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California Money Laundering

Posted by Kyle Gaffney on April 11, 2018

Since AMC’s premier of Breaking Bad, many people have became intrigued with the criminal world and how criminal enterprises logistically function. Disguising their obscene wealth becomes a significant factor for the characters, and they purchase a car wash to use as a filter for their money. Their actions exemplify California Money Laundering at its most basic. The criminals use an intermediary to conceal the source of criminal funds in order to appear legitimate, thereby avoiding suspicion from law enforcement officials.

California law describes two distinct forms of money laundering. California State Penal Code 186.10 defines money laundering related to any type of crime. California State Health and Safety Code 11370.9 concerns money earned from drug crimes.

An example of money laundering under California State Penal Code 186.10 involves a married couple. The husband runs an illegal gambling ring on the weekends and brings home an average of $5,000 every week. During the week his wife consistently deposits the cash into their joint banking account. Although she never takes part in the illegal activity, she knows where the money came from. This is enough to convict a person of money laundering.

An example of money laundering under California State Health and Safety Code 11370.9 involves a successful drug dealer. Throughout the month he makes $30,000 by selling black tar heroin and cocaine. He uses the cash from drug sales to stock the registers of a fleet of food trucks that he owns. He uses the food trucks to conceal the source of the drug money, and thus can be convicted of money laundering.

The prosecution must prove three elements of the crime in order to convict someone of money laundering in the State of California.

The individual conducted or attempted to conduct a transaction through a financial institution.
The transaction met the minimum amount of money required by California state law.
- $5,000 over a 7-Day period or $25,000 over a 30 day period

The individual took part in the financial transactions to promote illegal activity.

The State of California can convict people of money laundering whether or not they were involved with the other illegal activities that generated the funds.

California law considers both forms of money laundering as wobblers. meaning the prosecution may pursue misdemeanor or felony charges for money laundering. The charges depend on the defendant’s criminal history as well as on the facts of the case.

Misdemeanor penalties can include jail time of up to one year, and fines of up to $1,000.

Felony penalties include jail sentences of from 16 months to four years, and fines of up to $250,000, or twice the amount of money laundered, whichever sum is greater.

History of Money Laundering

Al Capone arguably ran the most successful organized crime ring in the United States during the prohibition era. Although he earned upwards of 100 million dollars annually through bootlegging, extortion, prostitution, and illegal gambling, the authorities could not find the money. Capone invested in cash-only laundromats as a way to obscure the source of his financial gains, thereby coining the phrase “money laundering.”

Currently, the term refers to any process that “cleans” criminally attained funds of their illicit origins. This process allows the funds to be used legally.

While Capone’s actions coined the term “money laundering,” the practice has been around as long as money has existed.

The three integral steps of money laundering involve placement, layering, and integration.

Placement involves converting illegally obtained money into assets that seem legitimate. The practice could involve an individual depositing funds into a bank account of a separate entity. The separate entity then functions as a middleman between the criminal money and legitimate spending.

Layering involves using a multitude of transactions in order to distance the funds from their criminal origins. The practice could involve multiple transfers across multiple accounts, or the purchase of tangible property. Basically, layering disguises the money’s source.

Integration allows the money to reenter the mainstream economy. Moreover, it benefits the original owner. The owner can invest the money in legitimate businesses and produce fake invoices to further mask the origin of the money.

Prior to 1986, the federal government did not recognize money laundering as an independent crime. Federal prosecutors needed to link money laundering to a separate crime, such as tax evasion in the Al Capone case. However, the Money Laundering Control Act of 1986 permanently outlawed money laundering as an individual crime.

The Money Laundering Control Act of 1986 began to crack down on money obtained from transporting and selling illegal drugs. Drug trafficking often occurred through large-scale organized crime rings. However, low-level workers handled the actual transportation and sale of the drugs while crime ring leaders were able to keep the profits.

The money laundering Control Act of 1986 allowed prosecutors to charge drug bosses for merely handling the money attained through illicit activity.

Defining California Money Laundering

Understanding the various terms used in California law pertaining to money laundering can facilitate an understanding of the crime and it’s definition.

California State Juror Instructions 2997, Money Laundering, provides the following explanations:

“Financial institution” means any national bank or banking institution located or doing business in the State of California.

