Appellate review of forfeiture

Posted by on

Appellate review of forfeiture

Asset forfeiture refers to the process by which the government seizes an individual’s property that it believes was involved in illegal activity. With respect to marijuana, this involvement can be in the form of property that helps to further a crime (such as a vehicle that was used to transport or store marijuana, in the form of money that was used to purchase the drugs or that was received from the sale of the marijuana or in the form of resource materials that were used to help the accused gain enough knowledge to ultimately commit the offense. Once the government has seized the individual’s property, it can be quite a challenge to get it back, which is why an individual who has been accused of illegal marijuana-related activities must immediately contact an experienced attorney who understands the process and requirements involved in pursuing an appellate review of a forfeiture proceeding.

An appellate review of asset forfeiture proceedings may be sought by either the government or by a property owner who received an adverse judgment during a civil forfeiture proceeding. Either party may appeal from an adverse criminal forfeiture if the defendant’s final sentence (which included a forfeiture clause) was illegal. Civil or criminal forfeiture proceedings that involved federal criminal statutes should be appealed to the appellate section of the criminal division of the U.S. Attorney’s Office. It is because of these types of rigid rules that only a skilled attorney who has an in-depth knowledge about forfeiture proceedings and the appeal process should represent an individual seeking appellate review.

Appellate review of a civil forfeiture must be initiated within 60 days after entry of the original judgment or within 30 days for a typical criminal case (60 under certain circumstances). Review by the criminal division also entails review by the asset forfeiture and money laundering section of the criminal division. Once the asset forfeiture and money laundering section receives the appeal, it prepares a recommendation concerning the review and submits its report directly to the appellate section. The appellate section then reviews the recommendation (as well as the one from the U.S. Attorney’s Office) and then prepares its own report for the Solicitor General’s Office. Based on all of the information it receives, the Solicitor General’s Office then makes a decision concerning the appeal.

Depending on the circumstances of the case and on whether the court’s authority was over the defendant or his or her property, either the government or the individual may dispose of the property if either party fails to obtain a “stay pending appeal” which is a legal tool that basically pauses the case until the appeal is final. However, doing so may have its own legal ramifications, which is another reason why it is so important to retain an attorney who knows how to best protect his or her client’s rights.

Constitutional challenges may be appealed by one having an interest in the forfeited property. Under this type of scenario, the requested relief will either be in the form of monetary damages or equitable relief. “Equitable relief” means providing the owner with his or her original property and is therefore only possible in situations where the illegally seized or wrongfully detained property hasn’t been destroyed.

The outstanding attorneys at The Kavinoky Law Firm understand asset forfeiture and all that it entails with respect to their client’s marijuana-related activities. They are dedicated to protecting their client’s rights and assets and will effectively challenge the government’s authority whenever possible. With law offices throughout this state, including several in and around the Los Angeles area, they are conveniently located for anyone in need of excellent representation. For more information on asset forfeiture and on the appellate review of these types of proceedings, contact the firm today for a free consultation.

Arraignment

Posted by on

Arraignment is typically the first court appearance that an individual accused of a California marijuana-related offense attends. It is a crucial part of the criminal court process and is the defendant’s first opportunity to enter into plea negotiations with the prosecution. In order to receive the most favorable outcome at this stage in the proceedings, it is imperative that the accused appears with a California criminal defense lawyer who specializes in defending marijuana offenses.

Arraignment follows the arrest, booking and initial bail phases of one’s criminal case and is typically held within two business days of the arrest. During the arraignment, a judge tells the accused (now called the “defendant”) exactly what criminal charges have been filed against him or her and what the penalties are that are associated with those crimes. A list of constitutional rights will also be read to the accused. The judge inquires as to whether the defendant has hired a private lawyer or wishes to use the services of a court-appointed attorney (also known as a public defender) and asks the defendant if he or she is prepared to enter a plea of guilty, no contest or not guilty. It should be noted that a “no contest” or “nolo contendere” plea means that the charges will not be contested (like a guilty plea) but makes it so that the plea cannot be used against the accused in the event that a civil case ensures. If the defendant has not yet obtained counsel, the judge may grant him or her a continuance to do so. If the defendant’s bail was not decided in a previous proceeding (which would likely be the case with a marijuana-related charge), the judge will decide whether or not to modify the bail amount or whether or not to release the accused on his or her own recognizance (otherwise known as an OR release).

