New Law Allows Individuals with Drug Convictions to Earn Teaching Credentials

Until last year, the California State Education Code prohibited the Commission on Teacher Credentialing to issue a credential to any person who had previously been convicted of a crime involving controlled substances.  

Gov. Newsom signed SB-731 into law in 2022.  That law amended the Education Code to provide a path for some individuals with prior drug convictions to earn teaching credentials.  The conviction must be more than 5 years old and the applicant must have already received an expungement.  If the applicant meets both of those criteria, the Commission may not use the old conviction as a basis to deny the issuance of a credential.  

Our office has extensive experience with expungements in California.  Even if other attorneys have told you that you are not eligible, call us for a second opinion.  Many lawyers are not familiar with recent changes in the law that now make relief available to people who were previously disqualified.  

If you or a loved one has ever thought about becoming a teacher but were deterred by an old drug conviction, we can help.  Call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Expungement Lawyer

Court Rules that Drug Users are Allowed to Possess Guns

In an opinion published Wednesday (USA v. Daniels), the Second Circuit Court of Appeals invalidated a federal law that prohibited "unlawful users of controlled substances" from possessing firearms.  Applying the Bruen "historical analogy" test, a 3-judge panel found that "at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at some point from possessing guns at another."

The defendant had been stopped in Mississippi for driving without a license plate.  A DEA agent noticed some roaches in his ashtray and a search of the vehicle uncovered two loaded firearms.  Mr. Daniels admitted to smoking marijuana approximately 14 times per month, but officers never asked if he was under the influence at the moment and no drug tests were performed.  He was arrested on suspicion of violating 18 USC 922(g)(3), a federal law that prohibits "unlawful users of controlled substances" from possessing firearms.  Mr. Daniels was convicted by a lower court and sentenced to serve 4 years in prison.  

Anyone who has ever purchased a firearm from a licensed dealer knows about Form 4473.  The standard questionnaire is used to screen out buyers who are federally prohibited from possessing firearms.  It asks about felony convictions, dishonorable discharges from the military, involuntary commitments to mental hospitals, whether the buyer has ever renounced his / her US citizenship, and whether the buyer is a "unlawful user of controlled substances", among other things.  In 2016, the ATF updated the form to warn that marijuana is still illegal under federal law, regardless of whether or not it has been legalized in the buyer's home state.  Making a false statement on the Form 4473 is punishable by a maximum of 10 years in prison. 

The court in Daniels spent a significant portion of the opinion struggling with how to define a "historical analogy".  How "analogous" does a historical law have to be to the modern law at issue?  The judges determined that the answer depends on whether a modern gun restriction attempts to address general societal issues which existed at the time of the founding, or "unprecedented societal concerns that the Founding generation did not experience".  If the issue is one that the Founders would have understood, then modern analysts should look for distinctly similar historical examples of regulation.  On the other hand, if today's law attempts to regulate some issue that the Framers could not have foreseen, then modern judges should look for historical examples of regulations that are merely "relevant", even if not "distinctly similar".  

The Framers of the US Constitution only knew cannabis as a source of rope, not as an intoxicant.  They had no thoughts about marijuana or the modern drug trade, but they were very familiar with alcohol, alcohol abuse and the dangers of handling firearms while under the influence.  Since alcohol is our closest historical analogy to cannabis, the judges in Daniels pored over early American laws and regulations for any examples of how (or if) the Founders approved of disarming intoxicated individuals.  They note that very few such laws exist.  A 1656 Virginia law, for instance, prohibited the discharge of firearms while intoxicated, but not for the reasons that might seem intuitive for a modern observer.  At the time, lawmakers were primarily concerned with conserving scarce gunpowder and with the risk that "ill-timed gunshots might be mistaken for a signal that local Indians were attacking".  The Virginia law did not prohibit intoxicated individuals from owning or possessing firearms.  

The court cited a New York law, enacted in 1771, which prohibited intoxicated individuals from discharging firearms between December 31 and January 2 because of the "great damages" done over the New Year holiday.  It also mentioned a handful of local statutes that prohibited militiamen from carrying weapons while intoxicated.  Aside from these few examples, no other notable restrictions appeared on law books until the Reconstruction period, following the Civil War.  At that time, only 3 states prohibited the carrying of firearms while intoxicated, and no state disarmed individuals merely for being "users" of alcohol.  