A “transaction” includes the deposit, withdrawal, transfer, or bailment, loan, pledge, payment, or exchange of currency or a monetary instrument, or the electronic, wire, magnetic, or manual transfer of funds between accounts by, through, or to, a financial institution.

A “monetary instrument” means money of the United States of America, or of any other separate entity

“Criminal activity” means a criminal offense punishable under the laws of the State of California by death or imprisonment in the state prison, or a criminal offense committed in another jurisdiction which, under the laws of that jurisdiction, is punishable by death or imprisonment for a term exceeding one year.

A “foreign bank draft” means a bank draft or check issued or made out by a foreign bank, savings and loan, casa de cambio, credit union, currency dealer or exchanger, check cashing business, money transmitter, insurance company, investment or private bank, or any other foreign financial institution that provides similar financial services, on an account in the name of the foreign bank or foreign financial institution held at a bank or other financial institution located in the United States or a territory of the United States.

California State Penal Code 186.10

California State Penal Code 186.10 defines general money laundering as:

Conducting or attempting to conduct, a transaction through a financial institution.

The transaction or series of transactions through the financial institution must add up to a total value of more than $5,000 over a 7-Day period, or more than $25,000 over a 30-day period.

The individual must conduct the transactions:

– in a deliberate attempt to promote criminal activity

– with the knowledge that the funds originally came from illegal activity

Example

An example of General money laundering involves Jan. Jan runs a brothel and makes $1,500 a day. Every Monday and Thursday she deposits $4,500 into the same bank account. The State of California could convict Jan of general money laundering. Even though she never attempted to conceal the origin of the funds, she did make multiple deposits within a seven-day period totaling more than $5,000. The money came from an illegal source.

However, the prosecution must prove the defendant intended to support criminal activity.

Another example involves Ryan and Kelly. Ryan and Kelly began dating years ago. Ryan explains to Kelly that he wants to start a business, but needs start up money. Kelly gives Ryan $15,000 as an investment for what she believes to be equity in a legitimate business. However, Ryan uses the money to start a meth lab.

Kelly did not know that her money would be used to finance criminal activity involving controlled substances. She therefore cannot be convicted of money laundering.

California Health and Safety Code 11370.9

California Health and Safety Code 11370.9 describes money laundering in connection with controlled substance crimes.

The prosecution must prove three things in order to convict an individual of money laundering in connection with controlled substance crimes.

The individual received, acquired, or engaged in financial transactions involving money or tangible property that he or she understood to have resulted from a controlled substance offense.
He or she did so to conceal or disguise the source, ownership, or control of the money.
The amount of money laundered totaled more than $25,000 over a 30-day period.

Illustrative Examples

Example A.

Michael sells cocaine. One week he deposits $10,000 into a single bank account. He intends to use that drug money to pay his living expenses over the next two months.

Under California State Health and Safety Code 11370.9, Michael cannot be convicted for two reasons. First, he did not attempt to conceal the origin of the money that he deposited into a bank. Second, he only deposited $10,000, which is less than the required amount of $25,000.

However he may very well be charged under California State Penal Code 186.10.

Michael made a deposit to a bank account that totaled more than $5,000, and he understood the money came from criminal activity.

Example B.

A related example involves Michael and his cocaine business. Over the next month, Michael sells $40,000 worth of cocaine, and now has $40,000 in cash. Michael understands the inherent risk of carrying that much cash. However, he also knows that he cannot deposit $40,000 of illegal money into a bank account.

Michael makes a deal with his friend Scott. Scott owns a pawn shop, and can use the cash to stock the register. Michael agrees to give Scott $40,000 in cash. In return, Scott will give Michael $40,000 in the equity of his pawn shop.

The prosecution could not charge Michael under California State Penal Code 186.10 because he never made a transaction through a financial institution.

The prosecution could charge Michael under Health and Safety Code 11370.9 because he engaged in financial transactions designed to hide the origin of illegal money derived from a drug crime. Plus, the total amount of money totaled more than $25,000.

Example C.

Yet another way money laundering can be conducted is exemplified by Michael’s cocaine business. After selling $40,000 worth of cocaine, he recognizes that he needs to get rid of the cash. On January 1st, he approaches a gold dealer and purchases $20,000 in gold. On February 19th, he spends the other $20,000 on gold from the same gold dealer.

Although Michael engaged in transactions designed to conceal the origin of his cocaine money, he could not be convicted of money laundering.

Michael only purchased $20,000 in one month, and his transactions never totaled more than $25,000 in a 30 day period. Therefore, Michael cannot be convicted under Health and Safety Code 11370.9.

Michael also cannot be convicted under Penal Code 186.10 because the transactions involved a gold dealer, and not a financial institution.

Penalties of California Money Laundering

The State of California considers both forms of money laundering to be wobblers. This means the prosecution may pursue either misdemeanor or felony charges for money laundering depending on the defendant’s criminal history, and on the specific facts of the case.

Misdemeanor penalties for either form of money laundering include the following:

Up to one year in county jail
Fines of up to $1,000

The felony penalties for Penal Code 186.10, General Money Laundering, include the following:

Jail time of from 16 months to 3 years
Fines of up to $250,000 or twice the amount of money laundered, whichever sum is greater
The maximum fines increase if the defendant has any prior money laundering convictions.
The maximum prison sentence increases if the total amount of money laundered is more than $50,000.

The felony penalties under California State Health and Safety Code 11370.9, Controlled Substances Money Laundering, include:

Prison sentences of from 2 to 4 years
Fines of up to $250,000, or twice the amount of money laundered, whichever sum is greater

Understanding Money Laundering in California

Money laundering covers any process designed to obscure the origin of illicitly obtained money.

The State of California recognizes two forms of money laundering. Penal Code 186.10 concerns money laundering related to any type of criminal activity, while Health and Safety Code 11370.9 pertains to money laundering related to any drug crime.

The State of California considers both crimes to be wobblers. Consequently, the prosecution can pursue either felony or misdemeanor charges.

The misdemeanor penalties include county jail time of up to one year, and fines of up to $1,000.

On the other hand, felony money laundering charges include penalties of from 16 months to four years in prison, as well as fines of up to $250,000, or twice the amount of money laundered, depending on which sum is greater.

Defending Against Money Laundering Charges in California

Regardless of the money laundering charge, experienced criminal defense attorneys can mount the most effective legal defenses.

Money laundering convictions under Penal Code 186.10 require both intent and knowledge. Experienced defense attorneys can show that the defendant neither intended to promote criminal activity, nor understood that the money came from criminal activity.

Because conviction under Health and Safety Code 11370.9 requires an intent to hide the source or owner of drug proceeds, the prosecution must prove that the defendant both knew the source of the funds, and intended to hide it.

The amount of money laundered determines whether the prosecution can pursue money laundering charges. If the defendant did not make his transactions with the required amount of money as defined by law, he or she may not be convicted of money laundering.

One of the most important factors of any criminal charge pertains to police behavior. An experienced criminal defense attorney can examine the timeline, research the situation, and accurately understand the series of events. If the defense attorney discovers police misconduct, such as illegal searches or seizures, then all evidence against the defendant becomes inadmissible.

Working with an aggressive defense attorney can lead to the most successful outcome for defendants accused of money laundering crimes.

Drugs in and out of California Prisons

Posted by John Devendorf on December 18, 2015

More than 100,000 Californians are currently in California prisons. Nearly 10,000 alone are located in the Los Angeles central jail system, the country’s largest prison.

Many of those serving sentences are doing so for drug crimes and some of them for minor drug offenses. Before Prop 47 passed, even more people served time for small-time drug crimes. Prop 47 serves to reduce a number of minor drug from felonies to misdemeanors. Unfortunately, according to recent statistics, drugs don’t just put people in prison. Drugs also release inmates from prison through drug overdoses and deaths.

California Prisons: Inmates & Drug Overdoses

Over 150 California prison inmates died of drug overdoses in the past ten years. That number is three times the national average. Thus, it requires the discussion regarding the prevalence of drugs in the state’s prisons. Jeffrey Beard, Secretary of the California Department of Corrections and Rehabilitation, told state legislators that illegal drugs are rampant in the prisons. The Department is spending $8 million on anti-drug activity. This funding includes drug-detecting scanners, drug-sniffing dogs, and strip searches of any suspicious visitors.

So far, the drug-detecting efforts reveal very few results. Since December of last year, more than 6,000 scans of visitors and prison employees returned a sum total of zero drugs. Rather, it has prompted civil rights advocates to speak out against the new policies. False alarms by drug-sniffing dogs, and the drug scanners may lead to strip searches that go too far.

