Prop 36

Proposition 36 is a voter-approved initiative which mandates drug treatment instead of jail for certain first- and second-time low-level drug offenses. Proposition 36 is one form of alternative sentencing that may be an option in your California drug case. A skilled California drug lawyer from The Kavinoky Law Firm can review your case and help you to determine whether Prop. 36 may be an option.

Prop. 36 is intended for non-violent, low-level California drug offenders. If you’re facing a manufacturing or possession for sale charge, you’re ineligible for Prop. 36. Also, if you have been convicted of a serious or violent felony — a strike — you cannot participate in Prop. 36 unless you have been out of prison for five years or more and have no felonies or misdemeanors that involve the threat of violence during that time period.

If you’re accepted into Proposition 36, you’ll have to attend a court-approved treatment program that will include counseling, Narcotics Anonymous meetings, and other activities.

If you enroll in Prop. 36 and then fail to complete the treatment program, you’ll have to return to court and be sentenced like any other drug offender. Therefore, it’s extremely important to ensure that you can commit to any drug treatment program that accepts you if you hope to avoid jail time and the other consequences of a California drug conviction.

Participation in Proposition 36 has literally transformed the lives of tens of thousands of California drug defendants who might otherwise had to serve jail time. Successfully completing a drug treatment program allows many individuals to address their substance-abuse issues at last and become productive members of society.

Not everyone is eligible for Prop. 36 after a drug arrest in California, but for those who are, the experience can literally change their lives. Your defense lawyer will review your case to determine whether you may be eligible for Proposition 36 diversion.

A California drug charge carries serious consequences, but Prop. 36 or another form of alternative sentencing may be an option. To learn more about Proposition 36, please contact a knowledgeable California drug lawyer from The Kavinoky Law Firm at 1.800.NO.CUFFS for a free consultation.

Diversion for Marijuana Charges in California – Penal Code PC 1000

Diversion is a California sentencing option that allows a first time marijuana offender (under certain circumstances) to avoid a jail or prison sentence and to participate in a drug education, treatment and/or rehabilitation program instead. This program only applies to a few marijuana offenses and has specific eligibility requirements, but if it is successfully completed, it allows the accused to ultimately have his or her charges dismissed. An experienced California marijuana criminal attorney is the key to seeing that this type of alternative sentencing option is offered to the accused.

Diversion (codified under California’s Penal Code section 1000) permits an individual who has been convicted of possessing marijuana for personal use, who has been convicted of cultivating marijuana for personal use (both as first time offenders) or an individual who has been convicted of possessing not more than one ounce of marijuana (other than concentrated cannabis) while driving for his or her fourth time in a two-year period to participate in a series of drug education classes in lieu of serving a jail or prison sentence. The accused may request to be referred to any program in any county, so long as it is court approved.

Diversion applies to an individual who meets the above requirements and who has no prior drug offense convictions, whose pending charge didn’t involve violence or threatened violence, whose prior criminal record doesn’t indicate that probation or parole has previously been revoked without being successfully completed, whose prior criminal record doesn’t indicate that he or she had participated in diversion within the last five years and who has no prior felony convictions within the last five years. If the prosecuting attorney believes that the accused meets these requirements, he or she will recommend that the accused participate in diversion, thereby entitling the accused to a deferred entry of judgment.

A “deferred entry of judgment” means that the defendant will be required to enter a guilty plea to the charged offense but will not be sentenced until he or she is allowed the opportunity to successfully complete the diversion program. As a part of this program, the accused will be subject to random drug testing and, if he or she tests positive for marijuana or other drug use, he or she will likely be removed from the program and sentenced to the charge to which he or she already plead guilty. An individual may face the same consequence if the judge, probation department or prosecuting attorney feels that he or she is performing unsatisfactorily in the program, that he or she is not benefiting from drug education, treatment or rehabilitation, that he or she has been convicted of misdemeanor that reflects his or her propensity for violence, has been convicted of a felony or has engaged in criminal conduct that renders him or her unsuitable for deferred entry of judgment. If, however, those same parties find that the accused successfully completed the diversion program, the judge (no sooner than 18 months and no later than three years from the individual’s referral date) will vacate the plea and dismiss the charges against him or her.

Diversion offers an eligible individual a great opportunity to avoid a jail or prison sentence that may otherwise be imposed in connection with his or her marijuana charge. Even if one isn’t charged with one of the offenses that qualifies for the diversion program, the skilled California marijuana criminal defense lawyers at The Kavinoky Law Firm may be able to negotiate a plea bargain that allows his or her client to participate in diversion by having the prosecutor agree to charge the accused with an eligible offense. To learn more about the requirements, advantages and disadvantages of diversion or about other alternative sentencing options, contact these exceptional attorneys today for a free consultation.