The court ultimately concluded that no such historical analogy exists to justify disarming individuals merely for their status of being "unlawful users" of controlled substances.  It noted that the case might have turned out differently if the state could present some evidence that Mr. Daniels was intoxicated at the time he carried the weapons, or that he was dangerous to public safety due to his drug use.  

Cases like this are coming down every week, and they are continuing to completely reshape the way we think about gun laws in California.  I will do my best to stay on top of the latest developments, so check back often for updates as they become available.  

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

Thanks for reading.  

Fullerton Gun Lawyer

Did the 9th Circuit Just Legalize Butterfly Knives?!?

A 3-judge panel of the 9th Circuit Court of Appeals just invalidated Hawaii's ban on butterfly knives.  Ruling in the case of Teter v. Lopez, judges found that a Hawaii law which prohibited the manufacture, sale, transportation and possession of butterfly knives violated the Second Amendment of the US Constitution.  

The Old Rule

Readers of this blog know that the US Supreme Court recently adopted a new test to determine whether or not a specific law violates the Second Amendment's right to bear arms.  

Previously, the court weighed the importance of a state's interests and considered the degree to which the law was related to serving that interest vs. the degree to which it infringed upon some "core" Second Amendment right.  If the law was closely related to achieving some important government interest (i.e. reducing gun violence, etc.), then it was generally allowed to stand.  

The New Rule -- Bruen

In Bruen, though (decided last year), the Supreme Court announced a new test to apply in cases involving Second Amendment challenges.  

Rather than considering the importance of a state's interests and the degree to which those interests relate to a given law, lower courts must now apply a "historical analogy" test to Second Amendment issues.  If the law in question is similar, or "historically analogous" to some law that existed at the time the Constitution was adopted, then we can assume that the Framers approved of the restriction and that the law is constitutional.  If some modern restriction is without historical precedent, though, then we should conclude that the Framers would not have accepted it and that the modern law is unconstitutional.  

Teter

Hawaii laws prohibit the manufacture, sale, transportation and possession of butterfly knives.  Plaintiffs in Teter were law-abiding residents of Hawaii who wanted to -- and were legally prevented from -- purchasing butterfly knives for self-defense.  They brought a suit against the Attorney General of Hawaii to invalidate the state's ban.  A lower court had ruled for the state and plaintiffs appealed to the 9th Circuit. 

The appellate court started by establishing that butterfly knives are "arms" and that they, therefore, fall within the protections of the Second Amendment. 

Once the court overcame this initial hurdle, it spent most of the published opinion analyzing various historical knife laws that Hawaii cited as precedent for its restrictions.  Judges examined several 200 year-old statutes that prohibited certain types of people from carrying specific weapons at particular places and times.  Some historical laws banned the "concealed carrying" of Bowie-type knives, along with cane swords and other objects that were not immediately identifiable as deadly weapons.  Many of these archaic laws included exceptions for law-abiding people to carry otherwise-prohibited weapons for self-defense, while traveling or "carrying on lawful business", etc.  

None of the laws that the State of Hawaii cited as historical precedents specifically banned butterfly knives.  The judges reasoned that a butterfly knife is more analogous to a typical pocket knife than it is to a Bowie knife, and that none of the historical laws prohibited pocket knives.  The court also noted that most of the laws cited by Hawaii prohibited the carrying of certain weapons in public, but not the manufacture, sale or private ownership of those same weapons.  

The judges concluded that no historical precedent supported the state's position and remanded the case to the lower court for "further proceedings consistent with this opinion".  

What Does This Mean for California?

Butterfly knives are included within the definition of "switchblades" under section 17235 of the California Penal Code.  

Section 21510 of the California Penal Code makes it a misdemeanor to carry a switchblade in the passenger area of a car or "upon the person".  It also prohibits the sale or transfer of any switchblade.  That includes giving, loaning, or offering to sell a switchblade.  

Interestingly, California law does not prohibit the manufacture, transportation or possession of a switchblade.  Switchblades may be legally produced in California for sale outside of the state (and imported into the state if purchased elsewhere), kept at home, or carried in the trunk of a car.  