Before the arraignment concludes, the judge will instruct the defendant to appear at all remaining court dates (which may include a preliminary hearing, a date for any pre-trial motions and the trial date) and will give the defendant the dates for those proceedings. Misdemeanor charges that aren’t resolved at the arraignment will typically proceed to a date where the pre-trial motions will be held and felony charges that are unresolved will proceed directly to a preliminary hearing.

Discovery may be provided to the defense at the arraignment. This typically includes copies of any police reports or other documents that are relevant to the defendant’s case, a list of witness names, any statements made by the defendant or any written or recorded statements that were made by other witnesses, descriptions of any seized evidence and any evidence that points to the defendant’s innocence.

Arraignments can be overwhelming and quite stressful for anyone accused of a criminal charge, especially if the charge is a felony or an individual’s first offense. The compassionate and trusted criminal attorneys at The Kavinoky Law Firm are dedicated to making this difficult time easier for their clients. They have the skill, experience and integrity necessary to competently and successfully guide their clients through the arraignment and all other phases of the criminal court process. Because they have law offices located throughout California, including several in and around the Los Angeles area, they have established relationships with local judges and prosecutors, giving their clients a tremendous advantage when it comes time to negotiate a plea bargain or ask for special consideration on a particular case. For unsurpassed legal advice and representation from a firm who has mastered the defenses that are applicable to California marijuana-related offenses, contact The Kavinoky Law Firm today for a free consultation.

Arrest, booking and bail

Posted by on

Marijuana-related offenses, in California, all subject the accused to the criminal court process. The first stages in this process include arrest, booking and bail. In order to ensure that one’s case isn’t blindly processed through the system, it is vital for the accused to hire a California criminal attorney who specializes in marijuana cases and who knows exactly how to successfully navigate his or her client through these stages.

The arrest officially takes place when the suspect is taken into police custody and no longer has the option to leave or freely move about. An officer is legally entitled to make an arrest if he or she personally observes the suspect commit a crime (for example, he or she sees marijuana plants growing on a property or sees an individual smoking marijuana), if he or she has “probable cause” to arrest the suspect (that is, a reasonable belief that the person either committed or is about to commit a crime, based on a tip which is then corroborated by the officer’s observations, such as a pending sale or information that manufacturing is taking place in a certain location) or if he or she has a warrant, issued by the court.

Booking follows the arrest. Booking is the process by which an individual is formally entered into the criminal court system. During this process, the suspect’s personal information is collected, any personal property is confiscated (which will be returned upon the individual’s release, assuming it isn’t illegally possessed), the officer records information about the alleged offense, performs a search for prior offenses and then fingerprints and photographs the accused. Depending on the particular offense committed, the accused may be given a written citation, so long as he or she promises to appear in court (for minor offenses, such as possession of less than one ounce of marijuana) or will be placed in a “holding cell” or a local jail for more serious offenses.

Bail is the money that one “posts” in order to be released from police custody following the booking process. Those accused of drug charges are typically permitted to either “bail out” or obtain a free release on their own recognizance (also known as an O.R. release). When determining whether one’s bail should be raised or lowered from that listed in the bail schedule or whether one should be released OR, the judge considers the severity of the offense (whether any aggravating factors were present), the accused individual’s criminal history, his or her ties to the community and public safety. When reviewing these issues, the judge assumes that the accused is guilty of the offense, which is another reason why it is so important to be represented by qualified counsel during every stage involved in criminal proceedings who knows how to make sure that his or her clients receive the most favorable results at all times.

If one must post bail, he or she has the option of posting cash bail, which means that he or she must pay the full amount that the court has ordered (which will be refunded once the case is over if the accused attended all of his or her court appearances), or has the option of posting a bail bond. Bail bonds are contracts with bail agents or “bondsmen” whereby they agree to pay the full bail in exchange for ten-percent of the total amount (which is non-refundable). Bail agents also typically require collateral as further security that the individual will make all of his or her court appearances so that the bond will be returned at the end of the case. Under either scenario, if the accused fails to appear, the bail is forfeited to the court.

The outstanding California criminal defense lawyers at The Kavinoky Law Firm excel in successfully representing their clients who were accused of marijuana-related charges during these and all phases of the court process. To learn more about how these exceptional attorneys can help, contact them today for a free consultation.