Lawmakers have added language to the current California budget plan to end strip searches, and re-evaluate the anti-drug efforts. According to Democratic Senator, Loni Hancock, “It’s a humiliating process, can be easily used to humiliate and demean people, and was only for visitors, often women.”

The decision to use dogs to search humans rather than empty rooms prompted the former canine program coordinator to resign. Wayne Conrad was critical of the expenses related sending the dogs for training in Pennsylvania, and the use of less reliable breeds. Conrad was concerned about the likelihood of false positives. “The dogs are going to start alerting on people whose kids are smoking dope,” he said. “The next thing that’s going to come is the lawsuits.”

Alternative Plans

Jeffrey Beard is seeking alternatives to strip searches. He comes to the California prison system after more than 10 years in Pennsylvania corrections department. Pennsylvania has a rate of one drug or alcohol related death per 100,000 inmates, while California’s rate is eight times as high. Beard wants to send a message to people not to smuggle drugs into prisons. “If we don’t do this, we’re going to have people keep dying, we’re going to have continued violence in the prisons,” said Beard.

In 2013, 24 prisoners died from drug overdoses. Prisoners can easily spread disease through the use of intravenous needles. The same year, 69 inmates died from hepatitis C, largely spread as a result of IV drug use. Other states with large prison populations saw a similar rate of 1 death per 100,000 prisoners, including Texas, Florida, Ohio, Illinois and Georgia. On the other hand, Maryland had by far the worst death rate with 17 deaths per 100,000 inmates.

Only about 5% of visitors and employees receive a drug scan using ion scanners. Ion scanners are the same devices in airport screening for bomb detection. In Pennsylvania 20% of employees and 68% of visitors go through scanners before they enter the prison.

Stay Up to Date

The Kavinoky Law Firm employs the best and brightest so that we can fight for your freedom. Should you find yourself in need of a crime attorney or DUI attorney, call us first. Keep yourself out of the California prisons. Call anytime 24/7 – we don’t sleep – so you can. 1.800.NO.CUFFS is the number you need to remember.

Drug Cases

Posted by Brianna Wilkins on March 4, 2014

Drug cases in California are numerous and complicated. Each case requires individual attention from a criminal defense attorney. If you are facing an drug-related arrest in California you’re certainly not alone.

The War on Drugs

As can be seen by the high incarceration rate in this country, the War on Drugs is ineffective. All in all, increasingly more Americans fall into our nation’s war and find themselves lost. Local, state, and federal governments continue to pour billions of dollars into this war year after year. Sadly, in essence, this is all at the expense of individuals like you.

Fortunately, it’s possible to mount an aggressive defense to a California drug charge. In fact, the help of a Los Angeles defense lawyer is especially helpful. An knowledgeable California drug crime attorney from The Kavinoky Law Firm will thoroughly analyze your case. He or she will help determine the most effective strategy to challenge the case against you.

Drug Cases and Their Charges

Whether your California drug charge is possession or sales, it’s possible to mount a strong defense with the help of the right defense lawyer. Any charge involving methamphetamine, powder cocaine, crack or base cocaine, heroin, marijuana, or PCP, is still defensible. An great California drug defense lawyer has the skills and knowledge to aggressively fight any felony drug charges.

California defense attorney Darren Kavinoky and the attorneys of The Kavinoky Law Firm are well-aware of every aspect of fighting drug charges. Together with you, they will thoroughly review the evidence in your drug case and develop a cutting-edge strategy to fight the charges.

A California drug conviction carries extremely harsh punishment that often includes fines, asset forfeiture, registration as a narcotics offender and jail or prison time, so it’s essential that you act decisively by assembling a strong defense team.

Some California drug cases should go to trial. Whereas others may find favorable resolution with a skillfully negotiated plea bargain. In fact, plea bargains often result in alternative sentencing. Some forms of alternative sentencing include deferred entry of judgment (DEJ), Proposition 36, and drug court. These alternatives can be life-savers. Typically, alternative sentencing keeps the defendant out of incarceration.

Fight Your Case Alongside Your Attorney

A California drug charge can negatively impact every part of your life. Fortunately, you can aggressively fight your case with the help of a skilled attorney.

