Crack and Base Cocaine Charges Involving Minors

The punishment for a California crack or cocaine base conviction can be significantly increased by sentencing enhancements based on the involvement of minors. If you’ve been charged with a California cocaine base or crack charge with a sentencing enhancement alleging a minor was involved, you need a qualified drug defense lawyer on your side.

Knowledgeable California drug attorneys from The Kavinoky Law Firm can design a comprehensive defense strategy designed to protect you from the substantial repercussions of a cocaine base or crack charge and any accompanying sentencing enhancements.

You can’t be punished for any sentencing enhancement if the prosecutor is unable to convict you of the underlying narcotics charge. Also, the prosecutor must prove your guilt in the sentencing enhancement beyond a reasonable doubt, or you cannot receive additional punishment.

These are the sentencing enhancements that can be filed in a California cocaine base or crack case based on the alleged involvement of minors:

Code Section Enhancement Sentence 11353 Induce minor to possess, possess for sale, sell, etc. OR hire minor to sell, etc. OR sell, etc. to minor 3-6-9 11353.1(a)(1) If 11353 at church, youth center, day care center, pool, etc. Add one full year 11353.1(a)(2) If 11353 and on or near school Add two full years 11353.1(a)(3) If 11353 and minor four years or more younger than defendant Add 1-2-3 11370b If 11353 (sale) No probation, no suspension, no discretion PC 1170.72 If 11353, 11353.5, 11353.7, 11354, 11361, 11380, or 11353.1(a)(3), 11353.6, 11380. 1(a)(3) and minor is 11 years old or younger Circumstance in aggravation for sentencing

The allegation that a California crack or cocaine base offense involved a minor is a serious sentencing enhancement that can add years to your punishment if proven, so it’s essential to aggressively fight these allegations. Experienced California defense attorneys from The Kavinoky Law Firm are ready to review your case and prepare a comprehensive strategy. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Clandestine Labs and Locations

In California, a conviction for operating or contributing to a clandestine drug lab carries extremely harsh repercussions, and factors called sentencing enhancements can increase the consequences even more. One type of sentencing enhancement that can be filed in cases dealing with California clandestine labs is based on the location of the alleged drug manufacturing operation. If you’re charged with operating a clandestine lab, with or without sentencing enhancements, a knowledgeable California defense attorneys from The Kavinoky Law Firm has the skills needed to aggressively fight for your rights.

Most sentencing enhancements in California drug cases carry the same constitutional protections that apply to the underlying drug charges – your guilt must be proven beyond a reasonable doubt or you cannot receive additional punishment. Also, you cannot be punished for a sentencing enhancement if you aren’t convicted of the underlying drug charge.

Many California felony charges and sentencing enhancements are punishable by a range of prison terms referred to as the lower, the middle and the upper term. The sentence that the judge hands down will depend on aggravating and mitigating factors – issues that prompt the court to treat you more harshly or leniently.

These are the possible sentencing enhancements based on location that can be filed in a California clandestine lab case:

Code Section Enhancement Sentence 11366.5a Rents or makes available for manufacture Misdemeanor or 16-2-3 11366.6 Utilizing fortified location to manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11353.6 Manufacture on school grounds or within 1,000 feet of school (in a public place or place legally open to minors) when school was in session or when children using the school facility Add 3-4-5 11380.1a1 If 11380 and offense occurs upon ground of playground, church, child care, pool, when open or when minors using facility Add one year

A sentencing enhancement based on location can add many years to an already substantial prison sentence, so it’s in your best interests to aggressively fight both the clandestine lab charges and any sentencing enhancements.

Knowledgeable California defense attorneys from The Kavinoky Law Firm are well-versed in aggressive defenses to clandestine lab charges. Please contact a skilled California drug lawyer today at 1.800.NO.CUFFS for a free consultation.

California not only prosecutes those who use, sell, transport or cultivate marijuana but also prosecutes those who permit such activities on their property. Engaging in the opening, maintaining, renting or leasing of a place used for marijuana-related activities or selling items that will be used to unlawfully manufacture, process or prepare marijuana will be prosecuted as either misdemeanor or felony offenses at the prosecutor’s discretion. An individual who is accused of any of these offenses should therefore immediately contact a skilled California drug crime defense attorney who knows how to persuade a prosecutor that a misdemeanor filing is appropriate and who also knows how to then persuade a judge to further reduce or dismiss that charge.

