The DMV

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

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

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

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

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

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

SB420 – California’s statutory law regarding medical marijuana

SB420 is similar in nature to Proposition 215 in that both legalize medical marijuana use, cultivation and distribution in California under specific circumstances. Medical marijuana, defined under this law, consists of dry buds or conversion and not leaf, seeds or stems. Unlike Prop. 215 (also known as the Compassionate Use Act), which was passed by voters, SB420 (Senate Bill 420) was passed by the Legislature. Both are governing laws in California and don’t conflict with one another like they do with federal law, which states that all marijuana use is illegal – period.

Because the laws regulating medical marijuana are specific and complex, an individual accused of any activity regarding marijuana (especially one who was participating in the activity for medicinal purposes) should immediately contact a skilled California drug crime defense attorney to avoid the harsh penalties that can be imposed in connection with the offenses that involve this drug.

SB420 creates two classes of individuals that qualify for medical marijuana use: “qualified patients” (under Prop. 215) and persons with identification cards. Qualified patients are those whose doctors have recommended or prescribed marijuana for medical purposes for the treatment of their cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illnesses for which marijuana may provide relief who do not hold identification cards. Persons with identification cards must list their names on a government registry (which is confidential and for verification purposes only) and provide documented proof of their doctor’s approval. Identification cards are only valid for one year and only entitle a card-holder to grow or have up to eight ounces or dried bud or conversion and six mature or twelve immature plants unless one’s doctor or community authorizes more.

It should be noted that persons without identification cards are still entitled to the protections afforded by the Compassionate Use Act, however, the police may consider those patients subject to arrest. Because the police usually arrest most individuals engaged in marijuana activity in any event, this effect may be minimal. The law specifies that those who hold valid identification cards (whether patients or caregivers) shall remain free from arrest for possession, transportation, delivery or cultivation of medical marijuana as long as the amount is authorized by law unless there is reason to believe that the information contained in the card is false or unless there is reason to believe that the card was fraudulently obtained. An individual who is convicted for fraudulent activity under this law faces a misdemeanor, punishable by up to six months in the county jail and a maximum $1,000 fine for a first offense and up to one year in jail and a maximum $1,000 fine for a second or subsequent offense. He or she will additionally be precluded from attempting to obtain or use an identification card for a period of up to six months at the discretion of the court.

Because the police are quick to arrest anyone suspected of having anything to do with marijuana use (regardless of whether or not it is pursuant to legitimate medical purposes), it is absolutely necessary for an individual who has been accused of such activity to immediately contact an experienced criminal defense lawyer who understands the laws and defenses that apply to medicinal marijuana cases. The outstanding criminal attorneys at The Kavinoky Law Firm specialize in California drug offenses and know what it takes to win. They have mastered this unique area of the law and are dedicated to protecting the rights of their clients charged with marijuana offenses. With law offices throughout the state, they are conveniently accessible to anyone in need of a defense attorney who is devoted to the pursuit of justice. For the most trusted legal advice and unsurpassed representation, contact them today for a free consultation.

Crack and Base Cocaine Charges

Unfortunately, California is like many states and the federal government in that it treats crack cocaine offenses far more harshly than powder cocaine. Despite repeated calls for sentencing reform, California continues to mete out unfairly severe punishment to crack or base cocaine offenders.

If you’re charged with a California crack or base cocaine charge, you face extremely serious consequences, and you need a knowledgeable defense lawyer with the skills to aggressively fight your drug charge. An experienced California drug lawyer from The Kavinoky Law Firm has the legal knowledge you need to fiercely fight for your rights and your freedom.

Crack cocaine and base are Schedule I drugs under California Health & Safety Code section 11054 (f) (1)). Crack and base cocaine are illegal to use, possess, sell, possess to sell, manufacture or process, etc. A conviction for these offenses will likely bring prison time and other serious repercussions.

In addition to the underlying charges that can be brought in a California crack or cocaine base case, there are a number of sentencing enhancements that, if proven, can add years to your prison sentence. Possible sentencing enhancements in crack cocaine cases include weight enhancements, prior convictions, guns and firearms, location of crime, and minors.