Since Hawaii's law was more restrictive than California's, it is not clear how the court would rule on a challenge to PC 21510.  The California law seems to be more in line with the historical cases that prohibited certain types of weapons in specific places.  At the same time, the courts could reason that a switchblade or butterfly knife is more analogous to a pocket knife than it is to a Bowie knife, and that there is no historical precedent for any restrictions.  

We will be following this closely, so check back for updates as they become available.  

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

Thanks for reading. 

Orange County Knife Lawyer

CA Expungements Just Got Even Cheaper and Easier

Effective July 10, 2023, the California State Legislature has repealed the filing fee that courts could impose for expungement petitions.  

Section 1203.4 et seq. of the California Penal Code previously allowed local courts to set expungement filing fees up to $150 per case.  Actual fees varied, depending on the courthouse and on whether or not the judge's decision required a formal report from the probation department.  

Starting this month, though, there is no fee to file an expungement petition anywhere in the State of California.  Take advantage of this while it lasts.  

Our office has been processing expungements in Southern California for over a decade.  We have the experience that it takes to to file applications quickly, efficiently and correctly the first time.  This new amendment to the law is going to make the process even smoother and cheaper for our clients, so I am happy to announce it.  

Currently, the court grants expungements anywhere from 3-8 weeks after they receive the petitions.  I am curious to see if that timeframe changes now that the court may experience a higher volume of petitions and fewer funds will available to pay for the additional manhours required.  

If you or a loved one have questions about applying for an expungement in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Expungement Lawyer

Expunge Your Record with OC's Best

There are plenty of lawyers in Southern California who are perfectly capable of preparing and filing your expungement petition, but there can only be one "best".   When it's time to clean up your criminal record, don't settle for "good enough".  Instead, call the firm that has the experience to get the job done quickly, affordably, and correctly the first time.

What Does an Expungement Do?

California law provides several different options to clean up old criminal records, to reduce felony convictions to misdemeanors (and misdemeanors to infractions, in some cases), and to seal arrest records from public view.  We offer free consultations to help decide which option is best for each prospective client. 

A traditional expungement results in a case being dismissed after the defendant has completed serving all penalties.  If the defendant has done so and does not have any other open or pending cases, then he or she is automatically entitled to have the case dismissed.  The old charge may still show up on some official records, but employers may not use expunged cases to discriminate against job applicants.  

In the past couple of years, the legislature has expanded the law to allow expungements in cases that were not previously eligible.  If you've been denied in the past, call us to see whether or not you might be eligible to reapply.  

Our Advantages

Our firm's small staff and low overhead help keep costs down for our clients.  In most cases, we can successfully process expungement petitions for a fraction of what bigger firms charge.  We even offer easy payment plans to fit any budget.  

When you hire us to perform legal services, you're not paying for our bloated advertising budget or lavish amenities; you're paying for the results that we consistently deliver.  

Each of our clients receives one-on-one, personal attention from the attorney who will be responsible for handling their case to completion.  We never hand off important work to junior associates or outsource our cases.  If you have a question, call or email any time for a prompt response.  

We work quickly and we work efficiently.  Our office has the experience necessary to prepare expungement petitions, file them with the court, and serve them on the DA within 24-48 hours after we're hired.  Depending on the court's backlog, expungement orders may be granted as soon as 3 weeks after they're filed.  

Personally, expungements are some of my favorite cases to handle.  I've heard other attorneys complain about the tedious paperwork, but I find expungement petitions to be rewarding.  As a criminal defense attorney, it's always great to call a client when I have some good news to share.  

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

Thanks for reading. 

Orange County's Best Expungement Lawyer

The Latest Developments in California Gun Laws

I've previously written on this blog about California's complicated relationship with firearms and the Second Amendment.  The Golden State has a well-deserved reputation for its progressive policies, and its strict approach to gun control is no exception.  Over the past decade, the state has enacted a slew of legislation, aimed at restricting access to entire classes of popular weapons.  This blog post will provide an overview of the most noteworthy recent changes to California's gun laws, and what those changes mean for gunowners. 

