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
Wednesday, October 14, 2015
Monday, October 12, 2015
Announcing Our New Fullerton Location
I'm proud to announce the opening of our firm's newest branch office on the 9th floor of the Fullerton Towers, 1440 N. Harbor Blvd. Located just a block from the Fullerton Courthouse (North Orange County Justice Center), this space will allow us to better serve our clients in Fullerton, Buena Park, Brea and Anaheim.
Our main office will remain in Santa Ana. I also plan to keep branches in Riverside and San Bernardino for the convenience of my clients in the Inland Empire.
As a local boy, I'm excited about this new opportunity to serve clients in my home town. There's no place I'd rather be.
If you or a loved one is accused of a crime in Fullerton, call for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Fullerton Criminal Defense Lawyer
Friday, October 9, 2015
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
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
Thursday, October 8, 2015
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.
Thursday, September 24, 2015
Buccaneer Days Returns to Catalina Island -- Retain a Good Lawyer Now
It's that time of year again! Buccaneer Weekend will descend on Catalina Island October 1-4, 2015. The annual festival marks the unofficial end of tourist season and the official beginning of spiny lobster season.
The holiday is traditionally celebrated with lots of alcohol and very few clothes. The influx of weekend revelers brings a boon to local businesses, including criminal defense attorneys (such as myself).
This year's party will include 4 days of live bands, DJs, dancing, an adult costume contest, an adult treasure hunt and boatloads of beer. With so many great ways to get yourself into trouble, you'd be smart to save this number now: (714) 505-2468.
If you are cited for any misdemeanor on or near Catalina Island, you will be given a court date and ordered to appear back on the island in a couple months for your arraignment. You cannot simply appear in Long Beach at your convenience, despite whatever bad legal advice you might hear.
In most cases, I can make your court appearances for you. I can save you the time, hassle and expense of traveling all the way back to Catalina for a series of hearings. As your attorney, I will appear in court on your behalf for your arraignment (your first court appearance). At the arraignment, the court will provide me with a copy of the police report and other discovery that the DA plans to use against you. I will enter a plea of "not guilty" and I will schedule another court appearance 4-6 weeks later. This gives me plenty of time to review the evidence, conduct any investigation that needs to be done, discuss the facts of the case with you, and decide on a plan of action.
When I return to court for the next scheduled appearance, the DA and I will begin the process of trying to reach a mutually-agreeable deal to resolve your matter. Depending on the unique facts of your case, a "mutually-agreeable deal" can mean a lot of things. I will make as many appearances as it takes to ensure that your case is handled properly. Our priority is always to help you reach the most favorable outcome possible -- and to save you some time and money in the process.
The Catalina courthouse is completely unlike most local courts. It consists of a single room with one judge and a small staff. It is highly advantageous to use a lawyer who understands the strange system that they have in place and who knows "how things are done" on the island. We have an excellent relationship with the prosecutors who are responsible for handling all criminal matters on the island. This helps us make great deals on behalf of our clients.
If you or a loved one is cited at Buccaneer Days on Catalina Island this year, call us for a free consultation. The number is above, but here it is one more time: (714) 505-2468. Ask for John.
Thanks for reading.
Catalina Island Lawyer
The holiday is traditionally celebrated with lots of alcohol and very few clothes. The influx of weekend revelers brings a boon to local businesses, including criminal defense attorneys (such as myself).
This year's party will include 4 days of live bands, DJs, dancing, an adult costume contest, an adult treasure hunt and boatloads of beer. With so many great ways to get yourself into trouble, you'd be smart to save this number now: (714) 505-2468.
If you are cited for any misdemeanor on or near Catalina Island, you will be given a court date and ordered to appear back on the island in a couple months for your arraignment. You cannot simply appear in Long Beach at your convenience, despite whatever bad legal advice you might hear.
In most cases, I can make your court appearances for you. I can save you the time, hassle and expense of traveling all the way back to Catalina for a series of hearings. As your attorney, I will appear in court on your behalf for your arraignment (your first court appearance). At the arraignment, the court will provide me with a copy of the police report and other discovery that the DA plans to use against you. I will enter a plea of "not guilty" and I will schedule another court appearance 4-6 weeks later. This gives me plenty of time to review the evidence, conduct any investigation that needs to be done, discuss the facts of the case with you, and decide on a plan of action.