Fortunately, an experienced California defense attorney can help you aggressively fight your crack and base cocaine charge. One possible defense strategy in a California crack cocaine case is a motion to suppress evidence. Sometimes police don’t follow proper procedures when gathering evidence in drug cases, and if so, it may be suppressed.

You may be eligible for alternative sentencing in your California crack cocaine case that allows you to avoid some or all of a jail or prison sentence. Possible sentencing alternatives in some California drug cases include a deferred entry of judgment (DEJ), Proposition 36, or drug court.

A California crack or base cocaine charge carries enormous consequences, so it’s imperative to have a knowledgeable drug defense lawyer fighting for your freedom. Skilled California defense attorneys from The Kavinoky Law Firm are ready to review your cocaine case and help you determine your next step. Please contact us today for a free consultation.

Heroin Weight Enhancements

A California heroin conviction can be punishable by years in prison, and factors called sentencing enhancements can add substantially to that punishment. One possible sentencing enhancement in a California heroin case is a weight enhancement.

If you’re facing California heroin drug charges, with or without a weight enhancement, a skilled defense lawyer can craft an aggressive defense strategy designed to protect you against substantial consequences. An experienced California defense attorneys from The Kavinoky Law Firm has the skills needed to fight for your rights and your freedom in your heroin case.

You can’t be punished for a weight enhancement or any other type of sentencing enhancement if you aren’t convicted of the underlying drug charge. Also, the prosecutor must prove your guilt in the weight enhancement beyond a reasonable doubt — just like the underlying heroin drug charge — for you to receive additional punishment.

These are the weight enhancements that can be included in a California heroin prosecution:

Code Section Enhancement Punishment 11352.5 If 14.25 grams or more of substance containing heroin and 11351 or 11352 Add fine of up to $50,000 PC 1203.07(a)(1),(2) If 14.25 grams or more of substance containing heroin and 11351 or 11352 No probation, no discretion 11370.4a1 More than one kilogram Add three years 11370.4a2 More than four kilos 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

Your California defense attorneys will do everything possible to defend you against the allegation of a weight enhancement in a heroin prosecution. One possible defense tactic is a motion to suppress evidence. If police didn’t follow the proper protocol when collecting evidence against you, it may be excluded.

If you’re facing a California heroin charges with a weight enhancement, it’s imperative to mount a strong defense designed to protect your rights and your freedom. A skilled California drug lawyer from The Kavinoky Law Firm has proven tactics to challenge a heroin charge and will do everything possible to protect you from the substantial consequences of a heroin charge. Please contact us today at 1.800.NO.CUFFS for a free consultation.

California Marijuana Law – money associated with unlawful transactions

When charged with a marijuana-related offense in California, the accused faces losing everything – his or her freedom, his or her job, his or her family, his or her home, his or her business and any profits that were involved in an alleged sale. In order to best avoid these harsh possibilities from becoming one’s reality, it is absolutely necessary that an individual accused of any illegal activity that involves marijuana immediately contacts a California drug crime defense attorney who knows the most effective ways to beat the charge.

An individual who possesses any money or negotiable instruments (checks, for example) in excess of $100,000, which was obtained as the result of the sale (or an offer to sell), possession for sale, transportation, manufacture (or an offer to manufacture) marijuana or, with the knowledge that the money or negotiable instrument was so obtained faces either a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by two, three or four years in the state prison. This same penalty applies to anyone who possesses any money or negotiable instrument in excess of $100,000 who intends to purchase marijuana and who commits an act in substantial furtherance of the purchase. When considering whether the accused is guilty of this offense, the judge or jury may consider (among other things) the defendant’s employment, expert testimony and the existence of any receipts showing proof of the sale.

An individual who knowingly participates in a transaction that involves proceeds that are known to be derived from a marijuana-related offense with the intent to conceal or disguise or aid in concealing or disguising the nature, location, ownership, control or source of the proceeds faces a misdemeanor, punishable by up to one year in jail or a felony, punishable by two, three or four years in prison and a maximum fine of $250,000 or twice the value of the proceeds involved in the violation, whichever is greater.