To learn more about strong defenses to felony drug charges, please contact The Kavinoky Law Firm today. Call 1.800.NO.CUFFS for a free consultation. Serving all of Los Angeles County, Orange County, San Luis Obispo and Ventura Counties and Riverside and San Diego Counties

Medical Marijuana Card in Hand. Now What?

Posted by Brianna Wilkins on January 7, 2014

Medical Marijuana Card in hand? Now what do you do? Under Proposition 215, also referred to as the California Compassionate Use Act, California became the first state to allow residents to legally smoke marijuana with a recommendation or approval from a California-licensed physician. Proposition 215 states that medical patients and designated primary caregivers may legally possess and cultivate marijuana if they have a medical marijuana card.

Medical Marijuana Card

If you have your medical marijuana card, you may be wondering how Proposition 215 will affect your day to day life. This includes where you’re legally allowed to smoke and how much marijuana you’re legally allowed to have in your possession. Also, many doubt a California medical marijuana card protects you from federal prosecution.

How Much Can I Possess or Grow?

According to Proposition 215, patients may have whatever amount of marijuana is necessary for their personal medical use. While some may think this entitles them to unlimited amounts of marijuana, this is not true.

Patients are likely to face legal consequences if they exceed the SB420 guidelines. The SB420, established on January 1, 2004, stipulates:

Patients may ‘legally’ have six mature or twelve immature plants* and
Up to half a pound of processed cannabis.

Though the amount can vary between cities and counties, the amount designated in SB420 is the minimum throughout the state. Also noteworthy here, is the caveat for rentals. Although it is legal to cultivate marijuana, most landlords prohibit the act. Before you attempt to grow your own marijuana, be sure it is okay in your place of residence.

Where Can I Get Medical Marijuana?

Although Proposition 215 doesn’t legalize sales, thousands of collectives and dispensaries throughout the state are now open. Currently, there are three types of shops where medical marijuana patients can purchase medical marijuana:

collectives,
co-operatives, and
dispensaries.

Collectives are groups of patients who pool their resources to provide medical marijuana to each other. Technically, these collectives should be non-profit and shouldn’t provide marijuana to outside patients. Co-operatives are non-profit and provide marijuana to patients in more of a shop-like setting. Dispensaries are for-profit entities that dispense marijuana. The main difference between a co-op and a dispensary is the tax-status of the entity.

Types of Medicine

Under Proposition 215, all parts of the cannabis plant fall under the provision. This includes seeds, buds, stalks, leaves, resin, and fibers. Anyone with a medical marijuana card in the state of California also has access to any medical marijuana and cannabis products. These products may be edibles, wax, hash, concentrated cannabis, and other marijuana bi-products.

Where Can I Smoke Medical Marijuana?

Typically, laws that govern cigarettes also apply to marijuana. Under state law, medical marijuana is only acceptable in certain places. It is illegal:

Within 1,000 feet of a school, recreation or youth center,
On a school bus,
In a moving vehicle or boat .
Marijuana of any type is illegal in the workplace and correctional facilities.

Employers still have the legal right to terminate an employee who tests positive for marijuana. Regardless of whether the patient has a medical marijuana card, he may face termination.

Additionally, medical marijuana patients are must smoke with discretion in public places. Additionally, many in the community suggest using only edibles in public spaces.

Federal Arrest Charges

In some cases, patients are not safe under the California law. Raids and arrests for those with cards are commonplace. Many face discrimination based on hearsay. Such claims include growing amounts the police believe to be excessive, or on account of neighbor’s complaints. Once patients receive charges, it is up to the courts to pass judgment on their medical claim.

Hiring a great criminal defense attorney in California is vital to protect your rights. Anyone with a medical marijuana card in the state of California can face federal charges. Since federal law trumps state law, the United States government has power over the state. Consequently, this means those in possession may receive a misdemeanor. So, we know those who cultivate can be charged with a felony. Medical marijuana patients are not protected while on federal land, and a California recommendation is not a defense in federal court.

State and Federal Law is Always Changing

Hire an attorney who knows what they’re doing.