When I return to court for the next scheduled appearance, the DA and I will begin the process of trying to reach a mutually-agreeable deal to resolve your matter. Depending on the unique facts of your case, a "mutually-agreeable deal" can mean a lot of things. I will make as many appearances as it takes to ensure that your case is handled properly. Our priority is always to help you reach the most favorable outcome possible -- and to save you some time and money in the process.
The Catalina courthouse is completely unlike most local courts. It consists of a single room with one judge and a small staff. It is highly advantageous to use a lawyer who understands the strange system that they have in place and who knows "how things are done" on the island. We have an excellent relationship with the prosecutors who are responsible for handling all criminal matters on the island. This helps us make great deals on behalf of our clients.
If you or a loved one is cited at Buccaneer Days on Catalina Island this year, call us for a free consultation. The number is above, but here it is one more time: (714) 505-2468. Ask for John.
Thanks for reading.
Catalina Island Lawyer
Wednesday, September 16, 2015
Everything You Know About Medical Marijuana in California is Wrong
The California Legislature has approved a trio of new laws that will completely change the way we regulate medical marijuana in the Golden State. Forget everything that you thought you knew.
The new package of bills will collectively be called, "The Medical Marijuana Regulation and Safety Act". It will create a comprehensive new system to govern virtually every aspect of California's medical marijuana industry. Growers, transporters, testers / inspectors, distributors and retail sales shops will all be required to hold specific state-issued licenses. It also establishes a Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to enforce the new legislation.
If signed into law by Gov. Brown, the MMRSA will take effect on January 1, 2016. Experts predict that it could take another year for the state to create the necessary infrastructure to actually begin implementing the law. In the meantime, dispensaries that are currently operating in compliance with state and local laws may continue to do so until their new applications have been approved or denied.
The MMRSA will create a system by which state regulators will be able to track all medical marijuana, from cultivation to consumption. It will require growers to send their finished products to licensed distributors. The distributors will be responsible for having the cannabis tested and inspected at licensed facilities before sending it on to retailers.
Growers will be limited to one acre for outdoor cultivation or 22,000 square feet for indoor grow operations.
Under the old system, "vertical integration" had been mandatory -- a dispensary must cultivate, transport and distribute its own cannabis. The new scheme actually limits the ability of license-holders to do so by placing restrictions on the number and type of permits that a single entity may hold.
The MMRSA will allow for-profit sales of marijuana for the first time. It also contains a provision for licensing manufacturers who produce concentrates using volatile solvents, which is illegal under existing law.
Currently, collectives that operate in accordance with state law are shielded from prosecution under HS 11362.775 (also known as "SB-420", or "The Medical Marijuana Program Act"). The new scheme includes a sunset clause for these provisions. HS 11362.775 will expire one year after the first new licenses are issued.
The MMRSA includes regulations for doctors who issue recommendations for medical marijuana. The medical board will now assign special priority to investigating physicians who repeatedly and excessively recommend marijuana to patients without first conducting an examination in good faith. Doctors will be prohibited from accepting or offering any sort of remuneration to or from a license-holder in which the doctor or a family member has a financial interest.
California is in dire need of a coherent, comprehensive regulatory scheme that protects patients and cannabis providers without imposing undue red tape and expenses. The current state of affairs is not sustainable. The multi-million-dollar market for medical marijuana in California no longer fits within the regulatory framework that the legislature envisioned when it passed SB-420. Current laws are unclear and subject to conflicting interpretations by different judges in different courts. Federal prosecutors have said that they will not interfere with local operations that are "in clear and unambiguous" compliance with their state laws. Unfortunately, nobody is in "clear and unambigious" compliance with medical marijuana laws in California because those laws are ambiguous and unclear in their meaning.
It remains to be seen whether or not this proposed system will help patients obtain their medical marijuana safely and affordably. If the system is implemented in an efficient and effective manner, it could provide greater protection and reduce uncertainty for everyone involved in California's growing medical marijuana industry. If the system is poorly managed or laden with excessive costs and bureaucratic ineptitude, it may drive consumers back to the black market, where no standards exist to ensure patient safety.