Possession of marijuana for sale – illegal search and seizure

Regardless of how overwhelming and incriminating the evidence appears in a possession of marijuana for sale case – of how much marijuana was possessed, of how much paraphernalia was uncovered or how much cash was collected by the arresting law enforcement agency, if the evidence was discovered and confiscated as the result of an illegal search and seizure, a qualified criminal defense lawyer will, at the very least, be able to have it excluded from his or her client’s case and may even be able to convince a judge to dismiss his or her client’s case altogether. The key lies in hiring an attorney who excels in uncovering, forming and articulating this outstanding defense.

Illegal searches and seizures are primarily addressed in the Fourth Amendment to the United States Constitution, which is why it is necessary for an attorney who will employ this defense to be well versed in both California and federal law. With respect to a possession of marijuana for sale case, a “search” refers to the inspection of the accused, of his or her surroundings or of his or her property that the officer undertakes in his or her effort to collect evidence of the offense. A “seizure” typically refers to the subsequent situation where the officer takes the accused and/or any marijuana or other contraband into police custody. The government has set limits about what types of searches and seizures are reasonable and what types are not, mainly focusing on the issue of one’s “reasonable expectation of privacy”.

It should be noted that a search necessarily involves an invasion of one’s privacy – if there is no invasion, a search may not have even taken place. For example, if an individual is openly cultivating marijuana in his or her backyard and has his or her scales and other paraphernalia out with it, visible by anyone on the street (which would include a police officer) or to anyone flying over his or her yard, a search for the drug would be unnecessary, since there would not be a “reasonable” expectation of privacy in this type of situation. However, if all of this evidence was located in an enclosed area, not visible to anyone not inside the area, and law enforcement had to enter the structure to see it, a search would have taken place. Searches and seizures are legal (with and without search warrants), but only if law enforcement can justify their actions given the circumstances that surrounded the charged event.

Searches that are executed pursuant to a pre-approved search warrant are generally considered reasonable as long as the search adhered to the requirements listed in the warrant. For example, if the police had reason to believe that the marijuana being possessed for sale was located in the suspect’s car, the warrant would give them the authority to look in the garage where the car was being stored, but would not give them the right to open a box that was also being stored in the garage. The general rule is that evidence that is collected during a proper search may be properly seized if related to the alleged offense. However, if it is proven that the warrant was invalid – for example, the judge relied on false or misleading statements by the police) – then the subsequent seizure would also be invalid.

Because possession for sale cases frequently involves constructive or joint possession of the marijuana, consent may also become an issue with respect to a legal or illegal search, which is another area that a savvy attorney would explore in an effort to argue that there was an illegal search and seizure with respect to his or her client and the client’s property.

To learn more about how an illegal search and seizure (and a variety of other defenses) can result in a dismissal of a possession of marijuana for sale charge, contact the exceptional criminal attorneys at The Kavinoky Law Firm today for a free consultation.

Cocaine Base or Crack and Locations

A California crack or cocaine base conviction can bring a lengthy prison sentence, and that punishment can be increased significantly by sentencing enhancements based on the location of the alleged offense.

If you’re facing a California cocaine base or crack charge with a location sentencing enhancement, it’s critical to have a knowledgeable drug defense lawyer fighting for your rights. A skilled California drug attorney from The Kavinoky Law Firm is ready to analyze your case and build an aggressive defense strategy.

A crack or cocaine base location sentencing enhancement stems from either maintaining a place to commit drug offenses or the proximity of the alleged offense to a school, park, beach or other location where minors congregate.

You cannot be punished for a sentencing enhancement if you are not convicted of the underlying narcotics offense. The prosecutor in your cocaine base or crack case must prove both the sentencing enhancement and the underlying drug charge beyond a reasonable doubt in order for you to receive additional punishment.

Like many felony drug offenses, many sentencing enhancements are punishable by three possible prison terms — the lower, the middle and the upper term. The judge will determine the sentence if convicted based on aggravating and mitigating factors — issues that prompt the court to treat you more harshly or leniently.