Ban on "Assault Weapons"

AB 1135, passed in 2016, expanded the definition of an "assault weapon" to include some of the most popular firearms in use today.  Virtually any semi-automatic, centerfire rifle with a removable magazine now falls within the class of these highly-restricted weapons.  The same is true for pistols with magazines located outside of the grip.  

In 2017, the Dept of Justice adopted an online system and required registration of all "assault weapons" in the state.  Firearms that were lawfully registered before the deadline are grandfathered in, but they can never be transferred to any other owner, even upon death. 

Enhanced Background Checks

All firearm transactions in California must be conducted through a licensed dealer, even private party transfers. 

In 2016, California voters approved Prop 63, making it the first state in the country that required individuals to pass a background check before purchasing ammunition. 

High-Capacity Magazines

Prop 63 also banned the possession and sale of "high capacity" magazines (magazines that hold more than 10 rounds -- considered by some to be "standard capacity" magazines).  This particular law has bounced back and forth through the appeals process, where it was briefly suspended, then upheld, then finally overturned by the US Supreme Court.  

Some of us remember "Freedom Week" in 2017, when Judge Benitez placed the law on hold and temporarily allowed the importation of high-cap mags.  The 9th Circuit Court of Appeals reenacted the ban before the Bruen decision turned everything on its head.  More on that below.  

The status of California's high-cap magazine ban is up in the air today.  We can expect a lot more litigation before this one is finally worked out.  Check back for developments as they become available. 

"Red Flag" Laws

California's "red flag" laws allow family members and law enforcement to request the temporary removal of firearms from individuals who pose an immediate threat to themselves or others. 

Gun Violence Restraining Orders (GVROs) reflect an attempt to strike a constitutional balance between public safety and respect for the individual's due process rights.  To help maintain this balance of interests, the legislature chose to limit both the duration of these orders and the standing to initiate a petition.  

"Standing" (the right to file a request for a GVRO) is limited to close family members and police officers.  You cannot, for instance, file a GVRO against a neighbor or a coworker.  Allowing strangers to initiate GVRO requests would open the floodgates to abuse and would jam the courts with frivolous filings.  

When a request for a GVRO is filed, the judge may immediately grant a temporary order if he believes that some extreme risk of harm exists.  If a temporary order is granted, the prohibited individual has the right to appear before the court within 21 days, where he will have an opportunity to oppose the request.  

Ban on "Ghost Guns" 

The California legislature passed AB 879 in 2019, banning the possession and manufacture of homemade "ghost guns".  

This law requires individuals to obtain a unique serial number and undergo a background check before manufacturing a firearm, and also to register any unserialized firearms in their possession. 

Safe Storage Requirements

California enforces strict safe storage requirements through Assembly Bill 1968, implemented in 2020.  This law mandates that firearms be stored securely when not in use.  Individuals who fail to adequately secure their weapons may be held civilly and criminally liable if the weapons is accessed by an unauthorized person and used to commit a crime. 

Bruen -- The Wild Card

Since the Supreme Court's ruling in Bruen last year, California's vast gun control laws may rest on shaky legal ground.  That ruling completely upended the way that courts analyze Second Amendment challenges.  Since the court announced this groundbreaking shift, gun control laws have been falling like dominoes all around the country.  

Bruen created a new test for the courts to apply when lawsuits challenge the constitutionality of some gun control law.  Previously, the state was only required to prove that the proposed law served to protect an "important" government interest (i.e., preventing gun violence) to pass constitutional muster.  If a limit on magazine capacity might reduce the lethality of mass shootings, then that was enough and the law was allowed to stand.  

In Bruen, though, the court struck down this old test.  Instead, it ruled that lower courts should look to historical precedent to decide whether or not some modern gun control law is analogous to a rule that existed at the time of the Founding (or if the Founders would have likely approved of the proposed restriction).  If the law in question has no historical analogue, then it is unconstitutional.  

The new Bruen test has been interesting to watch in practice.  What did the Framers think about AR-15 rifles?  Would they have allowed local states to prohibit or restrict their ownership?  The AR-15 obviously did not exist at the time of the Constitution's adoption, but individuals back then generally possessed the same weapons that were available to the army.  What about owning canons?  Or carrying weapons within city limits?  These are all questions that will probably come before the courts in the near future.  