Asset forfeiture

Posted by on

In California, anyone charged with marijuana related offense may face forfeiture proceedings. Asset forfeiture involves the government taking property – almost any kind of property – that was illegally used or obtained without compensating the owner for its value. An individual need not be convicted for or even charged with a crime before his or her property may be seized and forfeited, so long as the government provides a reasonable connection between the property and the marijuana. Because the laws that regulate asset forfeiture are numerous, technical and complex, it is vital that anyone who has been accused of a marijuana related offense immediately contacts a skilled California criminal defense lawyer who specializes in defending marijuana cases and, as a result, knows how to successfully protect his or her client’s property.

Asset forfeiture proceedings may be non-judicial in nature. These types of proceedings are also known as “summary forfeitures” or “administrative forfeitures”. Non-judicial “summary forfeitures” take place when the property is “per se” illegal – that is, that the property is, on its face, illegal – and includes dangerous, toxic or hazardous raw materials or products and their containers. “Administrative forfeitures” (governed by federal law) typically take place when the property is forfeited to the government by the investigative agency that seized it. This type of procedure applies to property that is worth $500,000 or less, to property that is illegally imported, to vehicles that are used to import, export, transport or store marijuana or to any “monetary instrument” (that is, domestic or foreign money, traveler’s checks, stocks, checks, bank notes and money orders). When such is the case, the government is only required to give the owner notice that the property may be forfeited and judicial proceedings are not required.

Civil judicial forfeiture proceedings take place when the property exceeds $500,000, is forfeitable pursuant to federal law, is not a transporting vehicle or an item that has been illegally imported and is not a monetary instrument. These proceedings also apply when the property is forfeitable pursuant to IRS procedures that exceed $100,000 in value, to all real property (that is, homes, buildings, etc.) regardless of its value and to all property that is forfeitable according to California law.

Criminal forfeiture proceedings may target property that is located outside the United States and includes property that has been involved in a federal criminal offense of which the accused was convicted and only to property in which the accused has a personal interest.

RICO (Racketeer Influenced and Corrupt Organizations) laws fall under criminal forfeiture proceedings and apply when the accused has violated or conspired to violate a RICO statute. The violations include using funds derived from a pattern of racketeering activity to acquire or maintain an interest in an enterprise that deals in interstate commerce, acquiring or maintaining interest in an enterprise through a pattern of racketeering activity and/or using an enterprise to purse a pattern of racketeering activity.

Either an affected individual or the government may file for an appellate review of forfeiture proceedings if he, she or it was the losing party. The laws that typically govern these types of proceedings are those that govern civil appeals. A civil forfeiture case must be appealed within 60 days of the judgment and a criminal forfeiture case must be appealed within 30 days of that same date.

Asset forfeiture is clearly an area of the law where special knowledge is required. When accused of a marijuana related offense, it is imperative for that individual to immediately contact the exceptional criminal attorneys at The Kavinoky Law Firm who have mastered this field of law as it relates to marijuana and other drug offenses. Their experience and in-depth knowledge with respect to forfeiture proceedings gives their clients a tremendous advantage when it comes to defeating the government’s attempts at seizing one’s property. To learn more about how these outstanding attorneys can help, contact The Kavinoky Law Firm today for a free consultation.

Chemical testing in a DUID case

Posted by on

Chemical testing in a DUID case

Although driving under the influence of alcohol and marijuana cases are investigated in very similar ways in California, there are a few differences. One of the main disparities lies within the types of chemical tests that are available to each type of suspect. In this state, an alleged “drunk driver” has the choice of taking a blood or breath test, while an individual accused of driving under the influence of drugs (DUID) has the choice of a blood or urine test. Because prosecutors heavily rely on the results of the chemical test, it is critical that an individual accused of driving under the influence of marijuana hires an attorney who understands the science behind blood and urine tests and who can articulate their weaknesses in a drug case to the judge and jury.

A driving under the influence of marijuana investigation, unlike an alcohol-related DUI, does not provide the investigating officer with the opportunity to do an on-site reading of the driver’s marijuana measurement. In a typical D.U.I. of alcohol investigation, the officer generally has a hand-held instrument, known as a preliminary alcohol screening (PAS) device that immediately displays the driver’s blood alcohol content, letting the officer know that the driver is either above or below California’s legal limit. There is no such test for an individual suspected of driving under the influence of marijuana or any other drug, which means that a suspected driver is arrested for this offense before he or she even submits to a blood or urine test.

