the Fullerton courthouse, your case can even be transferred to another courthouse in Orange County for trial (Westminster, Santa Ana or Newport Beach).

Felonies

If you're appearing in Fullerton for a felony case, your arraignment will probably happen on the 3rd floor, in department N-3.  The felony arraignment procedure is similar to misdemeanor cases, except that the judge will not allow a defendant to simply plead "guilty" at his or her first appearance, even if the defendant wants to.  Felony cases are too serious and too complicated to wrap up cleanly in a single appearance.  Your attorney will need to thoroughly review the allegations and the evidence before advising you whether or not to accept any plea deal in a felony case, and that's not possible at the arraignment stage.

After pleading "not guilty" in your felony case, you will have a series of pre-trial conferences, just like in misdemeanor cases.  Again, your attorney will sit with the DA, discuss the evidence, and try to negotiate a fair resolution.

If no reasonable resolution can be agreed upon, then your felony case will proceed to the "preliminary hearing" stage.  At the prelim, the DA will present evidence to try to convince a judge that there exists "probable cause" to "hold you to answer" for the charge.  The DA must prove that there is a good reason to believe that a felony has been committed and that you are the person who committed it.  They will usually call an investigating officer who may testify as to what he saw and heard at the time of your arrest.  The investigating officer may even testify as to "hearsay" during the prelim, even if some of these statements might not be admissible at trial.

If the judge finds that there exists "probable cause" and he decides to "hold you to answer" after the preliminary hearing, then you and your attorney will begin to prepare for trial. Long, complicated trials are usually transferred to Santa Ana. The Santa Ana courthouse is better equipped to accommodate large jury pools, crowds of spectators and reporters, and lengthy matters that might occupy a courtroom for weeks at a time.

Post-Conviction Proceedings

If you've previously been convicted of a crime, you were probably placed onto probation with lots of terms and conditions imposed. The judge might have ordered to you complete classes / counseling, take drug tests, attend AA meetings, perform community service, or pay fines. You might also have "progress report hearings" scheduled.

A "progress report hearing" is just what it sounds like -- a chance for the judge to check up on the progress of whatever program(s) you were ordered to complete.

Judges in Fullerton are notoriously strict at progress report hearings.  They expect you to fulfill your end of whatever bargain you agreed to.  If you have failed to comply, then the judge will almost certainly impose consequences.  Those consequences may include jail time.  Judges in Fullerton will not be moved by sad stories.  They don't care that the court-ordered classes have been inconvenient for you to attend or that they conflict with your work schedule.  They will not sympathize if you cannot coordinate transportation or child care.  They expect you to comply.  If you demonstrate that you cannot or will not comply with the terms of your probation, then those terms will simply be converted to straight time in the Orange County Jail.

If you expect to have trouble complying with the terms of your probation, or if you know that a violation is imminent due to circumstances beyond your control, you or your attorney must go before a judge before you miss a court-imposed deadline.  Explain the problem and bring any supporting paperwork to show the judge.  If you can demonstrate that you are making a good-faith effort to comply, and you are proactive about bringing your problem to the judge before your problem becomes a violation, then the court might accommodate you.  The judge can grant you an extension or convert a portion of your sentence (e.g., fines to community service, or vice versa).

That's the short version of what to expect when appearing in court at the North Orange County Justice Center in Fullerton.  Here's a cheat-sheet for important offices located inside the building:

-Collections Department:  1st floor.  They accept payments for all criminal and traffic matters. The line gets long by mid-morning. I'd recommend getting there early.

-Criminal & Traffic Clerk:  3rd floor. If you show up but your name is not on the electronic screen, check in here. Start here if you need to add yourself onto the court's calendar (to recall a warrant, to request an extension for something, etc.).

-District Attorney's Office:  3rd floor, along the North wing.

-Probation Department:  3rd floor, near the Criminal & Traffic Clerk

-Anaheim City Attorney's Office:  4th floor, along the South Wing

-OneOC (Volunteer Center):  4th floor. Go here to sign up for community service if the judge orders you to do so. OneOC will assign you to an approved non-profit group in your area where you may perform your labor.