Stay tuned to see what happens when Californians vote to legalize recreational marijuana use next year...
Special thanks to OC NORML for contributing to my research.
Santa Ana Cannabis Lawyer
The new package of bills will collectively be called, "The Medical Marijuana Regulation and Safety Act". It will create a comprehensive new system to govern virtually every aspect of California's medical marijuana industry. Growers, transporters, testers / inspectors, distributors and retail sales shops will all be required to hold specific state-issued licenses. It also establishes a Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to enforce the new legislation.
If signed into law by Gov. Brown, the MMRSA will take effect on January 1, 2016. Experts predict that it could take another year for the state to create the necessary infrastructure to actually begin implementing the law. In the meantime, dispensaries that are currently operating in compliance with state and local laws may continue to do so until their new applications have been approved or denied.
The MMRSA will create a system by which state regulators will be able to track all medical marijuana, from cultivation to consumption. It will require growers to send their finished products to licensed distributors. The distributors will be responsible for having the cannabis tested and inspected at licensed facilities before sending it on to retailers.
Growers will be limited to one acre for outdoor cultivation or 22,000 square feet for indoor grow operations.
Under the old system, "vertical integration" had been mandatory -- a dispensary must cultivate, transport and distribute its own cannabis. The new scheme actually limits the ability of license-holders to do so by placing restrictions on the number and type of permits that a single entity may hold.
The MMRSA will allow for-profit sales of marijuana for the first time. It also contains a provision for licensing manufacturers who produce concentrates using volatile solvents, which is illegal under existing law.
Currently, collectives that operate in accordance with state law are shielded from prosecution under HS 11362.775 (also known as "SB-420", or "The Medical Marijuana Program Act"). The new scheme includes a sunset clause for these provisions. HS 11362.775 will expire one year after the first new licenses are issued.
The MMRSA includes regulations for doctors who issue recommendations for medical marijuana. The medical board will now assign special priority to investigating physicians who repeatedly and excessively recommend marijuana to patients without first conducting an examination in good faith. Doctors will be prohibited from accepting or offering any sort of remuneration to or from a license-holder in which the doctor or a family member has a financial interest.
California is in dire need of a coherent, comprehensive regulatory scheme that protects patients and cannabis providers without imposing undue red tape and expenses. The current state of affairs is not sustainable. The multi-million-dollar market for medical marijuana in California no longer fits within the regulatory framework that the legislature envisioned when it passed SB-420. Current laws are unclear and subject to conflicting interpretations by different judges in different courts. Federal prosecutors have said that they will not interfere with local operations that are "in clear and unambiguous" compliance with their state laws. Unfortunately, nobody is in "clear and unambigious" compliance with medical marijuana laws in California because those laws are ambiguous and unclear in their meaning.
It remains to be seen whether or not this proposed system will help patients obtain their medical marijuana safely and affordably. If the system is implemented in an efficient and effective manner, it could provide greater protection and reduce uncertainty for everyone involved in California's growing medical marijuana industry. If the system is poorly managed or laden with excessive costs and bureaucratic ineptitude, it may drive consumers back to the black market, where no standards exist to ensure patient safety.
Stay tuned to see what happens when Californians vote to legalize recreational marijuana use next year...
Special thanks to OC NORML for contributing to my research.
Santa Ana Cannabis Lawyer
Thursday, September 10, 2015
HS 11362.79: Smoking Medical Marijuana in a Vehicle
As I've previously written on this blog, California laws provide some limited protections for patients who use medical marijuana with a doctor's approval or recommendation. Generally, patients and their caregivers may cultivate enough marijuana for their own personal use. They may possess, transport and consume marijuana, even in some public places. Under some circumstances, they may even sell it to other qualified patients.
Keep in mind, however, that you will be arrested if you are caught smoking medical marijuana in a vehicle that is being operated. Similarly, you may not operate a vehicle while you are impaired by marijuana, even if you have a doctor's recommendation to possess and use the drug for medical purposes.
More information on marijuana DUI cases available here.
Sections 11362 et seq. of the California Health & Safety Code outline the various protections that are afforded to qualified medical marijuana patients. It also defines the limits of those protections. Some of the nuances pertain to operating motor vehicles.