About Darren Kavinoky and The Kavinoky Law Firm:

Darren Kavinoky receives recognition over and over for his commitment to clients and for being a top California defense lawyer. The Los Angeles Magazine repeatedly regards him as a Super Lawyer , and the American Trial Lawyers Association highlighted him as one of the Top 100 Trial Lawyers in California. Additionally, he is the legal analyst and special correspondent for the syndicated television program The Insider, and is a sought-after guest on shows that include Entertainment Tonight, Dr. Phil, NBC’s Today Show, and various programs on CNN and the Headline News Channel. Follow Darren on Twitter @DarrenKavinoky or www.DarrenKavinoky.com.

Cocaine

Posted by Brianna Wilkins on September 24, 2012

Cocaine is a Schedule II drug under California Health & Safety code 11055 (b) (6)), and it’s illegal to use, possess, sell, possess for sale, and manufacture. Violation of California’s cocaine laws can result in felony charges that carry significant prison time. Consequently, if you’re facing a California cocaine charge, you should have an experienced defense lawyer fighting for your freedom. Additionally, a skilled California drug lawyer from The Kavinoky Law Firm will do everything possible to protect you from the serious consequences of a cocaine charge.

Cocaine Penalties

What is especially relevant here is that sentencing changes based off of the crime. California’s determinate sentencing laws spell out a lower term, a middle term, and an upper term for felony offenses spelled out in months or years.

In fact, the punishment handed down after a cocaine conviction will be determined by the facts of your case and by aggravating and mitigating factors. These factors are circumstances that prompt the judge to treat you more harshly leniently. Mitigating factors are almost always very helpful in a case. You’re probably going to talk to your attorney about these following your arrest.

The following charges can be brought in a California cocaine case:

Section Number	Charge	Sentence
11350	Cocaine possession	16-2-3
11351	Possession for sale	2-3-4
11352	Sale (transport, import, furnish, administer, give away, etc.)	3-4-5
11379.6	Manufacture (process, prepare, etc.)	3-5-7 plus $50,000
11355	Agrees to sell, then sells another substance in lieu of	Misdemeanor or 16-2-3
11366.8a	Possess or use false compartment in vehicle to store or transport	Misdemeanor or 16-2-3
11366.8b	Design or construct false compartment in vehicle to store or transport	16-2-3
11401	Analog of cocaine (controlled substance) (i.e. substantially similar chemical structure or effect)
PC 182a1	Conspiracy to do any or all of the above (same as substantive charge)
11532	Loitering in a public place	Misdemeanor
	with the intent to commit a drug offense

Sentencing Enhancements

In addition to the charges in a California cocaine case, there are also numerous sentencing enhancements that can be filed that, if proven, can substantially increase your punishment. Another penalty can add include more time for weight enhancements, prior convictions, firearms, locations, and minors.

Therefore, if you’re facing a California drug charge, you could see substantial prison time. Additionally, there are other significant repercussions to this conviction. However, it’s entirely possible to aggressively fight your charge. Hence, you need a lawyer – and you need one quickly. Luckily, a skilled California criminal defense attorney from The Kavinoky Law Firm is ready to review your case and help you plan your next move. Please contact us today at 1.800.NO.CUFFS for a free consultation.

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Drug Charges in California – Substance Abuse Evaluation Included

Posted by Brianna Wilkins on May 4, 2012

Drug charges in California are serious for several reasons. Of course, there is the legal concern, but secondly, there is the emotional well-being of yourself or your loved ones.

Drug Charges – Substance Abuse Expert

Many California criminal offenses involve alcohol and/or drugs. However, not many defense lawyers include an evaluation by a qualified substance-abuse expert as part of their fee. The Kavinoky Law Firm is unique. We include an evaluation and court appearance by Dan Cronin from Assessment Intervention Resources (AIR). Of course, this is included in the retainer on cases involving alcohol or drugs.

Dan Cronin is AIR’s president and founder. He is an alcohol and drug counselor who worked with a psychologist and psychiatrist to develop a brilliant system. The three experts developed a unique care-management model for individuals with alcoholism and drug addiction.

This treatment method is incredibly effective. In fact, it is so effective that many organizations work with this system to help their members. These groups include the NHL, MLS and numerous public corporations in the United States and Canada. These organizations choose AIR as their care management provider for drug and alcohol problems.

Benefits of Evaluation

Of course, not everyone facing a California alcohol- or drug-related crime has a substance-abuse problem, but many do. An assessment by substance-abuse expert Dan Cronin provides tremendous benefit to the defense. This evaluation is beneficial for those who are suffering from substance abuse issues and those who aren’t.