If you or a loved one is arrested in Fullerton / North Orange County, or if you have a pending court date in the North Justice Center, call us for a free consultation.  (714) 449 3335. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

Brag Board: 10/30/15

I haven't updated this blog lately because I've been so busy negotiating great deals for my clients. Here are a couple recent success stories that I wanted to take a moment to brag about.

-People vs. A.T. (Riverside):  Deputies from the Riverside County Sheriff's Department served a search warrant at my client's house.  They found hundreds of marijuana plants growing in an elaborate hydroponic system.  My client also had several pounds of processed, dried marijuana, a few ounces of concentrated cannabis ("honey oil", "butane hash oil", or "BHO"), equipment used to manufacture the hash oil, cash, firearms and ammunition.  As a previously-convicted felon, my client was legally prohibited from possessing guns and ammo.

My client was charged with 5 felonies: cultivation of marijuana, possession for sale, manufacture of concentrated cannabis, possession of firearms by a felon, and possession of ammunition by a felon.  The maximum penalty was approximately a decade in prison.

We learned that the sheriffs had relied on a confidential informant to obtain their search warrant. We demanded to know the identity of the informant so that we could effectively challenge the legality of the warrant.  I wanted to know who this person was, what type of information he had provided to the police, how the police determined that the information was reliable, and what the police told a judge to get the warrant.

In order to preserve the confidentiality of their informant, the DA made my client an offer that was too good to refuse:  probation and a little house arrest.  As part of the negotiated deal, my client may use medical marijuana while on probation.

I call that a win.


-People v. M.F. (Fullerton):  The CHP and Anaheim PD found 15 pounds of marijuana in my client's apartment.  She was charged with possession for sale.  The maximum penalty was 3 years in prison.

In this case, police entered my client's apartment under a bogus pretext.  They claimed that they were investigating a suspected burglary and that they were checking on the "welfare" of the resident, because they had observed an unknown subject fleeing from her balcony.  Luckily, the cops were wearing body cameras and we could prove that their story was nonsense.

Again, the DA made my client an offer that was too good to refuse.  They reduced the charge to a misdemeanor and ordered 10 days of community service.  The minute my client completes her community service, probation will terminate.  Once that happens, she will immediately become eligible for an expungement.

10 days of community service and a couple weeks of probation for 15 pounds of marijuana?  We'll take it.


Both of these cases are good examples of why no self-respecting criminal defense attorney keeps track of his or her "win / loss" record.  If you ever hear a criminal lawyer brag about his "win / loss" record like a boxer, you should be very skeptical.  Maybe hire somebody else.

In many criminal cases, it's impossible to distinguish a true "win" from a true "loss".  When a client is facing a long prison sentence and the evidence clearly shows that he committed the crime(s), but he accepts a plea deal that seems disproportionately light, does that count as a "win"?  When the facts tend to show that my client belongs in prison, but I successfully negotiate a "slap-on-the-wrist", does that go down in the win column or the loss column?

I'm very proud of the work that I did on behalf of my clients in both of these cases, but both of the clients ultimately stood before a judge and pled "guilty".  I consider both of the above-described cases to be "wins", even though both clients were convicted.  And I still don't keep track of my overall "win / loss" record.

If you or a loved one is accused of a crime, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Announcing Our New Fullerton Location

I'm proud to announce the opening of our firm's newest branch office on the 9th floor of the Fullerton Towers, 1440 N. Harbor Blvd.  Located just a block from the Fullerton Courthouse (North Orange County Justice Center), this space will allow us to better serve our clients in Fullerton, Buena Park, Brea and Anaheim.

Our main office will remain in Santa Ana.  I also plan to keep branches in Riverside and San Bernardino for the convenience of my clients in the Inland Empire.

As a local boy, I'm excited about this new opportunity to serve clients in my home town.  There's no place I'd rather be.

If you or a loved one is accused of a crime in Fullerton, call for a free consultation.  (714) 505-2468. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer