The Truth About DUI Lawyers

If you or someone you love has been arrested for a DUI, one of your first decisions must be whether or not to hire a private attorney.  Before you invest thousands of dollars on a stranger, I think it's important to have a good understanding of what a DUI lawyer can (and can't) do for you.

If your expectations of your attorney are unrealistically high, you will be disappointed and angry.  You might feel like your attorney made false promises and then ripped you off.  If your expectations are too low, you WILL get ripped off by an unscrupulous dump truck law firm.  The key, then, is to develop a proper sense of the role that DUI attorneys actually play in the process and how they can help.

At the most basic level, your attorney's job is to collect the facts, to develop a thorough understanding of your case, and to concisely explain how the law fits into those facts.  He should be able to lay out your options, your possible possible defense strategies and the risks associated with each of those strategies so that you are prepared to make well-informed decisions.

Your lawyer should take the time to outline the process so that you understand what to expect at each hearing.  Ultimately, he or she should guide you to the best conclusion possible under the circumstances, depending on your priorities.  If your attorney has done the job effectively, you should walk away with the feeling that you were treated fairly and that you received the best disposition possible.

And speaking of priorities, your attorney must have a good understanding of your goals and what you hope to achieve.  Of course, every client wants to avoid excessive penalties, but no two clients are in the exact same position.  Some defendants want to minimize their fines and fees, for example.  Others have no concern for expense, as long as they can be free from probation as soon as possible.  In addition to explaining various legal concerns, your lawyer should take the time to listen and to understand your personal situation so that you don't get shoehorned into a deal that doesn't fit.  

In addition to court-ordered penalties (probation, fines, mandatory classes, jail time, etc.), a DUI conviction may have "collateral consequences" -- things that the court has no control over.  Collateral consequences of a DUI may include things like discipline at work, an angry spouse, and an increase in the cost of your insurance.  The court will not warn you about these extrajudicial penalties, but your lawyer should.  Again, your attorney must take some time to understand your personal priorities.  

DUI lawyers will save you a lot of time, money and stress.  They will make your court appearances for you so that you don't have to miss work.  They will work to reduce your penalties (ideally by earning a reduction or a dismissal of the charges entirely, if possible).  They will alleviate your stress by ensuring that you understand the process and your options and they will arm you with good information so that you are empowered to make sound decisions.  

It's also important to remember, though, that DUI lawyers are not wizards.  They cannot change the facts of your case.  Despite what you might have seen on TV (and despite what some dishonest attorneys might promise), they cannot simply go golfing with the judge or take the DA to lunch and "make your case go away".  Most of the time, lawyers cannot bury the DA in paperwork or put a cop on the stand and make him admit that he's lying.  Sometimes we do those things, but those cases are exceptional. 

If you or a loved one has questions about a DUI in Orange County, call our office for a free attorney consultation.  714 449 3335.  Ask for John.

Thanks for reading.  

Fullerton DUI Lawyer

Drunk in Public on Catalina Island

According to the Los Angeles Sheriff's Department, deputies arrested several individuals on suspicion of being drunk in public this month.  In my experience, this is probably the most commonly charged offense on the island, other than minor fishing violations.

To convict you for being drunk in public under PC 647(f), the prosecutor must prove that you were so drunk that you could not reasonably care for your own safety, or that you posed a danger to people around you.  To determine whether or not you were "dangerously" drunk, the court will consider the totality of the circumstances -- the condition in which you were found, how / why you attracted attention from the police, objective and subjective observations of the arresting officers, your own statements, statements from other witnesses, audio / video recordings of the incident, etc.

There is no magic number that clearly distinguishes "fun drunk" from "criminally drunk".  The decision of whether or not to make an arrest is generally left to the officer's discretion.  You have a right to take a breath test if you are arrested for being drunk in public, but police are not required to administer one unless you demand it.  If you decide to demand a breath test, that number will be used against you in court.

If you are arrested for being drunk in public in Avalon, deputies will take you to the tiny jail on Sumner street, attached to the local courthouse.  You will be held for several hours and released in the morning.  Being polite and cooperative during this process will definitely speed up your release.  Deputies will also make a note of your attitude in the reports that they prepare.  If your arrest report shows that you were cooperative, that fact will go a long way when your attorney attempts to negotiate a reduced charge or a dismissal in court.

When you are released from custody, the deputies will give you a "notice to appear" in court at some future date.  Regardless of what the deputies told you, your case cannot simply be resolved through the mail or at the Long Beach courthouse.  All misdemeanors arising on Catalina Island are heard at the Catalina courthouse.

If you retain a local attorney, you do not need to travel back to the island for your court date -- your attorney can go for you.  Your lawyer will gather copies of the police reports and any other evidence (photos, videos, etc.), enter a "not guilty" plea, and schedule a series of future court dates to come back and discuss the case with prosecutors.

If the prosecutor recognizes that the evidence in your case is weak, you have a clean criminal record and you were cooperative during your arrest, they might make an offer that's too good to refuse.  A "good offer" might include a reduced charge or a complete dismissal.  If the evidence is strong, or if you have a history of alcohol-related offenses, or if your police report indicates that you were uncooperative, the DA's offers get less generous.  "Drunk in Public" is a misdemeanor, so penalties may include probation, fines, community service, CalTrans labor, mandatory AA meetings, or even jail time.  