Implied consent laws regulate which tests are available under certain circumstances and state that an individual suspected of D.U.I.D. must choose either a blood or urine test. All drivers in this state “consented” to this upon obtaining their driver’s license and the refusal to provide a chemical test will result in additional penalties.

Positive test results established through either of these tests does not mean that an individual is necessarily guilty of driving under the influence of marijuana – a key point that a skilled DUI criminal defense lawyer knows and understands. This is because marijuana can be detected in one’s system long after any impairment has passed. It should be noted that this is one area of the law where California drivers are treated more leniently than drivers in several other states that have “zero tolerance” laws. An individual whose blood or urine test comes back positive for any marijuana in a zero tolerance state will automatically be declared “under the influence”. A knowledgeable attorney in California, however, understands that urine tests detect only certain metabolites of marijuana, which can linger in one’s body for days or even weeks after use. He or she also knows that blood tests are a better indicator, as they actually measure THC (the main active ingredient of marijuana), however, even a blood test can detect low levels for a day or more after use. As a result, an experienced criminal attorney will ensure that the judge and jury understand that an individual who theoretically used marijuana on a Monday could be arrested later in the week, long after the marijuana’s effects had worn off. It must be noted that the only issue in a D.U.I. case is whether the driver was under the influence at the time of driving.

Defenses are available to an individual who tests positive for marijuana use following an arrest for DUID, provided he or she hires a savvy attorney who knows the most convincing ways to employ them. The unsurpassed lawyers at The Kavinoky Law Firm excel in California DUID defense. They keep up-to-date with the latest laws, evidentiary rulings and science that are involved with these types of cases and have mastered the defenses that are available to an individual who has been charged with driving under the influence of marijuana. Their outstanding results speak for themselves. For the most trusted legal advice and excellent representation, contact The Kavinoky Law Firm today for a free consultation.

Civil judicial forfeiture proceedings

Posted by on

A civil judicial forfeiture proceeding is one type of asset forfeiture proceeding that an individual who has been involved in illegal marijuana-related activities may face. Asset forfeiture proceedings involve the government seizing an individual’s property (without offering compensation) that it believes is “reasonably connected” to the criminal activity, either as an aid in the activity or as a profit from the activity. A civil judicial forfeiture proceeding may be presented to the U.S. Attorney’s Office in one of three ways: by the seizing agency because the property seized must be forfeited judicially (as opposed to non-judicially), by the seizing agency because a claim and cost bond (an instrument used to contest an administrative forfeiture, which is a type of non-judicial forfeiture proceeding) has been filed for the property in an administrative forfeiture proceeding or prior to seizure if the investigating agency thinks that it must first obtain a warrant before seizing the property. There are certain rules that the seizing or investigating agency must follow when initiating this type of claim as well as certain rules that the U.S. Attorney must then follow when considering whether to proceed with the forfeiture, which is why it is so important for an individual accused of any marijuana-related offense to contact the skilled California criminal attorneys at The Kavinoky Law Firm who have an in-depth understanding of the rules and regulations that are involved in asset forfeiture and who therefore know how to best protect their client’s rights and assets.

Civil judicial forfeiture proceedings involve property that may not be forfeited non-judicially. This type of property, as it pertains to marijuana or other drug-related activities, may therefore include: (1) property that exceeds $500,000 in value and which is forfeitable pursuant to U.S. Customs procedures and is not a transporting vehicle (for marijuana, for example), an item that has been illegally imported or a monetary instrument (that is, any domestic or foreign money, traveler’s checks, stocks, checks, bank notes and money orders), (2) property that is forfeitable pursuant to IRS procedures that exceeds $100,000, (3) all real property (homes, buildings, etc.) regardless of its value, (4) all property that is lawfully forfeitable but doesn’t incorporate Customs laws or the Internal Revenue Code and (5) all property that has been contested by a claim and cost bond (which, again, is an instrument used to contest an administrative, non-judicial forfeiture proceeding).