Section 11362.79 specifically says that, "Nothing in this article shall authorize a qualified patient...to engage in the smoking of medical marijuana...while in a motor vehicle that is being operated."
The code section includes awkward wording that essentially means, "these laws should not be interpreted as guaranteeing the right to consume medical marijuana in a vehicle." That part is clear. Here's the rub: there is no law that specifically prohibits smoking marijuana in a vehicle.
If you are caught smoking medical marijuana in a vehicle, the DA will charge you with at least 2 crimes: 1) VC 23152(f) Driving Under the Influence of Marijuana, and 2) HS 11362.79(d) Smoking medical marijuana in a vehicle. I do not believe that this second charge is proper. Here's my reasoning:
HS 11362.79(d) says that the law does not specifically create the right to smoke medical marijuana in a vehicle, but it also does not specifically prohibit that act. That section does not indicate the penalty for its violation. It doesn't even indicate whether the act of smoking in a vehicle is an infraction or a misdemeanor.
Since this code section includes the phrase "medical marijuana", it only applies to qualified patients and not to people who smoke non-medical marijuana in a moving vehicle. That's obviously absurd because the legislature did not intent to treat medical marijuana patients more harshly than non-patients who smoke marijuana in the car.
For these reasons, I do not believe that it's appropriate to treat violations of HS 11362.79(d) as misdemeanors. I understand that the District Attorney's office disagrees with me. They will continue to file misdemeanor charges in these types of cases until we get some better guidance from appellate courts.
In the meantime, our office is prepared to fight criminal charges involving marijuana in vehicles. We have extensive experience with marijuana DUI cases (sometimes called "DUID", or "VC 23152(f)"). We're also experts in the areas of search & seizure law, medical defenses, and police misconduct.
If you or a loved one is accused of a crime involving marijuana in a vehicle, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Orange County Marijuana Lawyer
Keep in mind, however, that you will be arrested if you are caught smoking medical marijuana in a vehicle that is being operated. Similarly, you may not operate a vehicle while you are impaired by marijuana, even if you have a doctor's recommendation to possess and use the drug for medical purposes.
More information on marijuana DUI cases available here.
Sections 11362 et seq. of the California Health & Safety Code outline the various protections that are afforded to qualified medical marijuana patients. It also defines the limits of those protections. Some of the nuances pertain to operating motor vehicles.
Section 11362.79 specifically says that, "Nothing in this article shall authorize a qualified patient...to engage in the smoking of medical marijuana...while in a motor vehicle that is being operated."
The code section includes awkward wording that essentially means, "these laws should not be interpreted as guaranteeing the right to consume medical marijuana in a vehicle." That part is clear. Here's the rub: there is no law that specifically prohibits smoking marijuana in a vehicle.
If you are caught smoking medical marijuana in a vehicle, the DA will charge you with at least 2 crimes: 1) VC 23152(f) Driving Under the Influence of Marijuana, and 2) HS 11362.79(d) Smoking medical marijuana in a vehicle. I do not believe that this second charge is proper. Here's my reasoning:
HS 11362.79(d) says that the law does not specifically create the right to smoke medical marijuana in a vehicle, but it also does not specifically prohibit that act. That section does not indicate the penalty for its violation. It doesn't even indicate whether the act of smoking in a vehicle is an infraction or a misdemeanor.
Since this code section includes the phrase "medical marijuana", it only applies to qualified patients and not to people who smoke non-medical marijuana in a moving vehicle. That's obviously absurd because the legislature did not intent to treat medical marijuana patients more harshly than non-patients who smoke marijuana in the car.
For these reasons, I do not believe that it's appropriate to treat violations of HS 11362.79(d) as misdemeanors. I understand that the District Attorney's office disagrees with me. They will continue to file misdemeanor charges in these types of cases until we get some better guidance from appellate courts.
In the meantime, our office is prepared to fight criminal charges involving marijuana in vehicles. We have extensive experience with marijuana DUI cases (sometimes called "DUID", or "VC 23152(f)"). We're also experts in the areas of search & seizure law, medical defenses, and police misconduct.
If you or a loved one is accused of a crime involving marijuana in a vehicle, call us for a free consultation. (714) 505-2468. Ask for John.
Thanks for reading.
Orange County Marijuana Lawyer
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