These are the sentencing enhancements that can be filed based on location in a California crack or cocaine base prosecution:

Code Section Enhancement Sentence 11353.6 Possess for sale, sell or manufacture upon grounds of school or within 1,000 feet of school (in a public place, or place legally open to minors) while school was in session or when children using facility Add 3-4-5 11366 Maintain a place for sale or use Misdemeanor or 16-2-3 11366.5a Rents or makes available for manufacture or distribution Misdemeanor or 16-2-3 11366.6 Utilizing fortified location to possess for sale, sell, or manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11352b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or oceanfront beach if drug-free zone (includes library, pool, youth center) Add one year

A crack or cocaine base conviction with location sentencing enhancements can bring substantial prison time, so it’s crucial that you have a skilled defense lawyer on your side fighting for your freedom. An experienced California drug defense attorney from The Kavinoky Law Firm has the knowledge needed to aggressively fight your crack or cocaine base charge and any sentencing enhancements. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Clandestine Drug Labs

As drug labs have become more and more common, California lawmakers have enacted numerous statutes to criminalize nearly every aspect of manufacturing drugs, even activities that seem fairly benign. If you’ve been charged with any California criminal offense related to operating a clandestine lab, you need a skilled defense lawyer on your side. Knowledgeable California drug lawyers from The Kavinoky Law Firm is well-versed in every aspect of fighting charges involving clandestine drug labs.

Although California’s clandestine lab drug laws cover the manufacture of many different types of drugs, methamphetamine is the most commonly produced drug at these sites. Methamphetamine can be produced almost anywhere by individuals without extensive knowledge about chemistry.

The California Health & Safety Code, which governs most drug offenses, contains numerous charges that can be filed in a clandestine lab case. The possible charges in a California drug lab case include manufacturing, possession of precursor chemicals with intent to manufacture, disposal of hazardous substances by a manufacturer of controlled substances, and many others.

In addition to the many charges that can be brought in a clandestine lab case, there are a number of sentencing enhancements that can increase the potential penalties even more. These include enhancements for weight, prior convictions, firearms, locations and minors.

You can also face charges and sentencing enhancements for the specific drug alleged to have been manufactured, whether it’s methamphetamine, crack cocaine, PCP, synthetic heroin, or so-called “club drugs” like GHB or Ecstasy. You can also be forced to pay fines and civil penalties related to the cleanup of drug labs.

Fortunately, it’s possible to fight these charges and win. Experienced California drug lawyers from The Kavinoky Law Firm will fight aggressively for your rights and freedom in your clandestine drug lab case. Please contact a top California drug lawyer today at 1-877-4-NO-CUFFS for a free consultation.

California Marijuana Laws – Drug Paraphernalia

Drug paraphernalia consists of a wide variety of items that are considered illegal in California if they are designed to aid in any activity related to the illegal use, distribution or transportation of marijuana. If found guilty of the crimes related to marijuana paraphernalia, the accused faces a misdemeanor, punishable by up to a year in county jail, a maximum $1,000 fine and a requirement that the individual forfeits the seized paraphernalia. In order to avoid these penalties, it is important to consult with an attorney who knows and understands the different defenses that apply to California’s drug laws.

Drug paraphernalia, with respect to marijuana, refers to all equipment, products and materials that are designed for use in planting, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, concealing, ingesting, inhaling, or otherwise introducing marijuana into the human body. Because of the wide variety of products that meet this definition, the following is only an example: scales and balances that weigh or measure marijuana, separation gins and sifters used to remove twigs and seeds from (or that otherwise clean or refine) marijuana, containers used to package or store marijuana and objects used to ingest or inhale marijuana, such as pipes, bongs and roach clips.

In order to determine whether an object is “drug paraphernalia,” the court will consider statements by the owner of the object concerning its use, any prior drug-related convictions of the accused, any instructions that were provided with the object concerning its use, how the object was displayed for sale and expert testimony concerning its use.

An individual who delivers, furnishes, or transfers, possesses with the intent to deliver, furnish, or transfer, or manufactures with the intent to deliver, furnish, or transfer, drug paraphernalia, knowing (or under circumstances where one reasonably should know), that it will be used to plant, cultivate, grow, harvest, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, conceal, ingest, inhale, or otherwise introduce marijuana into the human body will be charged with a misdemeanor, punishable by up to six months in jail and a maximum $1,000 fine. An individual 18 or older who does any of the above knowing that the recipient of the paraphernalia is under 18 and at least three years younger than he or she will be charged with a misdemeanor, punishable by up to one year in the county jail and the same maximum fine. A business owner found guilty of any of these activities who holds a California business or liquor license issued by the city, county and/or state may also lose that license. All seized paraphernalia will additionally be forfeited to the state.

It should also be noted that an individual who owns, operates or maintains a business where drug paraphernalia is kept, displayed, sold, furnished, transferred or given away (for legal substances) must keep it in a separate room, inaccessible to minors who are unaccompanied by their parents. Violating this law will not invite criminal penalties but may provide grounds for the revocation of one’s license.