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using marijuana faces either a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison. In order to convict an individual of this offense, the prosecutor must prove that he or she opened or maintained a place and, in doing so, had the specific intent to sell, give away or use marijuana on a repetitive or continuous basis. Because this law deals with “using” marijuana, it isn’t necessary that marijuana be sold on the premises, as an individual accused of this offense can be so charged by simply providing a place for marijuana users to gather.

A single or isolated instance of conduct that is prohibited under this law will not suffice for prosecution under this charge, as “maintaining” a place necessarily implies a continuous or ongoing activity that takes place on the property. Similarly, this law does not apply to repeated solo use in one’s own home.

Every person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, that property for the purpose of unlawfully manufacturing, storing, or distributing marijuana for sale or distribution faces either a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison. An individual who is convicted of this offense for the second time faces an automatic felony, punishable by two, three or four years in the state prison. In order to convict the accused of this offense, the prosecutor must prove that the owner had knowledge that the manufacturing of the marijuana was for the purpose of selling or distributing it – absent that knowledge, one can’t be convicted of this offense for simply making a property available to manufacture marijuana.

In addition to the jail or prison terms that may accompany these offenses, every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away marijuana will be declared a “nuisance,” and will be subject to forfeiture.

Any retailer or wholesaler who sells marijuana or a laboratory apparatus or device with the knowledge or intent that it will be used to unlawfully manufacture, compound, convert, process, or prepare marijuana for unlawful sale or distribution faces a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison and a maximum fine of $25,000.

Because the stakes are so high, it is mandatory that an individual accused of one of these offenses hires an attorney who is qualified to defend against these charges. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered everything related to California marijuana defense and know the most compelling arguments to have their clients’ charges either reduced in an effort to provide their clients with the opportunity to receive drug treatment as an alternative sentencing option to jail or prison or dismissed entirely. To learn more, contact these unparalleled attorneys today for a free consultation.

Powder Cocaine Charges with Weight Enhancements

California cocaine charges are extremely serious allegations that carry substantial punishment, and the repercussions can be made even harsher by sentencing enhancements — factors that prompt the court to impose additional consequences.

One possible sentencing enhancement in a California cocaine case is a weight enhancement. If you’re facing a California cocaine charge with a weight enhancement, you need a qualified drug defense lawyer fighting your case. Experienced California drug attorneys from The Kavinoky Law Firm is ready to review your case and build a strong defense strategy.

The prosecutor must prove your guilt in both the underlying cocaine charge and the weight enhancement in order to prompt the court to impose the additional punishment. You cannot be convicted of, or punished for, the weight enhancement without being found guilty of the underlying drug charge.

The following weight enhancements can be filed in a California cocaine case:

Code Section Weight Sentence 1203.073b1 Two ounces of a substance containing cocaine or one ounce of pure cocaine No probation, judge has discretion 11370.4a1 More than one kilogram (approx. 2.2 lbs) Add three years 11370.4a2 More than four kilo Add five years 11370.4a3 More than 10 kilos Add 10 years 11370.4a4 More than 20 kilos Add 15 years 11370.4a5 More than 40 kilos Add 20 years 11370.4a6 More than 80 kilos Add 25 years

Fortunately, experienced California defense attorneys can aggressively defend both a cocaine charge and the accompanying weight enhancement. One possible defense strategy that your defense attorney may employ is a motion to suppress evidence. If the drug evidence against you wasn’t properly obtained, it cannot be used to convict you.

In some California cocaine cases, you may be eligible for alternative sentencing, which may include a deferred entry of judgment (DEJ), Proposition 36, or drug court. Your defense lawyer can review your case and determine whether any of these sentencing alternatives may be an option in your California cocaine case.

If you’re facing a California cocaine charge with weight enhancements, you need a knowledgeable defense lawyer aggressively fighting for your freedom. A skilled California drug lawyer from The Kavinoky Law Firm can review your cocaine case and develop a comprehensive defense strategy anywhere in the state. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Motion to recover evidence

Medical marijuana cases are unlike other marijuana-related offenses, in that, if the accused can prove that the marijuana was legitimately possessed or cultivated for medicinal purposes, its possession, use or cultivation will be excused. If this is established, it may be possible for the patient and/or his or her primary caregiver to recover the marijuana that was therefore improperly seized or to recover damages to cover the expenses to replant or repurchase the drug. Retaining an experienced attorney is the key to prevailing on this type of motion.