For example, a driver arrested for California DUI who receives a substance-abuse evaluation that recommends treatment for alcoholism may be able to receive the alternative sentence of rehabilitation rather than jail.

In another scenario, a substance-abuse evaluation that concludes that someone facing a narcotics offense exercised poor judgment rather than having a drug problem may persuade the court to treat the defendant more leniently because a repeat offense appears to be less likely.

Hire Great Defense

The participation of a nationally renowned substance-abuse expert can make a tremendous contribution to your defense. Consequently, and The Kavinoky Law Firm includes an evaluation by substance-abuse expert, Dan Cronin. For more information about the role of a substance-abuse expert in a California criminal defense, please contact The Kavinoky Law Firm today. Reach out at 1-800-NO-CUFFS for a free consultation or to contact an attorney in your area.

PCP Carges and Prior Convictions

Posted by on May 4, 2012

California PCP charges are extremely serious, and there are a number of sentencing enhancements that can substantially increase your potential punishment. One possible sentencing enhancement that can be filed against you in a California PCP case is for prior convictions.

You can’t be punished for any type of sentencing enhancement, including prior convictions, unless you’re convicted of the underlying drug charges.

These are the possible sentencing enhancements that can be filed for prior convictions in a California PCP case:

Code Section Enhancement Punishment 11370.2.b New 182.1, 11378.5, 11379.5, 11379.6, 11380.5 or 11383 with prior 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5 or 11383 Add three years for each prior conviction PC 667.5b For each prior prison commitment
(unless after release the defendant remained free of both prison and felony convictions for five years)

Add one year
11366.5c Prior 11366.5a with new 11366.5a 2-3-4

In addition to sentencing enhancements for priors, the prosecutor in a California PCP case can also file enhancements for weight, firearms, locations and minors.

A California PCP case with sentencing enhancements for prior convictions can result in years in prison, so it’s critical to mount an aggressive defense to these charges. Knowledgeable California drug lawyers from The Kavinoky Law Firm will do everything possible to help you avoid the substantial repercussions of a PCP charge. Please contact a skilled California drug attorney today at 1.800.NO.CUFFS for a free consultation.

Cultivating marijuana

Posted by on May 4, 2012

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.

Minors and California Methamphetamine Cases

Posted by on May 4, 2012

Minors and California Methamphetamine Cases

Certain factors called sentencing enhancements can be added to California methamphetamine cases that can add years to the potential sentence. The involvement or presence of minors is one sentencing enhancement that can be filed in a meth case.

Because the repercussions of a California methamphetamine charge are so severe, it’s imperative to have a skilled attorney on your side. A knowledgeable California drug lawyer from The Kavinoky Law Firm thoroughly understands the complexities of a methamphetamine charge and will aggressively defend you against both the underlying charges and any sentencing enhancements.

A prosecutor must prove both the underlying drug charge and any sentencing enhancements beyond a reasonable doubt in order for you to receive the additional punishment. If you aren’t convicted of the underlying charge, you cannot be punished for the sentencing enhancement.

California sentencing guidelines spell out a lower term, a middle term and an upper term for certain offenses. The sentence that is meted out depends on aggravating and mitigating factors — information that prompts the judge to treat you more harshly or leniently — and the facts of each case. The sentence for each offense or enhancement is spelled out in months or years in prison.

The California Health and Safety Code allows for the following sentencing enhancements to be filed in methamphetamine cases involving minors:

* 11380 — Utilizing, soliciting, furnishing a minor re: methamphetamine — 3-6-9
* 11379.7 — Manufacturing methamphetamine (H&S 11379.6) or possession of precursor chemicals with intent to manufacture (H&S 11383) with a child under 16 present, add two years. If a child under 16 suffers great bodily injury during the commission of these offenses, add five years.

California methamphetamine charges involving minors can bring sentencing enhancements that add years to a prison commitment, so it’s critical to aggressively fight both the underlying drug charge and any enhancements.

An experienced California drug defense lawyer from The Kavinoky Law Firm can thoroughly review your methamphetamine case and help you determine your next step. Please contact a skilled defense attorney today at 1.800.NO.CUFFS for a free consultation.

Civil judicial forfeiture proceedings

Posted by on May 4, 2012

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.