When a complaint for a civil forfeiture is filed, the complaint must articulate exactly what property is being sought and how it is reasonably connected to the alleged illegal marijuana-related activity so that the property owner is able to immediately begin an investigation into the facts and is able to respond appropriately. The complaint should therefore contain the basis for the court’s jurisdiction (that is, the basis for the court’s authority), a description of the property, the place and date of the seizure, the seizing agency and the circumstances that justify the forfeiture. If these items aren’t specifically addressed or if the proper notice requirements aren’t given to the property owner, he or she may be entitled to either have the property returned or to be compensated for its value.

Defenses to a civil judicial forfeiture are numerous but only an experienced attorney will know when, which and how to most effectively present them. Examples include situations where the underlying crime that serves as the basis for the forfeiture never occurred, that all or part of the seized property had an independent innocent source and wasn’t used illegally, that “clean” money has been commingled with “dirty” money and that the clean money shouldn’t be subject to forfeiture or that the owner is an “innocent owner” and didn’t know about or had nothing to do with the illegal acts that gave rise to the forfeiture.

Civil judicial forfeiture proceedings are clearly technical and complex and require the skill of a qualified lawyer. For more information on asset forfeiture and to retain the best representation, contact the outstanding attorneys at The Kavinoky Law Firm today for a free consultation.

Criminal forfeiture proceedings

Posted by on

Criminal forfeiture proceedings are a type of asset forfeiture proceeding that may be initiated against an individual who was involved in illegal marijuana-related activities. Asset forfeiture refers to the process by which the government seizes one’s property (without compensation) when it believes that the property was either used to aid in a criminal activity or was a profit from the illegal activity. Because the laws that regulate asset forfeiture are complex, defending a forfeiture action requires the skill and experience of an attorney who has truly mastered this area of the law.

Criminal forfeiture proceedings may be initiated against an individual in the district in which his or her alleged criminal activity took place. This means that property located outside the United States may still be subject to forfeiture under a criminal proceeding. A Criminal forfeiture will be a part of a convicted defendant’s sentence for certain crimes – as a result, one is only subject to this type of proceeding if he or she has been convicted for the charged offense.

Criminal forfeiture must first be authorized by federal law. If it is, it includes property that was wrongfully used or acquired during the offense for which the defendant was convicted and only applies to property in which he or she has an ownership – but not necessarily an exclusive – interest. This may apply to all types of real property (houses, buildings, etc. and any items – such as marijuana plants – that are growing on, affixed to or found on the land) and all types of personal property (including rights, privileges and interests or claims in stocks, etc.). The government may criminally forfeit property that was involved in or was a profit from the charged offense and may also forfeit any property that it can directly trace back to the illegal activity. It must be noted that simply because an individual has used or transferred his or her profits, proceeds or other property before his or her conviction, it will not prevent the government from reaching and forfeiting the full value of the illegal property, as it can collect the money from any assets still owned by the defendant.

Marijuana and other drug offenses are additionally regulated by their own specific statutes, which is why it is so important for an individual who may be subject to this type of proceeding to retain the legal services of an experienced lawyer. With respect to certain felony marijuana offenses, it is presumed that the government may forfeit property that it declares “drug proceeds” if it can prove by a “preponderance of the evidence” (which means that it was more likely than not) that the property was acquired during the period of the felony violation or within a reasonable time thereafter and that there was no likely source for that property other than the felony violation. In addition, any property that was either used or intended to be used in any manner to commit or aid in the commission of the underlying felony marijuana offense is also subject to criminal forfeiture. This is one area where criminal forfeiture is broader than civil judicial forfeiture proceedings, as there are more limited restrictions on what type of property may be forfeited under civil law.

Depending on which laws regulate the forfeiture proceedings, the government may be held to a preponderance of the evidence standard or a “reasonable doubt” standard – the highest under the law. As a result, it is critical that a savvy criminal attorney represents the accused who understands these different burdens of proof. In addition, if an individual has his or her assets seized, he or she may wish to appeal the decision, which also requires the assistance of a knowledgeable attorney. The exceptional attorneys at The Kavinoky Law Firm are here to help. They receive on-going training and education with respect to this specific area of the law and how it relates to their client’s marijuana cases, enabling them to effectively defend against an asset forfeiture proceeding. Contact them today for a free consultation and for unparalleled legal advice.