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

Our office has extensive experience defending against all types of cases that arise on Catalina Island, including drunk in public.  We offer competitive rates and affordable payments, and we never charge clients for our travel expenses.

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

Thanks for reading.

Catalina Island Lawyer

Can I Get a DUI on Private Property?

In California, you can be arrested for DUI on private property, off-road, or even on the water.  

Section 23152 of the California Vehicle Code prohibits anybody from operating a vehicle while they are under the influence of drugs or alcohol. The DA doesn't need to prove that you were on a public road. They don't even need to prove that the vehicle was an automobile.  

I've had clients accused of riding dirt bikes, jet skis and golf carts while drunk (not all at the same time). In California, all of those situations can be treated as "DUI". Hiring an experienced DUI defense attorney can be very helpful in these cases, though. Often, the kind of officers who arrest drunken dirt bikers, boaters or golfers are inexperienced in making those types of arrests. They don't have the training or resources to properly prosecute DUI cases. Park rangers and harbor patrol officers might mishandle evidence or fail to file documents in a timely manner.

You can even be cited for riding a bicycle while drunk in California ("Cycling Under the Influence, or "CUI"), but those cases are treated a little differently. CUI is an infraction only and not a misdemeanor, so the court cannot impose jail time or probation. Bicycles obviously aren't "motor vehicles", so the 0.08% BAC limit doesn't apply, and the DMV will not suspend your driver's license or impose mandatory classes. To be guilty of CUI, the officer must prove that you were so impaired by alcohol and /or drugs that you could not operate a bicycle with the skill and care of an ordinary cyclist (whatever that means). If you are cited for CUI, you may demand a breath or blood test, but you are not required to take one.  

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. 

Fullerton DUI Lawyer

Lobster Season = DFG Enforcement Season

California's recreational spiny lobster season officially began on October 1 this year.

Traditionally, the majority of legal lobsters are caught during the first few weeks of the season. The water is still warm enough to free dive for bugs, the days are still long and the weather is still pleasant enough to draw anglers.

This is the time of year when I start getting calls from divers and fishermen who've run afoul of California's complicated fishing laws. If you're going to hit the water in search of those delicious bugs this season, keep a few rules in mind. By learning and practicing these basic commandments, you might save yourself from a costly citation, a day in court, and a criminal record. A violation of any fishing regulation may be treated as a misdemeanor. The maximum penalty for most of these violations includes 6 months in jail, high fines, probation, loss of fishing privileges and and forfeiture of your gear. Prosecutors take these cases seriously. You should, too.

• Carry a valid California sport fishing license with salt water endorsement AND a spiny lobster report card.  These documents must be in your immediate possession while you are fishing or taking lobster.  If you are diving from a boat, you may leave the licenses on the boat.  If you are diving from shore, you must leave the licenses within 500 yard from your point of entry.

• Fill out your lobster report card BEFORE you begin fishing.  If you are approached by wardens from the California Dept of Fish & Wildlife (formerly, Fish & Game), they will inspect your report card.  If the date and location has not already been filled in, you will be cited.

• Use an approved lobster gauge and measure carefully.  A legal lobster must measure at least 3.25" from the eye socket to the rear of the carapace, along a line parallel to the center of the body shell. A proper lobster gauge should be made of a rigid material, like metal or hard plastic, and not a soft tape measure. A soft tape measure will follow the curvature of the lobster's shell and may cause undersized lobsters to falsely appear legal. Don't fudge it. Fish & Wildlife wardens will not be fooled, they will not give you "the benefit of the doubt", they will not issue warnings, and they will not do you any favors. When in doubt, throw it out.

Here's a photo that demonstrates the proper technique for measuring a spiny lobster.  This bug is clearly undersized:

Photo credit: cdfwnews.wordpress.com

• Lobsters may be taken by hand or by hoop net only.  No traps allowed except with a commercial license.  If you snag one while bottom fishing, you must toss it back.

• Lobsters must be whole / "in measurable condition" when they are brought ashore. If you remove the tails at sea, Fish & Wildlife wardens on the docks cannot verify that the bugs are the legal length. You will be cited if you come ashore with a cooler full of lobster tails, or if wardens board your boat at sea and discover immeasurable lobsters.

• Check an up-to-date map to ensure that you're not fishing in a protected area. The ocean off Southern California is home to 50 different "Marine Protected Areas", including "Marine Reserves", "Marine Conservation Areas" and "Special Closures".  Each of these areas is governed by specific rules and regulations regarding what (if anything) may be taken or pursued within its designated boundaries. The areas are not marked by signs, so anglers are responsible for studying their maps.

If you or a loved one is cited for any fishing violation in Southern California, call the office with the experience and knowledge to ensure that you get the best result possible.  Free consultations. (714) 449-3335. 

Thanks for reading.

Catalina Attorney 

Is Hearsay Evidence Admissible in Restraining Order Hearings?

The answer in California is, "sometimes".

To understand how it all works, you have to first understand the legal definition of "hearsay".  Hearsay is any out-of-court statement, when the statement is offered for the truth of the matter asserted (Bill testifies, "Ted told me the red car ran the light", as proof that the red car ran the light).  Hearsay also includes signed affidavits from witnesses who are not present in court to answer questions about their statements.

Hearsay evidence is considered unreliable for obvious reasons.  Generally, it is inadmissible in court unless some exception applies, and there are lots of exceptions.

Civil harassment restraining order cases are one such exception to the general rule that says hearsay is inadmissible.  The law describing civil harassment restraining orders in California specifically says that, at the time of the hearing, "the judge shall consider any testimony which is relevant".  Courts have interpreted this rule as allowing the admission of hearsay evidence in civil harassment restraining order hearings as long as that testimony is relevant (that it generally relates to the facts at issue).

And since the laws regarding workplace violence restraining orders basically mimic the language that governs civil harassment hearings, courts have also determined that hearsay evidence is admissible in workplace violence proceedings.

Domestic violence restraining orders are treated a little differently because they are governed by the Family Code rather than the Code of Civil Procedure.  The language in that code does not include the specific instruction that judges must receive all relevant evidence.  Since no hearsay exception applies in domestic violence restraining order cases, the usual rules of evidence apply and hearsay is excluded.

Even when hearsay is admissible, it is almost always advantageous to bring live witnesses to court rather than signed affidavits.  The judge may have questions and the witness may be needed in case unexpected issues arise.

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

Orange County Restraining Order Lawyer

What's New in California Gun Laws?

AB-2459

This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years.  It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.

The measure is working its way though the Assembly committee process.  It was watered down a little in the Committee on Public Safety last week.  Now it's headed back to the Committee on Privacy & Consumer Protection.

A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled.  It also would have mandated that the store owner maintain all footage on site for a period of 5 years.

As amended, the latest version of the proposed law would only require gun dealers to record transactions.  The video footage must be in color and of sufficient definition to record the facial features of all buyers.  The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored.  The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.

The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself.  The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations.  Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person.  All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print.  The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file.  A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.

Current Status of Peruta v. San Diego

This is the case that turned California's CCW licensing scheme on it's head.  It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.

Here's a little background:  Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license.  A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.

Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense.  His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public.  The Federal District Court in San Diego agreed.

Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.

The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet.  An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.

Until the court provides some guidance, we're left in a sort of legal purgatory.  The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court.  Things are likely to get even muddier before we see any clarity.  Check back often for updates as they become available.

Updated 6/23/16:  The 9th Circuit delivered its ruling last week.  Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.  

AB-1663 & AB-1664

These two proposed laws would effectively ban the "bullet button" in CA.  I've written about them previously, here.

Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.

If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk.  Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.


8,500 CCW Permits in Orange County, 0 Incidents of Misuse

Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.

According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County.  Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").


Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure

Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.

The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.

California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them.  Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.

Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.

And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage.  No other state currently requires background checks to purchase ammo.

The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year.  Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime.  As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will.  News flash: felons are already prohibited from possessing firearms and ammunition in California.  This law will not prevent bad guys from gaining access to guns.  It will, however, make shooting sports more expensive and inconvenient for the rest of us.

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

Orange County Gun Lawyer

Announcing New Collaboration with Thekindland.com

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

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

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

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

Thanks for reading.  

Proposed Bills Would Ban "Bullet Buttons" in California

Under current California law, an "assault weapon" is defined as any semi-automatic, centerfire rifle that includes a detachable magazine and one of several enumerated "scary" features (e.g. a pistol grip, folding stock, etc.).  A magazine is not considered "detachable" under the law if its removal requires the use of a tool.

Enter the "bullet button".  The bullet button is a California oddity.  It is essentially a magazine release button that cannot simply be depressed by the shooter's thumb, the way that magazine release buttons typically work.  Instead, the bullet button features a small hole which requires the shooter to insert some pointy tool (such as the tip of an unused bullet) to release the magazine. Hence the name, "bullet button".  It looks like this:

A pair of pending laws would amend the California Penal Code to ban any magazine or ammunition feeding device that can be removed without disassembling the weapon, including magazines that can be removed with the use of a tool.  The bills are specifically intended to prohibit the bullet button. Current owners of rifles with installed bullet buttons would be required to register their weapons with the state, and they would be prohibited from selling, transferring or giving away their firearms. Gun owners would even be prohibited from passing down their collections to their children when they die.

Proponents of the measures claim that they close a "loophole" that currently allows individuals to circumvent the spirit of the law.  They argue that the ability to quickly reload a rifle poses a danger to public safety.

Opponents argue that the proposed bills are just the latest attempt to curtail the rights of shooters and hunters in California with more unnecessary and unduly burdensome regulations.  I tend to agree (no surprises here).

Governor Brown vetoed a similar law immediately after the mass shooting in Newtown, CT.  In his veto message, he noted that California already has some of the most restrictive gun laws in the nation.  Since Arizona and Nevada have very permissive rules regarding gun sales, imposing more onerous restrictions on law-abiding Californians would likely have little effect on gun violence here. Criminals will continue importing illegal weapons from out-of-state.  He also noted that hundreds of thousands of Californians currently own rifles with detachable magazines, which are commonly used for target shooting and hunting.

The proposed laws would solve a problem that simply does not exist in California.  According to the State Department of Justice, California experienced 1,697 murders in 2014 (the most recent year for which data is available).  Of those 1,697 murders, only 40 were committed by rifle.  That's a whopping 2.3% of all murders in the state.  There is no information available regarding how many of the rifles involved in those 40 killings featured detachable magazines, or to determine if the proposed laws would have prevented a single killing.

In the same year, shotguns killed 43 people.  Blunt objects killed 65.  Knives were involved in 256 murders.  Handguns killed 763.  Of all the weapons that were included in the AG's statistics, the only one that killed fewer people than rifles was rope.  It's fair to say that we don't have a rifle problem in California.

The laws currently pending in the California Assembly, AB-1663 and AB-1664 would impose an undue burden on lawful gun owners, without any corresponding benefits for public safety.  They would expose the state to costly litigation as 2nd Amendment groups sue to block enforcement of the new restrictions.  These proposed bills are obviously an election-year distraction by politicians desperately grasping for headlines.  If you agree, please call your local Assemblyman and let him or her know how you feel.

If you or a loved one is accused of any gun-related crime in Southern California, call our office for a free consultation.  (714) 449-3335.  We understand California's complicated gun laws and we have the experience to fight your case.

Thanks for reading.

Orange County Gun Lawyer

The First Amendment as a Defense to Drug Charges?

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

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

The Religious Freedom Restoration Act

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

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

The Religious Land Use and Incarcerated Persons Act

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

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

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

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

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

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

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

Thanks for reading.

Orange County Drug Lawyer

What Should I Do if I'm Under Investigation by the Police?

If you believe that you are under police investigation, you should immediately do 2 things (and only 2 things): #1) shut up, and #2) call a lawyer.


The Police Say They Want Me to Come Down and Make a Statement.  Should I Talk to Them?

No.  You should never talk to the police without your attorney present.  Remember, the police are not your friends.  They're not interested in helping you out, they're interested in sending you to jail. They will manipulate you, intimidate you, threaten you, and wear you down. If you agree to an interview with police investigators, you will eventually either lie, confess (or you will say something that could be twisted and misconstrued as a partial confession), or else you will paint yourself info a corner, limiting the options that your attorney might have used to defend you.

Remember, if investigators had a solid case against you, they wouldn't need your statement. If the evidence clearly proved that you were guilty, you'd already be in jail. The fact that detectives want your statement should be a hint that the case against you is weak.  Do not help them collect stronger evidence.

Often, detectives are looking for some "missing piece" of the proverbial "puzzle".  They might not need you to admit that you pulled the trigger, for instance.  Maybe they just need to establish that you were driving a blue car last Tuesday.  It's not a crime to drive a blue car on a Tuesday, so you admit that harmless fact. Investigators will use that information to connect the dots and to build a circumstantial case against you.  If you don't know what the missing piece of the puzzle is, then you are wandering into a minefield by speaking to detectives.


What Can a Lawyer Do if I'm Under Investigation?

Experienced, local criminal defense attorneys understand how the criminal justice system works. They know what police investigators are looking for and they understand the kinds of tricks that detectives use to elicit incriminating statements from suspects.

Your lawyer can notify the police that he or she represents you, and that all further communications should be conducted through your legal counsel.  Police may not directly contact you or seek any statement from you once they know that you're represented by an attorney. Often, this is enough to drive the investigation into a dead end.

In some situations, your attorney can conduct his or her own investigation to gather evidence that might be favorable to your defense.  If your lawyer has solid, exculpatory evidence, he or she may be able to prevent the filing of criminal charges before your case snowballs into a bigger headache.

While the police investigation is ongoing, your lawyer can ensure that your rights are preserved. He or she can share favorable evidence with investigators, and provide peace of mind by helping you understand the process and your options.


But Won't it Look Suspicious if I Hire a Lawyer?

I always say that I'm not afraid of my clients "looking suspicious".  It's not a crime to "look suspicious".  I probably spend most of my day "looking suspicious".

I am afraid, though, of my clients talking themselves into trouble.  When you sit down with police and answer their questions, you are almost guaranteed to talk yourself into trouble.


What Can't a Lawyer Do?

If you're suspected of a crime, no attorney can prevent the police from investigating you. Police investigate reports of crimes. That's their job. It's my job to make their job more difficult. I can inform them that you will not be answering any questions, but I cannot prevent them from approaching your neighbor and asking what he heard or saw.

We can't stop witnesses from reporting suspected crimes or from making statements about you to the police. It is a crime to dissuade a witness from reporting a crime or from testifying in court.  If somebody is saying untrue things about you, we can perform an independent investigation to prove that the witness is lying or mistaken. If witnesses are saying things that they know are untrue, they may be guilty of perjury or liable for defamation in civil court.

If the police have a search warrant, we cannot prevent them from executing it.  In court, we can raise legal challenges to the warrant (why it was issued, how it was executed, what was seized, etc.), but no attorney can simply stop the police from searching your property if they have a warrant to do so.

If you or a loved one believes that you're under investigation for a suspected crime, call us for a free consultation.  (714) 505-2468.  Ask for John.  We have offices in Fullerton, Santa Ana, Riverside and San Bernardino.  Thanks for reading.

Orange County Lawyer

How to Restore Gun Rights in California

There's been a lot of talk in the news media lately about keeping guns out of the hands of felons. Gun control is one of the most divisive issues today, and California has decided to take an aggressive lead in the movement to further restrict firearms.

If you are ineligible to purchase or possess firearms due to a criminal conviction in California, there are a couple ways by which you might be eligible to restore your Second Amendment rights.

California law offers several different options for cleaning up your old criminal record. Some (not all) of those options may have the effect of restoring gun rights. I'll try to explain the differences between these legal procedures.

Post Conviction Relief in California

After a defendant is convicted of a crime in California, state laws offer him a few different ways to clean up his criminal record. These procedures are collectively called "post-conviction relief".

Forms of post-conviction relief in California include:

-1203.4 Dismissal (commonly called an "expungement"):  A successful 1203.4 petition may change a defendant's criminal record so that the case shows up as a "dismissal" rather than a "conviction" when a prospective employer runs a background check. It's a great option if you're trying to get back to work after being convicted of a crime, but an expungement does nothing for gun rights. If you read the instructions on the paperwork carefully, they clearly inform the petitioner that a 1203.4 dismissal will not relieve him of his duty to register as a sex offender and will not restore his rights to purchase or possess firearms.

-Prop. 47:  In 2014, California voters approved Prop. 47. That ballot initiative reduced many crimes (such as drug possession) from felonies or "wobblers", to straight misdemeanors.  That law became retroactive, so people who had been convicted of felonies many years ago were suddenly eligible to apply to have their old cases reduced, even if they performed poorly on probation and had subsequent arrests. Unfortunately, a retroactive reduction under Prop. 47 will not restore gun rights, either.

-PC 17(b):  Section 17(b) of the California Penal Code allows judges to reduce some felonies to misdemeanors "in the interests of justice". Not all felony convictions are eligible for reduction under 17(b). Only "wobblers" potentially qualify. Wobblers are crimes that can charged as either felonies or misdemeanors, at the discretion of the DA. Common wobblers include domestic violence with injury, vehicular manslaughter and making criminal threats.

A reduction under 17(b) will restore firearms rights, assuming the defendant has no other disqualifying factors. Even if a felony conviction for domestic violence is reduced to a misdemeanor under 17(b), though, the applicant may still be ineligible to possess firearms. If the defendant and the victim were married at the time of the offense, federal law prohibits the defendant from purchasing or possessing firearms for life. If they were NOT married and the crime was treated as a misdemeanor, federal law does not apply. California law, however, still prohibits anyone with a misdemeanor conviction for domestic violence from possessing firearms for a period of 10 years following the conviction.

A judge may grant a 17(b) petition at any time -- before trial, after trial, while the defendant is serving a sentence, or after the defendant has completed his sentence.

In order to receive a reduction under 17(b), the applicant must demonstrate "good cause", and must demonstrate that the requested relief "serves the interests of justice". There is no magic formula for satisfying these requirements. Judges are reluctant to grant these requests, so the petitioner must be prepared with some pretty compelling arguments. In almost every post-conviction 17(b) hearing I've ever attended, the judge begins the proceedings with some version of this speech:

Back when this case was filed, the DA had the choice of treating the matter as either a felony or a misdemeanor.  They made the decision to file a felony charge, based on the nature of the offense and the defendant's criminal history.  The defendant had a fair opportunity to negotiate a settlement and he chose to accept a plea deal which included a felony conviction.  He did not have to accept that deal, but he did so because it was in his best interests at the time.  Now he wants to back out of that deal.  Explain to me why I should allow him to renege on his end of the bargain.

Judges like to hear these types of arguments (if they're true and relevant):

-Due to some change in circumstances, a plea deal that seemed fair at the time is no longer fair. "Change in circumstances" is the key here. The judge doesn't want to hear that you received a bad deal at the time of sentencing; he wants to hear that you received a fair deal at the time of sentencing, but things are so different today that the offer you accepted no longer serves the interests of justice.

-The defendant has really turned his life around in a commendable way. He has remained law-abiding for some length of time and he has made serious contributions to society in the form of community service, etc. He was in a dark place years ago, but he has now completed counseling, earned a diploma, gotten married and had kids, and addressed the issues that once caused him to commit crimes. It helps if the petitioner can explain how this felony conviction is preventing him from doing more good for his community (e.g., if the case were reduced, he would have more opportunities to counsel at-risk kids, go back to school, join the military, become a licensed therapist, etc.).

-The DA agreed in plea negotiations that the defendant would be eligible for 17(b) relief after certain conditions were met, and those conditions have been met. Conditions might include paying all victim restitution, completing some form of counseling, remaining law-abiding for a period, etc.

Judges do not want to hear a 17(b) petitioner argue that he is factually innocent of the charges. If a petitioner maintains that did not commit the crime(s) for which he was convicted, he should have fought the case when he had the opportunity to do so. If he was convicted by a jury, he should have followed the proper channels for appealing his conviction. A 17(b) hearing is not the time to argue guilt or innocence -- those issues have been determined a long time ago. The 17(b) hearing is the petitioner's chance to convince a judge that his old felony conviction is no longer fair and appropriate.

-Gubernatorial Pardon

The last option for restoring gun rights in California is to apply for a pardon from the Governor. The Governor of California has the authority to pardon individuals for certain felony convictions that occurred within the state. The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.

According to the Governor's office:

A California Governor's pardon is an honor traditionally granted only to individuals who have
demonstrated exemplary behavior following conviction for a felony. A pardon will not be
granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction. The Governor has complete discretion in deciding whether to grant a pardon. A pardon is a privilege—not a right—and not granted to every person who applies.

A gubernatorial pardon will restore gun rights in most cases, unless the applicant was convicted of a crime involving dangerous weapons.

Consulting with an experienced, local attorney will significantly improve your chances of success if you're considering any of the options described here. If you or a loved one has questions about cleaning up a criminal record or restoring gun rights in California, call us for a free consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Gun Lawyer

New California Gun Laws Take Effect in 2016

Cool picture stolen from activistpost.com

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

Gun Violence Restraining Orders

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

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

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

New Government Regulations for BB Guns and Other Toy Weapons

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

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

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

Promotional photo from budsgunshop.com

Concealed Weapons on Campus

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

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

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

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

Thanks for reading.

Santa Ana Gun Lawyer

Clean Up Your Criminal Record

Updated for 2019

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

Dismiss Old Convictions

California law provides a few procedures to have old cases dismissed after a period of time.  Once your case is dismissed, you can honestly say that you have no criminal convictions in your background.

An expungement does not erase or seal your criminal record, it simply changes the record so that the case shows up as a "dismissal" rather than a "conviction" for most purposes.  Employers may not legally discriminate against job applicants whose cases have been dismissed (in most cases).

There are lots of criteria that you must meet before the court will grant an expungement.  To start, you cannot have any other open cases and you cannot be currently on probation.

• If you were granted probation and you successfully completed the entire term, you are immediately eligible to apply for a dismissal.  
• If you completed probation but you also had some "hiccups" -- maybe you missed some deadlines and you had to go back to court for reinstatement -- then the judge has discretion to decide whether or not an expungement "serves the interests of justice".
• If you served a "county prison" sentence with mandatory supervision, you must wait one year from the date of your release.  If you served a felony county sentence without  mandatory supervision, then you must wait 2 years. 
• Even if you were sentenced to state prison, you may now be eligible for an expungement if you would have received county time under today's laws.  

Since the passage of Prop. 64, many old marijuana convictions are also eligible for dismissal now.  If you were previously convicted for some marijuana-related offense that is now legal (cultivation or possession for personal use), call us to discuss your options.

Expungements under PC 1203.4 do not restore gun rights.  

Terminate Probation Early

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

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

Clear Old Warrants

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

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

In most misdemeanor cases, a private attorney can appear in court without you being personally present.  If you're outside of the state, we may be able to help recall a California arrest warrant and fight your criminal case without turning yourself in.  

Reduce a Felony to a Misdemeanor

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

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

And since Prop. 64 reduced some marijuana-related felonies to misdemeanors, applicants may be eligible to have old marijuana felonies (cultivation, possession for sale, transportation, etc.) reclassified.  Reductions under Prop. 64 may also restore gun rights. 

Seal Arrest Records

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

Victims of Human Trafficking 

If you have been convicted of prostitution under PC 647(b) and you can prove that you were the victim of human trafficking at the time that you committed the offense, you may also be eligible to have your conviction dismissed.  The judge can make a factual finding on the record that you were a victim of human trafficking and the court will notify the Department of Justice.  

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

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

Thanks for reading.

Orange County Expungement 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

Failing to Yield, Evading Police & Reckless Driving in California

California law requires drivers to pull over to the side of the road when ordered to do so by a police officer.  Failure to comply may result in several serious penalties, depending on the circumstances.  This post will discuss some of the the legal differences between failing to stop for police, fleeing from police, and reckless driving.  Those things might sound similar, but there are big distinctions in the law and it's important to understand them.

VC 2800 says that drivers in California must obey the lawful orders of police officers.  Failure to obey a lawful order is a misdemeanor, punishable by a maximum of 180 days in jail and fine of $1,000.00.  If you see red and blue lights flashing in your rear view mirror but you simply maintain your speed and ignore the cop, then you will be cited for a misdemeanor.  That part is easy.

If you attempt to flee, though, the penalty is doubled.  "Willfully fleeing or attempting to elude with intent to evade" a police officer is also a misdemeanor, but the maximum penalty is one year in jail.  This applies even if the cop is on a bicycle.  To be guilty of this violation, the DA must prove your intent -- that you "intended" to evade the police.  Trying to prove a defendant's mental state is not always as easy as it sounds.

If you drive recklessly while attempting to evade police, it get's even better.  Fleeing with "willful or wanton disregard for the safety of persons or property" is a "wobbler", which may be treated as a felony with a maximum sentence of 3 years in state prison.  If the offense is charged as a misdemeanor, it carries a mandatory minimum sentence of 180 days in jail.  If property damage occurs while you are fleeing from police, or if you commit three or more traffic violations during the chase, you will be charged under this section and not the more lenient code section described  in the previous paragraph.  

If you drive on the wrong side of the road while fleeing from police, tack on an additional 6 months - 1 year in custody.

If someone is injured while you are fleeing from police, the maximum penalty jumps to 7 years in state prison.  If someone is killed, make it 10 years.  You can probably also expect to be charged with vehicular manslaughter, or even murder.

There are many potential defenses to the charges described here.  As mentioned, it may be difficult for the prosecutor to prove the defendant's specific intent.  This is especially true when a defendant has engaged in a course of irrational conduct that culminates in a dangerous chase.

If you or a loved one is accused of failing to yield, fleeing from police or driving recklessly while attempting to evade police, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

What Counts as "Robbery" in California?

In honor of my 211th Facebook "like", I wanted to devote this post to PC 211. In California, that code section defines robbery.

Next time you're watching any movie that includes a heist or a bank robbery, pay attention to the background chatter on the police radios. No matter where the movie takes place, the dispatchers always say, "All units: 211 in progress at (fill in the blank)...". As I said, 211 is the penal code section that defines robbery in California. Other states have their own criminal codes with their own numerical designations for specific crimes. As far as I'm aware, California is the only state that uses "211" to mean "robbery", but I hear it all the time in movies that take place in other states. Whenever you hear that from now on, you can probably guess that the screenwriter is from L.A.

In California, robbery is the crime of taking property from a person by using force or fear. It should not be confused with burglary. Burglary is the crime of entering property with the intent to commit theft. If someone enters your home, points a gun in your face, and forces you to open the safe, then you have been robbed. If someone enters your house while nobody is home and sneaks off with your T.V., you have not been robbed; you've been burglarized.

To be convicted, the DA must prove that you used "force" or "fear" to commit the crime. "Fear" may include fear of immediate injury to the victim, or it may include fear of harm to some member of the victim's family or to someone else who is present at the time of the robbery. "Fear" can even include fear of harm to the property itself.

Robbery can be accomplished with or without a weapon. The DA does not need to prove that the defendant was armed during the commission of the crime. Robbery can be committed using bare hands, threats of violence, or simulated weapons (e.g. toy guns, BB guns, etc.). If the robber uses an actual weapon, the DA will charge "enhancements" that may increase his total prison time or make him ineligible for probation.

Robbery in California can be classified into 2 degrees. First degree robbery includes robbing any driver or conductor of a bus, train, trolley, monorail, street car, etc., or any robbery that occurs inside an occupied house or at an ATM. All other robberies are considered "second degree".

First degree robbery is punishable by a maximum of 9 years in state prison, depending on the circumstances. Remember, the court can also impose extra prison time if weapons were involved. Second degree robbery can be punished by up to 5 years in prison.

We see a lot of cases where minor shoplifting incidents quickly escalate into something that the DA considers to be "robbery". A person walks into a liquor store, grabs a beer, and heads for the exit. When a clerk tries to block the door, the person pushes the clerk out of the way and makes his escape. The act of pushing a shopkeeper can satisfy the "force" element of robbery and elevate this petty misdemeanor into a serious, violent felony. This is called an "Estes robbery", and the DA will treat it the same as any other second-degree robbery.

Robbery is considered a "strike" in California. If you are convicted and sentenced to prison, you will earn less "good conduct" credit and you will likely serve a larger portion of your sentence before you become eligible for early release. With a strike on your record, any prison sentence that you receive in the future will automatically be doubled. A third strike will send you to prison for 25 to life.

As a serious crime, robbery charges deserve to be taken seriously. If you or a loved one is accused of robbery in California, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Orange County Robbery Lawyer

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.

How to Win a Hit & Run Case in California (VC 20002)

If you leave the scene of a collision in California without exchanging identifying information, you will be charged with the crime of "hit & run" under section 20002 of the California Vehicle Code. If only property damage is involved, then the case will likely be treated as a misdemeanor. If someone was injured or killed, you can be charged with a felony.

Hit & run cases are notoriously difficult for prosecutors to prove. It may be easy to establish that your car was involved in the collision, but the DA often has a very hard time proving that you were driving and that you knew (or should have known) that you caused property damage. If you were not driving, you have no legal obligation to "snitch" on the actual driver.

Even if the facts of your case are well-established and easily proven, you might still have an opportunity to have the charges thrown out. California law allows judges to dismiss some misdemeanor charges pursuant to a "civil compromise agreement", or "civ comp" for short. Luckily, "hit & run" is one charge that may qualify for a civ comp dismissal.

In a civ comp, the victim must appear before a judge and acknowledge that he has been compensated for whatever losses he experienced due to your crime. Usually, this means that you write a check to the victim. Often, though, the victim may simply acknowledge that he received a check from your insurance carrier.

If you are accused of hit & run, your attorney should speak with the victim and negotiate a small but reasonable sum to cover the victim's damages. I would not advise anyone to reach out to a victim or to conduct the negotiations himself for several reasons. First, you could be accused of witness intimidation. If the victim does not fully understand the law, or if you make the victim feel uncomfortable, he may complain that you attempted to influence his testimony. That can lead to more serious charges. Additionally, you could accidentally talk yourself into bigger trouble by confessing to elements of the crime that were not already well-established. By allowing your lawyer to do the talking, you can avoid these hazards.

The judge has discretion to either approve or deny a proposed civil compromise. If the court approves the agreement, then the criminal charge is dismissed against the defendant.

Judges may deny proposed civ comp agreements when they feel that a dismissal is not in the interests of justice, or when the particular charge is ineligible for such relief. Charges that may NOT be civilly compromised include felonies, crimes against police, crimes committed "riotously", any crime committed with the intent to commit a felony, domestic violence charges, and crimes against elders or children.

"Hit & run" is probably the charge that is civilly compromised the most often, but other charges may also qualify. Vandalism, assault, battery, trespassing and theft may be resolved by civ comp, as well.

Victims often agree to civilly compromise cases because accepting a civ comp may be the quickest, easiest way to recoup their losses. By accepting your proposed deal, the victim can avoid the headaches and uncertainty of going to trial, testifying as a witness, and then trying to pursue / enforce an eventual restitution award. A good defense attorney should be able to clearly explain this to process to the victim so that he or she understands and agrees to cooperate.

If you or a loved one is accused of hit & run (VC 20002) in California, call us for a free attorney consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Orange County Hit & Run Lawyer

Contempt of Court / Violating a Restraining Order

I've previously written extensively on this blog about restraining orders in California -- how to get them, how to fight them, how to prepare for your day in court, and how to effectively present your case to the judge. Those posts are available here, here, and here.

Today, I want to discuss the laws that apply when a person is accused of violating an existing restraining order. In California, those laws are codified in section 166(a)(4) of the Penal Code, commonly referred to "Contempt of Court", and in PC 273.6. Violating an existing restraining order is a misdemeanor. Depending on the circumstances and your criminal record, it may be punishable by up to 1 year in jail and a $5,000 fine.

In order to be found guilty of contempt under PC 166(a)(4), the prosecutor must prove 4 things beyond a reasonable doubt:

1)  That a court had lawfully ordered you to do a specific thing (or to refrain from doing a specific thing),
2)  That you knew about the order and its contents,
3)  That you had the ability to follow the order, and
4)  That you violated the order.

You can be charged with violating a restraining order even if you're not the person named in the restraining order. A non-party (someone who was not involved in either side of the restraining order petition) is guilty of contempt if he knows about the order and he helps the restrained person violate it. For example, if your friend has a restraining order against him and he asks you to pass a message to the protected party, you can be charged with contempt if you do so.

There are several possible defenses if you're accused of violating a restraining order:

You didn't do it

As mentioned above, the prosecutor bears the burden of proving you guilty beyond a reasonable doubt. If they cannot prove that you committed the act in question, then you are not guilty. Just because a message was sent from your phone or your computer, the DA might have difficulty proving that you actually sent the message.

You might also admit that you engaged in some particular conduct, but argue that this conduct did not technically violate the restraining order. For example: You were ordered to stay away from your ex-girlfriend's place of work. You were seen in the area, but she doesn't work there any more.You might have a solid argument here that your conduct did not actually violate the judge's order.

The order itself was unlawful or unconstitutional 

You cannot be convicted of violating an unlawful restraining order. This is a difficult argument to make, though. If you disagree with a restraining order or you feel like you did not receive an adequate opportunity to present your case when the order was initially granted, you must appeal the order within a very short time period. If you fail to properly file the appeal within that time period, you will be barred from doing so in the future.

You did not know about the restraining order or its contents

The prosecutor only needs to prove that you had an opportunity to learn about the contents of the restraining order. They do not need to prove that you actually read it, or even that you were properly served with a copy of the order after it was granted.

Usually, the DA will satisfy this element by simply proving that you were served with the order. If you were served, then you are presumed to have knowledge of the order and its contents. Willfully refusing to read the order is no defense.

Even if you were never served, the DA may be still able to prove that you had knowledge of the order and intentionally avoided service. Again, this is no defense.

You were unable to comply with the order

To be convicted of contempt, the DA must prove that you acted "willfully" or "intentionally", depending on the circumstances. If the court ordered you to do something specific and you are physically unable to do that thing, then you have not violated the court's order. For example:  The judge granted a restraining order against you and he ordered you to surrender your firearms at the local police station. You have been in jail or in the hospital ever since the incident and you have not yet had an opportunity to comply with the order. In this case, you are not guilty of contempt because you have not "willfully" or "intentionally" violated the judge's instructions.

If you or a loved one is accused of violating a restraining order in California, call our office for a free consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Attorney Available for Special Appearances on Catalina Island

Our firm has extensive experience litigating all types of criminal matters on Catalina Island.   We appear in the Avalon courthouse regularly and we know the "ins and outs" of their unique procedures.  

The Catalina courthouse is only open on alternating Fridays, weather permitting.  It hears infractions and misdemeanors only.  They conduct arraignments, pretrial conferences, and various post-conviction proceedings.  All felonies and jury trials are conducted at Long Beach.  

As a local attorney, I am available to make special appearances on the island on behalf of other attorneys.  My appearance fee is reasonable and competitive (cheaper than traveling all the way out there yourself, especially if you include the value of your time).  As your special appearance attorney, I will appear in court and diligently adhere to whatever instructions you provide.  I will promptly notify you of the outcome of the appearance.  If I receive any documentation from the court (complaint, discovery, sentencing paperwork, etc.) I will forward it to you by the end of the business day.  

I have been licensed to practice law in California since 2009.  My practice focuses exclusively on criminal defense and related issues (restraining orders, restitution, probation violations, medical marijuana, etc.).  References available upon request. 

Let me save you the time, expense and stress of traveling to Catalina Island for a routine misdemeanor appearance.  When I get a great result for your client, you can take all the credit.  

Please feel free to call my office any time.  (714) 505-2468.  Ask for John.  Thanks for reading.