California Criminal Defense Blog

California’s Public Safety Realignment Act (AB 109) took effect two weeks ago, on October 1, 2011. Passed in the midst of a tightening economy and litigation over overcrowded prisons, the law makes major changes to criminal sentencing and post-release supervision practices.

The law “realigns” from state to counties a significant level of criminal justice responsibility. It mandates that people convicted of non-violent, non-serious, non-sex offense felony crimes (such as certain California drug crimes) be punished with county jail instead of prison.

It also provides for low-risk parolees to be supervised at the county level instead of by the state California Department of Corrections and Rehabilitation.

According to a September 2011 Los Angeles County Implementation Plan, in year one Los Angeles law enforcement officials will be charged with handling over 15,000 additional offenders who would otherwise have been paroled at the state level or initially sentenced to prison.

It is assumed that 44% of prisoners released under the new community supervision scheme will have been sentenced for a California drug crime.

Skeptics say the law will lead to public safety problems or, in conservative communities, to nothing more progressive than overcrowded jails. But others hope that we will seize the opportunity and spearhead new evidence-based practices focusing on rehabilitation.

The optimists say that a renewed focus on rehabilitation, including substance abuse counseling and sentencing alternatives for those convicted of California drug crimes, may well lead to reduced recidivism and stronger, safer, more sustainable communities.

Ex USC quarterback Mitch Mustain is out on bail after being arrested for selling drugs. This means that he most likely violated Health and Safety Code 11352 HS California’s law against selling or transporting drugs. This arrest comes as he is preparing for the NFL draft.

Although not much has been released about the investigation or arrest, we do know that the arrest was the result of a sting operation. “Sting operations” are a common way for police to investigate California drug sales charges. These operations are usually conducted undercover either in-person or via the Internet, or from observation/surveillance posts. Many times these operations don’t comport with legal procedures or prove to be unreliable when it comes to how the actual drug sales took place.

Mustain’s felony arrest was for allegedly selling prescription drugs. Health and Safety Code 11352 HS California’s law against selling or transporting drugs makes no distinction between selling illicit drugs or prescription drugs…selling drugs is a crime in California, period…that is, unless you are a pharmacist or other medical employee with legal authorization to do so.

If convicted, Mustain could face up to five years in the California state prison.

California and Nevada both take a progressive view of drug possession cases. Instead of punishing defendants with prison and a conviction on their record, the courts offer "diversion" programs to rehabilitate the defendants. If successful, their cases are dismissed and they can petition to seal their records right away.

California's main programs that offer treatment instead of prison are PC 1000 and Proposition 36. PC 1000 lasts eighteen months and is open to people charged with simple possession or being under the influence. Prop 36 is similar except that it doesn't prevent you from having your license revoked.

Nevada's main drug diversion program for possession charges is Nevada Drug Court. Nevada drug court typically lasts a year and consists of weekly or biweekly drug counseling sessions and court appearances. Completing Nevada drug court usually relieves you from getting a conviction, and you can legally deny during job interviews that you've ever been charged.

Two Nevada men were arrested last week for a variety of drug violations. They were originally stopped because police thought they were burglars. Turns out they were not burglars, but both had warrants out for their arrests. When the cops searched the men before they were transported to jail, the police found, among other contraband, pipes that contained residue from methamphetamines and marijuana.

Pursuant to California’s “possession of drug paraphernalia” law, if the pipes were exclusively used to smoke marijuana, the men would not be subject to prosecution under this law. Possessing devices for smoking marijuana is not prohibited by California law. However, if, in fact, traces or residue of methamphetamines were found in the pipes, the pipes would clearly be illegal.

Yet even with that, there are still a number of legal defenses to California’s “possession of drug paraphernalia law”. Unless the prosecution can prove that you (1) knew of the paraphernalia’s presence, and (2) knew that the object was, in fact, paraphernalia, you can’t be convicted of this law.

Stated in Penal Code 1000, California drug diversion allows certain defendants facing narcotics charges to complete a rehab program rather than go to jail. Generally, only nonviolent first-time drug users or possessors qualify. And those who underwent a prior drug diversion program within the last five years do not.

Penal Code 1000 offers a unique feature in California law: those who successfully complete the program are immune from administrative consequences from state licensing agencies. That is, licensing boards may not consider the case or the arrest in granting, renewing or denying state licenses.

For example, suppose Lucy gets arrested for possessing a few grams of cocaine (for personal use). Lucy opts to participate in Penal Code 1000 drug diversions and completes all the requirements successfully. She later attends nursing school and applies to the Board of Registered Nursing for an RN license. The BRN may not deny her a license because of her drug arrest…nor may it use the case against her for any purpose.