California Marijuana and Drug Defense Lawyer

The outstanding criminal attorneys at The Kavinoky Law Firm specialize in everything related to California drug crime defense. They have mastered the defenses that are available to an individual charged with participating in an illegal marijuana paraphernalia activity and are dedicated to having their client’s charges either reduced or dismissed. With several law offices in Los Angeles and others located throughout California, they are easily accessible to anyone in need of a vigorous defense. For the most trusted legal advice and exceptional representation, contact them today for a free consultation.

The Role of a Substance Abuse Expert

If you’re like many defandants in California drug case, you may worry that the charges that you face will bring you a lengthy jail sentence. Fortunately it may be possible to obtain alternative sentencing that allows you to avoid incarceration. An evaluation from a qualified substance abuse expert may help you to obtain alternative sentencing in a California drug case. The CA drug lawyers to the Kavinoky Law Firm include an evaluation by a top substance abuse expert in its retainer for all cases involving drugs or alcohol.

Not every California drug defendant wants to enter a treatment program, but many could benefit enormously from rehabilitation. A knowledgeable substance abuse expert can determine during an evaluation whether drug treatment is indicated and what type of program would provide the greatest benefit.

The substance abuse expert can then make a recommendation to the court in your California drug case about what kind of treatment may benefit you. This may help persuade the court to grant you a sentence alternative and avoid a jail sentence.

Three types of alternative sentencing that may be available in your California drug case are a deferred entry of judgment, or DEJ; Prop 36; or drug court. Each of these options has their own requirements and benefits, and your CA drug lawyer can help you determine your eligibility.

A qualified substance abuse expert may make the difference in persuading the court to grant you alternative sentencing instead of jail time. To learn more about the role of a top substance abuse expert in a narcotics case, please contact a skilled California drug lawyer from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

California Marijuana Laws – Federal laws and rulings regarding medical marijuana

Although California has enacted legislation that permits medicinal marijuana use under specific circumstances, the federal government has done no such thing. In fact, federal laws and rulings continue to maintain that marijuana drugs have no medical value and are among the most dangerous drugs in our society. Federal charges relating to marijuana use, cultivation and distribution, when prosecuted, carry severe penalties. As a result of these consequences, it is critical that an individual charged with any of these activities immediately contacts a skilled criminal defense lawyer who has mastered this field of law and who understands all of the issues and defenses that coincide with the federal rules relating to medical marijuana use.

Marijuana is listed as a “Schedule I” drug, along with other “hard narcotics,” in the US Controlled Substances Act, which means federal law prohibits its cultivation, possession, sale or use for any purpose, including for therapeutic medical treatment. Even though this is the case, it should be noted that federal charges are typically filed only in large cases where commercial distribution is suspected. Nonetheless, when these charges are filed, only an experienced criminal attorney who specializes in this technical field should be retained.

Over the last decade, a number of Supreme Court cases have been decided that continue to hold medical marijuana use, growth and distribution illegal. Back in 2000, there were two cases that held that physicians have a First Amendment right to recommend that their patients use marijuana for medicinal purposes, but that they may not aid or abet their patients in actually obtaining the drug. The doctor may discuss the pros and cons of medical marijuana with his or her patient and may even issue a written or oral recommendation to use marijuana within a bona fide doctor-patient relationship without fear of legal reprisal. However, the doctor may not actually prescribe or dispense marijuana to a patient or recommend it with the specific intent that the patient will use the recommendation like a prescription to obtain the drug.

Medical marijuana use was again the focus in a 2005 case that held that federal law enforcement officials are permitted to prosecute medical marijuana patients even if the patient grows his or her own medicine and even if he or she resides in a state where medical marijuana use is protected under state law. The court’s ruling doesn’t invalidate California’s law that permits such use, which means that Californians with a doctor’s recommendation can continue to use marijuana without fear of local prosecution. Because federal law enforcement authorities do not have the resources to bring more than a few, token cases, the decision is not expected to have much practical effect on patients using marijuana for medicinal purposes in states such as this that have approved its use.

Perhaps one of the most controversial cases was decided in 2006 when a San Francisco federal jury found an Oakland resident guilty of cultivating cannabis, conspiring to cultivate, and maintaining a place where drugs are manufactured. Because it was a federal case and not a state case, jurors didn’t hear evidence regarding Proposition 215 or about the fact that the defendant was specifically authorized by the city of Oakland to grow medical cannabis. Jurors publicly recanted their “guilty” verdict after finding out all the facts.