Any money that is associated with an unlawful transaction involving marijuana will be forfeited to the state. This consists of anything of value given or intended to be given in exchange for marijuana and includes all the proceeds that are traceable to such an exchange, so long as the offense involves manufacturing, selling, possessing for sale, offering for sale, offering to manufacture or conspiring to commit at least one of these offenses if the exchange, violation or other conduct occurred within five years of the seizure of the property, the filing of the criminal charge or the issuance of an order to forfeit the money, whichever came first.

It should be noted that this law authorizes the forfeiture of only those proceeds that are directly traceable to a specific exchange for marijuana. Similarly, only the money that is directly traceable to the exchange or violation (plus any accrued interest on that money) will be seized, even if commingled with other “clean” money.

California Marijuana and Drug Defense Lawyer

The unparalleled criminal attorneys at The Kavinoky Law Firm specialize in California drug crime defense and know what it takes to win. They have mastered all of the laws that apply to marijuana in California, know the many defenses that are applicable to these offenses and, most importantly, know how to effectively apply them in ways that convince judges and jurors that their clients have been victimized by overzealous law enforcement officials and prosecutors. With several law offices in Los Angeles and throughout the state, they are conveniently located for anyone in need of an experienced California criminal defense lawyer who is well equipped to present nothing short of a vigorous and aggressive defense. For the most trusted legal advice and the best representation, contact them today for a free consultation.

PCP and Firearms

A California PCP conviction carries extremely harsh consequences, and the punishment can be increased substantially by factors known as sentencing enhancements. One possible sentencing enhancement in a California PCP offense case can be filed when you’re accused of using a firearm during the commission of the offense or merely having access to one.

If you’re charged with a California PCP offense, you need a skilled drug lawyer ensuring that your rights are protected. Experienced California defense attorneys from The Kavinoky Law Firm has the advanced legal skills needed to aggressively fight your PCP charge.

Sentencing enhancements in California PCP cases must be proven beyond a reasonable doubt just like the underlying drug charge or you cannot receive additional punishment. If you aren’t convicted of the underlying drug charge, you cannot be convicted of or punished for a sentencing enhancement.

These are the gun-related sentencing enhancements that can be filed in a California PCP case:

Code Section Enhancement Sentence 11550e 11550 (under the influence) while in personal possession (including passenger compartment of vehicle) of loaded, operable firearm Misdemeanor or 16-2-3 11370.1 11377 (possession) while armed (available for offense/defense) with a firearm (loaded or unloaded, operable or inoperable) 2-3-4
No diversion, no deferred entry of judgment
PC 12022c 11378.5 or 11379.5 (or attempt) while armed (available for offense/defense) with firearm (loaded or unloaded, operable or inoperable) Full consecutive 3-4-5
(if vicarious 12022d
add 1-2-3
PC 12022a Armed with a firearm (loaded or unloaded) in the commission of any felony Add one year

A firearm enhancement can add substantially to your sentence in a California PCP case, so it’s in your best interest to mount an aggressive defense to the charges. A knowledgeable California drug lawyer from The Kavinoky Law Firm has the advanced legal skills needed to aggressively defend a PCP case. Contact a skilled California defense attorneys today at 1.800.NO.CUFFS for a free consultation.

Defenses to possession of marijuana for sale

Possession of marijuana for sale in California is a strict felony offense, punishable by sixteen months or two or three years in the state prison, heavy fines and a variety of other penalties. An individual’s best chance of avoiding these severe consequences is by hiring a skilled criminal attorney who specializes in California’s drug crime laws and who knows how to effectively employ all of the defenses that are applicable to this offense.

Although there are numerous defenses that may be used to challenge a possession for sale charge, the following are the most common: medical use, lack of knowledge, entrapment and illegal search and seizure. Officers are quick to arrest individuals that are involved in any activity having to do with marijuana and have been known to trump up simple possession cases to possession for sale cases. An experienced attorney is the key to defending this serious charge.