Motions for a return of property may be filed if no charges were ultimately filed following one’s arrest for possessing or cultivating marijuana, if the accused succeeded in having his or her charges dismissed during a pre-trial or Mower hearing or if he or she was acquitted following a judge or jury trial. This type of motion would be to recover one’s improperly seized marijuana, whether the marijuana was confiscated pursuant to a warrant or not.

Alternatively, the accused could initiate a civil lawsuit to recover monetary damages in the event that the seized marijuana had spoiled or otherwise been harmed or improperly destroyed by the police. The trusted and compassionate criminal attorneys at The Kavinoky Law Firm may be able to refer a skilled civil attorney should the accused choose to pursue this approach.

Another similar type of criminal motion that an individual who has been cleared of the legal charges associated with his medical marijuana possession or cultivation may raise is a motion for a determination of factual innocence. If it can be proven that no reasonable cause existed to believe that the accused committed the offense for which he or she was arrested, he or she may be able to have the court declare him or her factually innocent of the charges, which will result in the sealing and subsequent destruction of the arrest report and all related records.

Motions for the return of property and for a declaration of factual innocence are regulated by very technical and specific laws which must be strictly adhered to in order to prevail and have one’s marijuana returned. Because of this fact, it is imperative that an individual seeking return of his or her medical marijuana contacts one of the experienced attorneys at The Kavinoky Law Firm who will ensure that all procedures and filing requirements are properly met in an effort to have one’s property returned as quickly and inexpensively as possible. They have law offices throughout California, including several in and around the Los Angeles area, making them conveniently located for anyone in need of their exceptional legal advice, representation or other services. To learn more about how to successfully have one’s medical marijuana returned or about how to file a declaration of factual innocence, contact these outstanding attorneys today for a free consultation.

Possession of marijuana for sale – physical, constructive and joint possession

Possession of marijuana for sale, in California, is a felony that carries serious penalties. While there are a number of defenses that are applicable to this crime, only a skilled criminal defense lawyer who specializes in California drug defense will be prepared and qualified to present them in an effective manner.

Possession of marijuana for sale has three “elements” or facts that must be proven to convict the accused. The accused must (1) possess the marijuana, (2) have the intent to sell the marijuana and (3) have knowledge of both its presence and illegal character. “Possession” in and of itself is a gray area, as there are several types of possession that law enforcement and the prosecution can use to prove this offense. The accused can have physical (otherwise known as actual) possession, constructive possession or joint possession of the drug and any of these will be sufficient to prove the accused guilty. This is one of the reasons why an experienced criminal attorney who regularly practices this area of law is so invaluable, as he or she knows how to rebut this issue.

Physical or actual possession means that the accused individual knowingly exercised direct physical control over the drug – that he or she actually had the marijuana on his or her person. This type of possession is probably the most difficult to defend, as people tend to know what items they carry with them. However, medical marijuana use, temporary possession for disposal and illegal search and seizure are all defenses that may be applicable to this type of possession.

Constructive possession refers to situations where the accused individual didn’t have actual or physical control over the drug but instead knowingly exercised control over or had the right to control the marijuana either directly or through another person or persons. Constructive possession, along with physical and joint possession, may be proven through circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it). A specific example demonstrating constructive possession (though not specific to a possession for sale case) lies in a case where an individual was found to have exercised control over marijuana because he was found on a remote parcel of land where marijuana plants were being grown, where there was evidence that the plants had been cared for on a regular basis and where the owner of the property had been hospitalized during the time of the arrest. Lack of knowledge, entrapment and the above defenses are most likely to be argued when constructive possession is alleged.

Joint possession will apply in situations where two or more people may be guilty of possessing marijuana with the intent to sell it. Joint control or possession will be inferred under a variety of circumstances. An example includes a case where the defendant was found barefoot in the codefendant’s house where drugs were found, that his suit and shoes were found in a closet and that there were traces of marijuana in his shirt and pants pockets. This circumstantial evidence was enough to support the belief that he and the codefendant jointly occupied the premises and had knowledge of the presence of marijuana and of its narcotic character, that they both had access to the home and that they shared joint control of the home. Lack of knowledge, medical marijuana use, temporary possession for disposal and illegal search and seizure will be the defenses most likely to apply to joint possession.