Because the federal rules and state rules regarding medical marijuana conflict, it is advisable that anyone accused of participating in an activity relating to the medical use of marijuana consults a drug crime defense attorney. The exceptional attorneys at The Kavinoky Law Firm specialize in drug offenses and are the most qualified to defend their clients against the severe penalties that are often imposed in connection with drug cases. They keep up-to-date on the latest laws and case rulings regarding both federal and state medical marijuana issues, which allows them to provide their clients with the most comprehensive defenses available. For unparalleled legal advice and the best representation, contact the firm today for a free consultation.

Possession of marijuana for sale – lack of knowledge

Possession of marijuana for sale is an automatic felony in California, where as a personal possession charge may be prosecuted as either a misdemeanor or a felony, depending on the circumstances. In order to avoid the severe penalties that may be imposed in connection with a “for sale” charge, it is critical that an individual accused of this offense contacts a California drug crime defense attorney who is well versed with the many defenses that are applicable to this crime.

Lack of knowledge is one of these defenses. When a person is charged with possessing marijuana for sale, the prosecutor must be able to prove that the individual had the intent to sell the drug and that he or she had knowledge of its presence and its illegal character. If these knowledge requirements are successfully rebutted, the jury is not permitted to return a guilty verdict. The bottom line is that possession implies knowledge – without it, a possession charge simply won’t hold up.

Lack of knowledge is challenged in two ways. The first way deals with a lack of knowledge about the presence of the marijuana. This type of defense will work best when, for example, an individual buys new property that has a significant number of marijuana plants growing on a remote piece of the land. If the plants were discovered by the police and the property owner was charged with possession for sale (incidentally, he or she would probably also be charged with cultivating marijuana under this scenario), he or she could claim that it was a previous owner who grew the plants and that he or she had no knowledge of their existence, as he or she never ventured out to that part of the land.

Similarly, a lack of knowledge defense is raised when an individual doesn’t know the illegal character of the marijuana drug. Looking to the same scenario, perhaps the new property owner does know that the plants exist, but doesn’t know that they are marijuana plants – he or she only knows that “plants” are growing on the property. Without knowing that the plants are illegal or that they have a narcotic character, he or she has not committed a crime. It should be noted that this type of “knowledge” defense will only apply to someone who has no recorded history of any drug activities and to someone who didn’t make any incriminating, contrary statements to the investigating officers.

A lack of knowledge defense, when applied to a possession of marijuana for sale case will typically work best when the accused didn’t have actual (or physical) possession of the drug but rather was charged with constructive or joint possession of the drug. Although circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it) may be used to prove that the accused had knowledge about the marijuana, a good criminal defense lawyer will know the most effective ways to challenge that evidence so that the defense will stand.

The exceptional criminal attorneys at The Kavinoky Law Firm know the ways that a “lack of knowledge” defense will be best applied and further know how to successfully convey it to a judge and jury to favorably represent their clients. They specialize in California drug laws and have mastered this, as well as the many other defenses that apply to “possession of marijuana for sale” cases. With law offices throughout the state, including several in and around Los Angeles, they are available to provide their outstanding legal advice and services to anyone in need of a skilled California drug crime defense attorney. To learn more about the defenses that apply to a possession for sale charge or for questions about any other marijuana or drug related legal matter, contact the firm today for a free consultation.

Clandestine Labs and Minors

Operating a clandestine lab is an extremely serious offense in California that carries harsh repercussions, and certain factors called sentencing enhancements, can, if proven, increase the punishment substantially. One possible sentencing enhancement in a California clandestine lab is the allegation that minors were present. Knowledgeable California drug attorneys from The Kavinoky Law Firm will do everything possible to protect you from the substantial consequences of a clandestine lab case with sentencing enhancements.

You cannot have the additional punishment of a sentencing enhancement imposed if you aren’t convicted of the underlying charge. And just like the underlying drug charges, sentencing enhancements must be proven beyond a reasonable doubt or you cannot receive additional punishment.

These are the sentencing enhancements that can be added to a California clandestine drug labs case if children are alleged to be present or involved:

Code Section Enhancement Sentence 11380 Utilizing, soliciting, furnishing a minor re: methamphetamine 3-6-9 11379.7 If guilty of 11379.6 or 11383 in structure where child under age 16 is present:
If 11379.6 or 11383 and child under 16 suffers great bodily injury:
Add two years

Add five years

11379.9 If 11379.6 or 11383 and death or great bodily injury occurs to an adult Add one year

It’s critical to aggressively fight both the underlying charge of operating a clandestine lab and any sentencing enhancements, such as the allegation that a minor was present, if you hope to avoid the harsh punishment of a drug manufacturing conviction.

Skilled California drug attorneys from The Kavinoky Law Firm have the experience needed to fight a clandestine lab case and any accompanying sentencing enhancements. Please contact a top California drug lawyer today at 1.800.NO.CUFFS for a free consultation.