Criminalist testimony

Posted by on

Criminalist testimony in a California driving under the influence of marijuana trial

A driving under the influence of marijuana case presents many challenges to both the prosecutor and criminal defense lawyer that a driving under the influence of alcohol case doesn’t. One of the reasons is because there is no chemical test that gives a “number” as to the level of impairment in a marijuana-related case like in an alcohol-related case. Another reason is that the effects of marijuana on driving aren’t as recognizable or as distinguishable as an alcohol-related DUI. Simply having the drug in one’s system (if evidenced by a blood or urine test) may encourage conservative jurors to incorrectly conclude that the accused must have been under its influence. These are just a few of the reasons why it is imperative that an individual accused of this offense hires an experienced California criminal defense lawyer who specializes in driving under the influence of drugs (DUID) who will know the most effective ways to offer and rebut this type of challenging evidence.

Criminalist testimony regarding driving impairment is vital to the prosecution because there is no “per se” drug test that indicates when an individual is under the influence. As a result, officer observations and criminalist testimony provides the bulk of the state’s case. The criminalist is typically a member of the local police department and, as such, is a member of the “prosecution team”. A good defense attorney will generally address this issue, pointing out the inherent bias that the criminalist therefore has. The criminalist will typically testify that the driving pattern, physical signs and symptoms and behavioral observations reported by the officer are consistent with the known effects of marijuana and that, based on his or her review of the report (never having met or studied the accused), he or she believes that the driver was under the influence of marijuana.

Criminalist testimony, when presented on behalf of the defense, typically addresses the fact that correlating positive marijuana results with a degree of impairment is subjective and makes it difficult to predict with any amount of certainty whether someone was impaired based on a chemical test. The defense’s criminalist will further point out the fact that the effects of marijuana will vary between individuals, influenced by such factors as one’s history of drug use, tolerance, health, an individual’s sensitivity to the drug, metabolism and a variety of other conditions. He or she will explain to the jury that marijuana can be detected in one’s system via a blood or urine test for days and even weeks after use, long after the effects of impairment wear off. Depending on the circumstances, he or she may even call into question the experience, training or observations that the officer made as they relate to marijuana use.

Clearly, criminalist testimony is important to both sides. Even more important is having a criminal attorney who knows and understands the science behind how marijuana affects and remains in one’s body so that he or she can effectively convey the criminalist’s testimony to the judge and jury in an articulate and uncomplicated manner. The exceptional California DUI attorneys at The Kavinoky Law Firm specialize in driving under the influence of drug cases as well as non-driving cases that involve marijuana, which provides their clients accused of driving under the influence of marijuana with unparalleled legal representation. With law offices located throughout the state, including several in and around the Los Angeles area, they are easily accessible for anyone in need of an outstanding defense. They have a variety of criminalist expert witnesses that they rely on, depending on the facts of the case, which allows them to present the most effective defense for each individual client. To learn more, contact The Kavinoky Firm today for a free consultation.

Cultivating marijuana

Posted by on

Every person who plants, cultivates, harvests, dries or processes any marijuana or any part thereof is guilty of a felony offense in California, which is punishable by sixteen months or two or three years in the state prison, unless one can prevail at a Williamson hearing, showing that the cultivation was for personal use, which may entitle the individual to diversion instead. Because the penalties can be severe for an individual convicted of this offense, it is critical that the accused contacts a skilled California drug attorney immediately upon his or her arrest who can begin building an aggressive defense.

“Cultivating” means fostering the growth of the marijuana. Cultivating marijuana is considered a continuing offense, in that it continues at least during the period of cultivation, so one need not be physically present at the site of cultivation to be guilty of this offense. “Harvesting” means gathering the crops of the marijuana. “Processing” means changing the form of the marijuana plant to make it useful for smoking or other narcotic purposes. If it is proven that an individual participated in one of these activities (or that he or she planted or dried marijuana) and that he or she knew it was a marijuana plant or some part of a marijuana plant, he or she may be convicted of this offense.

There are a number of defenses that apply to this crime that an experienced criminal defense lawyer is familiar with and knows how to effectively convey to a judge and jury. The outstanding attorneys at The Kavinoky Law Firm have mastered this area of the law and know how to meticulously review a case to spot these defenses as well as the other issues that may raise concerns about the legitimacy of their client’s arrest.

Some of the most common defenses to cultivating marijuana include lack of knowledge, a medical marijuana exemption and illegal search and seizure. These are only a sample of some of the defenses that are applicable to this charge – a seasoned criminal attorney will know a variety of additional defenses that he or she may choose to employ based on the facts of each individual’s case.