Conclusion

Gun laws in California are complicated and constantly changing, but there are many defenses available to individuals who are accused of violating them.  Our office has extensive experience defending against all kinds of weapons-related charges.  

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

Thanks for reading.  

Orange County Gun Lawyer

What is the Statute of Limitations for Arrest Warrants in California?

The "statute of limitations" refers to the period of time after the commission of a crime in which prosecutors must file criminal charges, or else be barred from doing so.  The clock starts ticking as soon as the crime occurs.  If time expires before DA files their case, then the defendant is untouchable.  He has an "affirmative defense".  If criminal charges are filed some time after the statute of limitations has lapsed, the defendant's attorney will simply demonstrate that the complaint is defective and must be dismissed.  

Keep in mind, though, that the statute of limitations has nothing to do with the period of time in which the defendant must be brought to court after the commission of a crime.  It only refers to the period in which the DA must file charges.  That causes a lot of confusion.  

Here's a common situation:  A person is cited or arrested for some minor crime.  He shows up for court, but the DA has not filed any charges yet, so he is told to go home.  After a few months-- but still within the statute of limitations-- the DA eventually gets around to filing the case.  They mail a "Notice to Appear" letter to the defendant's last known address.  The defendant never receives the letter, so he never appears for his court date.  A warrant is issued for his arrest.  Several years later, he is surprised to learn that he has an active warrant.  

The SoL would not be the appropriate defense here because prosecutors DID file charges within the proscribed time limits.  A warrant was issued when the defendant failed to appear in court, and the warrant has remained outstanding ever since.  The warrant will never simply go away on its own.  There is no statute of limitations for arrest warrants in California.  

Even if the SoL doesn't apply, though, a defendant in this situation has another option.  When there has been some long delay between the filing of charges and the defendant's first court appearance, the issue is not with the statute of limitations.  Instead, the question is whether or not the defendant's constitutional right to a speedy trial has been violated.  

Both the US Constitution and the California State Constitution guarantee the right to a "speedy and public trial".  If the government filed criminal charges against some person and then allowed those charges to hang open for a prolonged period time without making an adequate effort to bring that person to court, then the defendant might have a viable defense based on this unconstitutional delay.  

Speedy trial violations are challenged with Serna motions.  The judge will weigh a lot of factors to decide a Serna motion.  The first consideration is the length of the delay.  Short delays might be excusable.  The longer the delay has been, though, the harder it will be for the DA to overcome.  6 months is usually the threshold where a delay starts to drift toward "unconstitutional".  

The next big consideration in any Serna motion is always the blame for the delay.  If the defendant knew about his court appearance and chose to flee, he will have a hard time convincing a judge that his rights have been violated.  If the DA mailed their "notice to appear" letter to the wrong address (or failed to send a letter at all), the blame might lie with prosecutors.  Several years ago, I had a case in which the DA mailed their notice to my client's home in New Orleans, LA.  For some reason, the envelope was addressed to "New Orleans, CA", so my client never received it.  That Serna motion was granted and all charges were dismissed.  

The final consideration in a Serna motion is any prejudice caused by the delay.  "Prejudice" can be actual or presumed.  If witnesses have died or evidence has been lost, the defendant might be able to prove actual prejudice.  He cannot properly defend himself due to the amount of time that has elapsed.  When the delay has been over a year, the court will also presume some prejudice, just based on the fact that memories fade and that the defendant has been saddled with criminal charges for an undue length of time.  Even if the defendant cannot point to any specific lost piece of evidence, the prosecutor will bear the burden of proving that no such presumed prejudice exists.  

Sometimes, arrests warrants are issued after the defendant has already make a court appearance in his case.  Maybe he showed up for the first hearing or two, then stopped attending.  In those cases, neither the SoL nor speedy trial rights apply.  Any warrant will remain active until the defendant shows up to address it.  The same is true for warrants issued after conviction (probation violations, etc.).  The defendant may have other viable defenses based on missing witnesses, lost evidence, fading memories, etc., but he has no statutory or constitutional right to have the case tossed.  

If you or a loved one has an arrest warrant in Orange County, Los Angeles, Riverside or San Bernardino, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Orange County Warrant Lawyer