Continue reading "Penal Code 1000 and State Licensing Agencies" »

Under new Obama Administration policies, Federal authorities have stopped making raids on legitimate medical marijuana clinics. But officials in Los Angeles and other municipalities are picking up the slack. The city has enacted a 2-year moratorium on new dispensaries, and is using zoning law and local ordinances to frustrate the activities of existing ones.

By way of Proposition 215 and Senate Bill 420, California marijuana law allows people to possess, use and cultivate a limited amount of pot for qualified medical purposes. The medical marijuana user must get approval from a primary care physician and usually must obtain a county-issued marijuana health card.

In spite of the clear statement of California voters to allow legitimate medical marijuana in the state, dissenting local officials continue to use every resource in their arsenal to impinge on patients' rights and shut down dispensaries. On the contrary, cities should effectuate the will of the people and facilitate safe access to medical pot for qualified users.

In 2000, California overhauled its drug laws by enacting Proposition 36. The “Substance Abuse and Crime Prevention Act” allows most offenders convicted of casual drug use or possession to undergo treatment in lieu of any jail time. The policy goals of the new law were (1) to reduce drug abuse by treating addicts, and (2) to save scarce jail and prison space for more dangerous criminals.

Yet people convicted of selling narcotics and possession of narcotics for sale are ineligible to participate in Proposition 36. While it makes sense that major drug dealers should not escape punishment by feigning the need for treatment, the blanket exclusion of sales-based offenders from the program does not seem accurate.

Many offenders arrested for selling (or possessing for sale) a small quantity of drugs really are casual users selling petty amounts to fund their own drug addiction. Most of them are not dangerous and many of them could benefit much more from treatment than incarceration. Proposition 36 could be more effective if it gave judges discretion to examine the facts of each case and offer the program where appropriate, even for many defendants accused of selling narcotics.

California is thought to offer one of the more lenient sentencing schemes in the nation for casual drug users. Offenders charged with first-offense drug possession almost always can escape custody time (and get the charges dismissed) through Penal Code 1000 drug diversion or Proposition 36. Both of these programs offer treatment as an alternative to jail and a criminal record.

But one California drug law stands out as unusually harsh: Health & Safety Code 11550: Being Under the Influence of a Controlled Substance. This law mandates a minimum 90 days of jail for anyone convicted. The law applies to anyone found to be intoxicated on either an illicit narcotic, or even a prescription drug for which the user does not have a lawfully issued prescription.

First time California drug crime offenders may opt for diversion or Proposition 36. Still, a “90 day minimum” is almost unheard of for any first offense under California law. Even a person convicted of selling cocaine can get probation with no mandatory jail time. So it’s unclear why the law punishes casual users so severely, more so in this case than even drug dealers.

California law draws a sharp distinction between marijuana for personal use versus cultivating marijuana or selling marijuana. The former triggers only a small fine and no jail time. The latter can land a person in state prison for years.

Under health & safety code 11357, a person possessing less than an ounce of pot can be punished by no more than a $100 fine. But if he tries to sell the weed or is found to possess the marijuana for sale, he can be charged with a felony and sent to prison for up to 3 years.

The policy aims of the legislature are clear: give casual users no more than a slap on the wrist, but go after growers and sellers with a fierce sword. In fact, the penalties for selling or possessing for sale marijuana nearly match those pertaining to illicit drugs such as cocaine or heroin.

Not only are these laws inconsistent, but police, prosecutors and courts spend hundreds of millions of dollars each year enforcing marijuana "crimes." This occurs in spite of ample evidence that marijuana is a benign substance that actually relieves stress and provides medical benefits.

In November 2008, the Press-Enterprise reported in a story on the developments in a large-scale federal cocaine trafficking probe in San Bernardino County. A criminal complaint in San Bernardino Superior Court names 19 defendants and includes felony counts for a range of offenses associated with a criminal drug case.

California drug trafficking cases often involve multiple charges originating from different sections of the federal Controlled Substances Act. In the San Bernardino drug probe, some of the charges mentioned in the Press-Enterprise story are conspiracy, cocaine transportation, and possessing cocaine for sale.

Any one of these charges is quite serious for the defendants involved. Depending on the quantities of cocaine involved in the case, first-time offenders listed as defendants in this case and charged with possessing cocaine for sale could receive up to 10 years in prison as a minimum sentence. Prior felony drug convictions increase jail time and other penalties by a considerable amount.