Lack of knowledge might come into play if the marijuana plants were growing outside or were tucked away in an otherwise unused part of the property and the accused was unaware of the plant’s presence or species. This may be the case where an individual is renting a property, unaware of what a previous tenant was growing or may apply to a family member who was growing the drug without the knowledge of others who also resided on the property. Once again, this is just an example of when this defense might apply – a savvy attorney will know if this defense will work when he or she reviews one’s specific case. It should be noted that an owner of land may be charged as an aider and abettor for marijuana cultivation if he or she had knowledge of the plant’s presence.

A medical marijuana defense may be argued in situations where a patient or a patient’s caregiver has received a recommendation from a doctor stating that marijuana use would benefit the patient’s health. Using, cultivating and transporting marijuana are permitted under these circumstances, as long as the individual participating in these activities abides by the laws that regulate such uses.

A practiced criminal attorney will always scrutinize a case for any illegal search and seizure issues, as this type of defense is the most successful in having one’s case dismissed. Whether the police had a warrant, whether the warrant was based on legitimate information and whether there was sufficient probable cause to support the search are all issues that the defense attorney will consider when building a defense.

The exceptional attorneys at The Kavinoky Law Firm are here to help. They specialize in California’s drug laws and the defenses that apply to these laws and know what it takes to win. Contact them today for a free case evaluation and for unparalleled representation.

The DMV

Posted by on

The DMV

DMV involvement in a driving under the influence of marijuana arrest is rare and will typically only take place if the department believes that the driver poses a significant health and safety risk to the public or if he or she refused to provide a blood or urine sample. When the DMV does get involved, it is critical that the accused hires a California criminal defense lawyer who has experience defending clients against DMV administrative hearings in order to avoid the severe consequence of losing one’s driver’s license.

The DMV is immediately notified when an individual has been arrested for “drunk driving” if he or she had a blood alcohol content (BAC) of a 0.08% or greater. This is because California has what’s called a “per se” law which states that anyone who has that BAC is above the legal limit and may be automatically considered under the influence. When that happens, the DMV automatically suspends one’s driver’s license unless an attorney can convince it to do otherwise at a hearing that the defense must request within 10 days of the arrest.

Driving under the influence of marijuana, in California, has no similar “per se” law, as simply having the drug in one’s system isn’t enough to infer that he or she was under its influence. Because there is no “per se” law in this state for driving under the influence of drugs (DUID), an individual arrested for this offense will not typically have his or her driver’s license administratively suspended by the DMV. That being said, there are two exceptions to this rule.

The DMV is notified when an officer makes a DUID arrest if the officer initially suspected that the driver was driving under the influence of alcohol. When an officer suspects that alcohol has caused a driver’s impairment, he or she gives the driver a form that serves as a notice of suspension and a temporary 30-day license. That form is also sent directly to the DMV. If a chemical test later reveals that drugs and not alcohol were involved, the DMV usually tells the arrested individual that he or she may simply apply for a duplicate license and that the department will not be taking any independent action. However, if the DMV is alerted to the fact that the DUID arrest is the driver’s second or more, they may suspend the license, declaring that the accused poses a health and safety risk to the community. In this situation, it is vital to request the hearing within 10 days of the arrest and to hire a skilled DMV hearing attorney who knows how to convince the hearing officer not to impose such a restriction. Without a knowledgeable attorney, the suspension is virtually guaranteed.

Refusing to submit to a blood or urine test will also invite the DMV to take action. This is because everyone who receives a driver’s license is deemed to have given his or her consent to submit to a chemical test if an officer believes that he or she is under the influence of drugs or alcohol. This is known as the “implied consent” law. When the officer tells the driver that he or she must choose a test, he or she must also inform the suspect that refusing to submit to one will cause his or her driver’s license to be automatically suspended for 1-3 years, depending on how many similar violations the individual has previously been charged with.

When arrested for driving under the influence of marijuana (especially if the accused either refused to take a chemical test or knows that this is his or her second or subsequent offense), it is imperative that he or she immediately contacts the outstanding criminal attorneys at The Kavinoky Law Firm who know the most effective ways to challenge a driver’s license suspension, both at the DMV and in court. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.