The outstanding attorneys at The Kavinoky Law Firm have mastered these defenses, as well as a variety of others, that are applicable to “possession of marijuana for sale” offenses. They excel in articulating them to judges and jurors in ways that successfully tell their client’s side of the story. With law offices in Los Angeles and throughout the state, they are easily accessible for anyone in need of an exceptional California drug defense attorney. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.

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• Supreme Court Ruling

Retroactive Sentencing Guidelines in Crack Cocaine Cases

Thousands of people convicted of crack cocaine offenses may be eligible for retroactive sentence reductions because of revised guidelines by the U.S. Sentencing Commission. An estimated 19,000 defendants will be impacted by these retroactive changes, which took effect March 3.

However, a sentence reduction isn’t automatic – it must be ordered by a federal judge. To find out whether retroactive changes in crack cocaine sentencing guidelines apply to your case, contact an experienced lawyer from The Kavinoky Law Firm.

Not all crack cocaine defendants will be eligible for a lower sentence. A federal sentencing judge will decide whether the offender is eligible for a lower sentence and how much the sentence will be reduced.

A federal judge determining whether to reduce a crack cocaine offender’s sentence will weigh numerous factors, including whether a reduced sentence will endanger the public.

The impact of these revised guidelines is expected to occur incrementally over the next 30 years, because many crack cocaine offenders will still be required under federal law to serve mandatory five-, ten-, or 20-year sentences even under the revised guidelines.

These latest revisions to the crack cocaine sentencing guidelines are part of an ongoing effort to equalize the punishment for powder and crack cocaine offenses. In its 2002 report to Congress titled “Cocaine and Federal Sentencing Policy,” the U.S. Sentencing Commission found that the original sentencing guidelines for crack cocaine exaggerated the relative harmfulness of the drug, were too broad and disproportionately targeted lower-level offenders, were disproportionate to the seriousness of the offense, and unfairly impacted minorities.

Between 1995 and 2007, approximately 56,000 defendants were sentenced under the harsher crack cocaine guidelines despite efforts to narrow the disparity between sentences for powder and crack cocaine.

If you or someone you care about was sentenced for a crack cocaine offense during that time period, it may be possible to have the sentence reduced. To learn more about retroactive sentencing guidelines in crack cocaine cases, contact a knowledgeable California lawyer from The Kavinoky Law Firm today for a free consultation.

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As any California criminal lawyer will tell you, it is difficult to categorically say whether or not drug treatment can be used as an alternative sentence to prison time. Suspending a prison sentence in favor of rehabilitation, such as drug treatment for a drug offense or alcohol treatment for a DUI, is often within the judge/s sentencing discretion. This is especially the case when the crime charged is a misdemeanor, known sometimes as a “wobbler,”charged as a felony that could be reduced to a misdemeanor. However, several drug-related crimes are straight felonies in California, which complicates the judge’s ability to issue alternative sentences.

In California, proposition 36, called the Substance Abuse and Crime Prevention Act, sets out the ways that defendants convicted of non-violent drug offenses can qualify for a probationary sentence instead of prison time. Prop. 36, which were passed in 2000, are only available to those convicted of some non-violent drug possession crimes. So straight felony drug convictions such as possessing cocaine, heroin, or opiates, cultivation of marijuana, and sales or transportation related drug crimes are immediately not eligible. Similarly, California penal code stipulates that anyone with an incarceration in the last five years, anyone also found guilty of a non-drug related crime at the same time, any defendant who refuses treatment, or anyone who already has two separate drug convictions or participated in Prop. 36 twice already are ineligible for Proposition 36.

So barring these circumstances, you have the option of using drug treatment as an alternative to jail or prison time. But this still depends on what your California criminal lawyer can work out with the prosecution and the judge. Assuming you do qualify, most judges in California tend to prioritize treatment and rehabilitation over jail time and are very amenable to suspending an incarceration sentence if the defendant seems to be in the right state of mind and his or her lawyer makes a strong case that it was an isolated event.

If you are approved for Prop. 36 treatments, several restrictions are set and if you fail to meet any the agreed-upon requirements, your suspended sentence can be reinstated. You will have to return to court upon failing to complete, and the judge will decide how to deal with a new sentence.