Marijuana has been legalized in California for those seriously ill patients (and their caregivers) who can benefit from the drug’s medicinal properties. These individuals must abide by certain rules and regulations that are set forth in Proposition 215 and Senate Bill 420. If a patient or caregiver falls under the law’s protection, possession for medical marijuana use or distribution may be a defense to this charge.

Lack of knowledge will be particularly applicable to cases where the police relied on constructive or joint possession to arrest the accused. “Possession” necessarily implies knowledge, so a lack of knowledge about the drug or its illegal character will automatically challenge the validity of the arrest.

Entrapment, though difficult to prove, may be argued if the accused possessed and intended to sell the marijuana only because he or she was pressured or coerced into doing so by law enforcement officials and would not otherwise have engaged in such activity.

Illegal search and seizure is perhaps the most notorious “possession for sale” defense that a skilled criminal attorney will argue. Based on a careful review of the case, the attorney for the accused will be able to determine if his or her client’s Constitutional rights were violated in any way when law enforcement searched for or retrieved the marijuana. This is a very technical defense that only a practiced drug attorney should attempt to argue.

The exceptional California drug crime defense lawyers at The Kavinoky Law Firm have mastered these as well as a host of other defenses that apply to “possession of marijuana for sale” cases and know how to effectively argue each. They are dedicated to protecting the rights of their clients and know what it takes to win. In addition, these outstanding attorneys know the best arguments to convince a judge that a “for sale” charge should be dismissed or reduced to a “personal possession” charge, which would allow the accused to participate in a deferred entry of judgment drug treatment program to avoid any jail or prison time. With law offices in Los Angeles and throughout the state, they are easily within reach of anyone in need of an assertive advocate and a vigorous defense. Contact them today for a free consultation, the most trusted legal advice and unsurpassed representation.

Sober living

Individuals convicted of California marijuana-related offenses face serious consequences. Many of these offenses (whether they are misdemeanors or felonies) carry jail or prison sentences and additional heavy fines. There are a variety of alternative sentencing options that focus on drug rehabilitation that may be imposed in lieu of a jail or prison sentence if one’s criminal defense lawyer knows to inquire about them and knows how to best convince a prosecutor and judge that his or her client would be better served by being treated rather than by being incarcerated. The outstanding criminal attorneys at The Kavinoky Law Firm are familiar with all of these alternative sentencing options and will do their best to ensure that their eligible clients receive treatment instead of a jail or prison sentence.

Sober living is one of these treatment options. Sober living is for anyone who needs help with a drug problem, but may be especially beneficial for those individuals who may have been unsuccessful with their marijuana or other drug rehabilitation efforts in the past, as this type of program is very intense and closely supervised. If an individual successfully completes his or her stay in a sober living house, he or she will receive credit (day for day) for the jail or prison sentence that would have otherwise been imposed (even if the law states that the offense for which he or she was convicted requires mandatory incarceration) and, if the time spent at the facility exceeds the jail or prison sentence that would have been imposed, he or she will receive credit in the amount of at least $30 per day towards his or her fine, depending on the court’s discretion.

Sober living requires that all residents attend support meetings (such as group counseling or classes and other 12-step programs) and contribute to the house by performing various household chores. Treatment plans are tailored to meet each resident’s individual needs and goals and typically include extended care, continuing care and transitional care. All treatment focuses on personal responsibility and generally addresses the physical, psychological, behavioral, social, family and spiritual aspects that all comprise drug addiction. Treatment may include education, group therapy, multi-family groups, relapse prevention plans, individual counseling and at least one 12-step program. As one progresses through the program and demonstrates that he or she is capable of “sober living” he or she may be permitted to work and otherwise leave the residence during the day but must return at night to participate in treatment and classes. This type of living is for those who need to address long term marijuana abuse problems and subjects its residents to mandatory drug tests, the results of which are immediately reported to the courts. If an individual is unsuccessful in his or her rehabilitation efforts, a jail or prison sentence will likely await.