Continue reading "San Bernardino Cocaine Trafficking Probe" »

A recent Los Angeles Times blog by Susan Brink talks about new tests just like a Breathalyzer that researchers hope will detect drivers operating under the influence of illegal drugs. The National Institutes of Health has reportedly released guidelines on possible ways to conduct these tests. Just as suspected drunk drivers are asked to blow into a Breathalyzer, someone suspected of driving under the influence of marijuana or cocaine may be asked to spit into a cup. Your saliva will then be tested for the presence of drugs.

Experts are hoping that these new guidelines, which are still evolving, will be a good way to identify drivers under the influence of drugs and keep them off the roadways. But the question is: Is this an effective way of finding out if drivers are really impaired? As DUI and drug crime defense attorneys in California, we have consistently found that Breathalyzers that are used in the field by police are not at all an effective measure of blood alcohol content (BAC). A lot of these testing devices are not calibrated properly and show wrong readings, which we have challenged in court and won.

Officials who authorize field tests should seriously consider their efficacy and reliability. First, the tests must be reliable. Secondly, the officers who are conducting the tests should be trained properly and be able to carry out the tests in a proper manner. We’ve seen that hasn’t been the case with Field Sobriety Tests. Even the National Highway Transportation Safety Administration (NHTSA) studies show that these tests are not an effective way of measuring whether a driver is intoxicated.

An experienced and knowledgeable Southern California drunk driving defense attorney will be able to help you fight your DUI despite Breathalyzer tests that show a BAC of 0.08 or higher. A truly skilled DUI defense attorney can effectively challenge field sobriety tests and defend the charges against you. If you or someone you love has been arrested on suspicion of a DUI, please call us to schedule a free consultation.

Mackenzie Phillips, former sitcom actress and star of “American Graffiti,” has been charged with the possession of drugs after she was arrested at LAX, the Los Angeles Daily News reports. Phillips, 48, was reportedly arrested Aug. 27 after she went through a security check at the Los Angeles International Airport Terminal 4 and officials allegedly found illegal drugs and drug paraphernalia such as hypodermic needles.

Phillips has been charged with two felony counts of possession of a controlled substance, heroin and cocaine and one misdemeanor possession of needle or syringe. She is currently out on a $20,000 bail and is expected to be arraigned next month.

Possession of narcotics, recreational drugs or unauthorized prescription drugs is a serious crime in California. But as Southern California Drug Crime Defense attorneys who have successfully defended numerous people charged with drug crimes, we know that many of these cases involve illegal search and seizure – which means the arresting officer did not follow state law when he or she searched your vehicle, residence or person for the drugs. In such situations, it’s extremely difficult for the state to prove to whom the drugs belong.

If you or someone you know has been charged with a drug crime in Southern California, please call Los Angeles criminal defense attorney Neil Shouse to discuss your case for free. We have the background, the experience, the knowledge and the expertise it takes to keep you out of jail and get you the help you need.

Marijuana law in California could be described as unusually lenient when it comes to casual users, and rather draconian as to sellers and distributors.

A casual user caught with under an ounce is charged with Health & Safety Code 11357 : Marijuana Possession. The maximum sentence for the offense is a $100 fine, plus county penalty assessments. But the person convicted could not be put in jail. Compare this with cocaine possession, which can land a person in the joint for 3 years.

The situation changes if the person is charged with Marijuana Possession for Sale under Health & Safety Code 11359 . If convicted, he faces probation, fines and up to 3 years in state prison. If the person is caught for sale of marijuana under Health & Safety Code 11360 , the prison term can be up to four years.

Finally, for cultivation of marijuana one can be convicted of Health & Safety Code 11358 . This offense carries up to 3 years is state prison. But California marijuana law makes an exception for someone who grows just a few plants for medical purposes.

The aim of the law is obviously to punish growers and sellers severely, but give casual users and possessors just a slap on the wrist. But if the substance is benign enough that it doesn’t warrant going after simple users, why do we invest enormous resources going after the suppliers?

San Bernardino County Sheriff’s officials arrested a man early Sunday morning after a security guard near the San Antonio Dam reported seeing him carrying marijuana plants, according to an article in the Inland Valley Daily Bulletin newspaper. The guard saw the man with the plants at about 1 a.m. Sunday, the newspaper reported.

When police responded to the guard’s call, they found Mark Stephens, who matched the guard’s description. At first Stephens denied that he was the one seen carrying the marijuana plants, but later changed his story and said he was in fact the man the guard had seen with the plants.

Continue reading "Police Arrest Man Carrying Marijuana Plants" »