Along the same lines, it is sometimes possible to have a felony conviction reduced to a misdemeanor, which carries several benefits for the defendant. It is important to discuss this and all other options with your California criminal lawyer before beginning any course of action, as sometimes one will preclude the others. However, regardless of which alternate paths you opt for, qualifying for a reduced sentence in lieu of jail time can be a life-saving opportunity.

The law of forfeiture is complex, and is rooted in ancient theories about property itself being “guilty.” Due to these odd theories, modern forfeiture laws make it fairly simple for the government to go after someone’s assets. One need not be convicted or charged with a crime before his or her property is seized and forfeited. In situations involving drugs all the government needs to do is provide some reasonable connection between the money and the drugs.

It takes an experienced lawyer to handle a forfeiture case. Forfeiture cases involve the ability to trace a connection between money and an illegal substance. It cannot always be certain that there is a connection, but often it is not difficult to come up with one that sounds reasonable. It takes true skill and sophistication to defeat the government’s attempt to force forfeiture.

There are many items that are eligible for forfeiture. The long and extensive list includes any cars, boats, airplanes, or other vehicle which is used or intended for use, as a container of any illegal substances or equipment, and raw material used in the making of the illegal substances. Of course, the illegal substances and the raw material required for their production are also subject to forfeiture.

In the area of drug-dealing, if the government believes that your car, boat, or airplane was used to facilitate the manufacture of, possession for sale, or sale of specific amounts of different drugs, that vehicle will be seized and forfeited. The laws are harsh, but they can be fought with some hard work by a qualified attorney.

All books, records, research products and materials, and any tapes or data, and devices that contain data that were used or intended for use in connection with the illegal substances may be seized.

All money, stocks, or any other thing of value that is furnished or intended to be furnished, by any person in exchange for controlled substances may be seized. These things may be seized so long as they can be traced back to an exchange for controlled substances.

Real property, including houses, is also subject to forfeiture. But, because more than one person generally lives in a house, the property will not be seized for forfeiture if it is used as a family residence or for another lawful purpose. Also, if two or more individuals own a home, so long as one of the individuals had no knowledge of the criminal activity, the property will not be forfeited.

To protect your property rights, it is best to get in touch with an experienced attorney as soon as you have knowledge of any investigative actions concerning your property. The process for forfeiture can begin before criminal charges are even filed against you. Act fast to try to save yourself from having to file appeals which can take years. The knowledgeable criminal defense lawyers of the Kavinoky Law Firm are unsurpassed in achieving the best possible results for their clients. Call them today for a free consultation.

San Francisco County Drug Charge

A San Francisco County 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.

If you’ve been arrested on a San Francisco County drug charge, you’re certainly not alone. Fortunately, it’s possible to mount an aggressive defense to a San Francisco County drug charge with the help of a skilled criminal defense lawyer. Our San Francisco County drug defense attorneys are well-versed in every aspect of fighting drug charges, and will thoroughly review the evidence in your drug case and develop a cutting-edge strategy to fight the charges.

Though drug laws are similar throughout California, there are different nuances within counties, court houses, and judges that may be used in your favor. Our team approach ensures that every drug case is managed by an entire team of local and knowledgeable San Francisco County attorneys. We will take care of everything.

Whether your San Francisco County drug charge is possession, sales or any other charge involving methamphetamine, powder cocaine, crack or base cocaine, heroin, marijuana, or PCP, it’s possible to mount a strong defense with the help of the right defense lawyer.

Some San Francisco County drug cases should be taken to trial, while others may be favorably resolved with a skillfully negotiated plea bargain that may result in alternative sentencing. Some forms of alternative sentencing that may be available to help you avoid incarceration in a San Francisco County drug case include deferred entry of judgment (DEJ), Proposition 36, and drug court.

A San Francisco County drug charge can negatively impact every part of your life, but fortunately you can aggressively fight your case with the help of a skilled attorney. If you’ve already been convicted of a drug charge, find out how we can get your criminal record expunged, so you that you may move on with your life without a blemish on your records. To learn more about strong defenses to felony drug charges, please contact an experienced San Francisco County defense attorney from The Kavinoky Law Firm today at 1.800.662.8337 for a free consultation.

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