The exceptional attorneys at The Kavinoky Law Firm specialize in California marijuana defense and in helping their clients to obtain the most favorable and least restrictive sentences available. Their vast knowledge about these different options allow them to explain the differences, advantages and disadvantages that exist between sober living, Proposition 36 sentencing and diversion programs – all programs that allow an individual to reduce or eliminate his or her jail or prison sentence, assuming that the individual successfully completes the selected program. In addition, these unsurpassed, savvy lawyers know which offenses are eligible for alternative treatment and know how to negotiate deals that allow their clients to become eligible, even if their charged offenses were not. For more information on sober living, contact The Kavinoky Law Firm today for a free consultation.

 

California crack or base cocaine charges carry harsh consequences, and factors called sentencing enhancements can increase those repercussions even more. One possible source of sentencing enhancements in California crack or cocaine base cases is the possession or use of firearms.

If you’re facing a California cocaine base or crack case involving a gun enhancement, you need a knowledgeable drug defense lawyer fighting for your freedom. A top California drug attorney from The Kavinoky Law Firm will do everything possible to fight both your underlying drug charge and any firearm sentencing enhancements.

The prosecutor must prove your guilt in both the underlying crack or cocaine base charge and any firearm enhancements if the court is to impose the additional sentencing enhancement. You cannot be punished for a firearm enhancement if you are not convicted of the underlying crack cocaine offense.

The following sentencing enhancements involving guns can be included in a California cocaine base or crack case:

Section Number Enhancement Sentence 11550e 11550 (under the influence) while in personal possession (including passenger compartment of vehicle) Misdemeanor or 16-2-3 11370.1 11350 while armed with a loaded, operable firearm 2-3-4
No diversion or deferred entry of judgment PC 12022c 11351.5 or 11352 (or attempt) while armed with a firearm (loaded or unloaded, operable or inoperable) Full consecutive 3-4-5 12022a Armed with a firearm (loaded or unloaded) during the commission of any felony Add one year

Fortunately, your defense lawyer can mount an aggressive defense to both a firearm enhancement and your underlying cocaine base or crack charge. One possible strategy that your defense lawyer may use is a motion to suppress evidence. If investigators didn’t follow the proper protocol when gathering evidence against you, it may be inadmissible.

To learn more about comprehensive defenses to crack cocaine charges and firearms enhancements, please contact an experienced California drug lawyer from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

PCP Weight Enhancements

In California, it’s against the law to possess, sell, possess for sale, and manufacture PCP, and a conviction for any of these offenses is typically punishable with repercussions that can include jail or prison time. In addition to the underlying drug charges filed in a PCP case, California law allows for certain sentencing enhancements that, if proven, can increase your punishment. One possible enhancement in a California PCP case is a weight enhancement.

Just like the underlying PCP charge, any sentencing enhancement must be proven beyond a reasonable doubt or you cannot receive the additional punishment. In addition, if you are not convicted of the underlying drug charge, you cannot be convicted of a sentencing enhancement.

These are the weight enhancements that can be filed in a California PCP case:

Code Section Enhancement Punishment PC 1203.07(a)(4) Possession for sale of more than 14.25 grams (.5 ounce) and 11378.5 No probation, no discretion 11370.4b1 More than one kilogram or 30 liters Add three years 11370.4b2 More than four kilograms or 100 liters Add five years 11370.4b3 More than 10 kilograms or 200 liters Add 10 years 11370.4b4 More than 20 kilograms or 400 liters Add 15 years 11379.8 If 11379.6 (manufacture) and more than one pound/three gallons Add three years 11379.8 If 11379.6 (manufacture) and more than three pounds/10 gallons Add five years 11379.8 If 11379.6 (manufacture) and more than 10 pounds/25 gallons Add 10 years 11379.8 If 11379.6 (manufacture) and more than 44 pounds/105 gallons Add 15 years

In addition to the underlying drug charges and weight enhancements that can be filed in a California PCP case, other possible enhancements include those for prior convictions, firearms, locations, and minors.

If you’ve been charged with any type of California PCP offense, a skilled drug defense lawyer will do everything possible to protect you from substantial consequences. Skilled California defense attorneys from The Kavinoky Law Firm can review your case and begin developing the most promising challenges. Please contact a knowledgeable California drug lawyer today at 1.800.NO.CUFFS for a free consultation.