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

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

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

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

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

Drug rehabilitation

When charged with certain non-violent marijuana offenses that indicate that the accused could suffer from a drug addiction (such as possession of marijuana for personal use vs. possession of marijuana for sale), there may be ways for that individual to escape a jail or prison sentence by participating in a drug treatment program instead. The key to securing this type of alternative sentencing option is to hire a California criminal defense lawyer who specializes in marijuana defense and who therefore knows which offenses qualify for alternative sentencing and, more importantly, how to persuade a judge that this type of sentencing will better serve his or her client, the court system and society as a whole.

Drug rehabilitation is authorized by California’s Penal Code and allows an eligible individual to receive credit for anytime he or she spends in a rehabilitation facility against his or her jail/prison sentence and fine. The stay will be credited against the jail or prison sentence day for day, and if the stay exceeds the sentence that would have otherwise been imposed, the accused will receive at least $30 per day of credit towards the fine, based on the discretion of the court. Because those who qualify are typically viewed as having an addiction (which is considered a health issue and not simply a criminal issue), one’s stay in a drug rehabilitation facility may even be covered by one’s health insurance.

Rehabilitation may be ordered pursuant to a Proposition 36 sentence, as a part of a diversion sentence or in the form of sober living. There are differences, advantages and disadvantages that exist among all of these alternative sentencing options and only a skilled marijuana criminal attorney is qualified to explain them and to help his or her decide which type of program best serves his or her individual needs and goals.

Drug rehabilitation programs may be outpatient or residential, but only a live-in program will qualify for jail or prison credit (as opposed to, for example, weekly attendance at a 12-step program). Residential programs are often one of the most successful treatments for marijuana addiction, as the residents are removed from their otherwise tempting environment and from the pressures that may lead them to “get high,” allowing them to completely focus on their addiction. Many incorrectly believe that marijuana is a drug that one cannot become addicted to, however, those who have habitually used marijuana for a while form both physical and lifestyle addictions to the drug – addictions that a savvy attorney can convince the court that a live-in rehabilitation facility will better be able to address than any type of services that are offered in a county jail or state prison.

Typical live-in rehabilitation facilities offer a variety of programs, including individual and group counseling, education and 12-step programs. Residents are usually not allowed to leave the facility, as the treatment that takes place is intense and very closely supervised.

The outstanding, trusted and compassionate attorneys at The Kavinoky Law Firm focus on California marijuana defense and have mastered everything related to this area of the law. They are well versed in all of the alternative sentencing options that are available to those charged with certain marijuana offenses and will do their best to successfully negotiate plea bargains for their clients that include this type of sentencing, even if the original charged offense was one that is ineligible. They know and, more importantly, are able to articulate to judges and prosecutors why a rehabilitation program will give their clients a better chance of not repeating their same mistakes and why such a program will make them more productive, sober members of society. In order to secure the best representation from a firm that is dedicated to protecting the rights of their clients, contact The Kavinoky Law Firm today for a free consultation.

Registered Narcotics Offenders

Under California Health and Safety Code section 11590, anyone convicted of certain drug offenses is required to register as a narcotics offender. This is a confusing requirement to many California drug and narcotic offenders. Skilled California drug lawyers from The Kavinoky Law Firm can answer any questions you have about the requirement to register as a narcotics offender.

Anyone required to register as a narcotics offender under H&S 11590 must report to their local police station within 30 days of moving to a new area. The police will photograph and fingerprint you. You’re required to re-register any time you move. This requirement will remain in place for five years after your discharge from prison, jail or probation. Failure to register as a narcotics offender is a misdemeanor under H&S 11594.

Anyone convicted of the following California Health and Safety Code sections is required to register. 11350, 11351, 11351.5, 11352, 11353, 11353.5,
11353.7, 11354, 11355, 11357, 11358, 11359, 11360, 11361, 11363,
11366, 11366.5, 11366.6, 11368, 11370.1, 11378, 11378.5, 11379,
11379.5, 11379.6, 11380, 11380.5, 11383, or 11550, or subdivision (a)
of section 11377.

One way to avoid the requirement that you register as a narcotics offender is to obtain alternative sentencing that allows you to avoid a criminal record if you successfully complete a program. Another way is to enter a plea bargain that allows you to plead guilty to an offense that doesn’t require narcotics offender registration.

Of course, the best way to avoid the requirement of registering as a narcotics offender is to avoid getting convicted of a California drug offense in the first place. A skilled California drug lawyer from The Kavinoky Law Firm is well-versed in the latest defense strategies against narcotics charges. Please contact knowledgeable California drug lawyers today at 1.800.NO.CUFFS for a free consultation or fill out the following Free Drug Case Evaluation.

PCP Charges

PCP is illegal to use, possess, sell, possess for sale and manufacture in California, and a violation of these laws can bring extremely harsh repercussions that include prison time. Because the consequences of a California PCP conviction are so severe, it’s imperative to launch a strategic defense to the charges. Knowledgeable California drug defense attorneys from The Kavinoky Law Firm has the skills and experience needed to aggressively fight your PCP charge.

Most California PCP offenses are charged as felonies, but a few are considered “wobblers,” meaning that they can be charged as either misdemeanors or felonies, but prosecutors often opt for the more serious charge. Most California drug offenses are included in the Health & Safety code, but a few violations are found in the Penal Code.

Under California’s determine sentencing laws, every felony carries three possible prison sentences — the lower, middle and upper term. The sentence imposed depends on information such as aggravating and mitigating factors — issues that prompt the judge to treat you more harshly or leniently.

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

Code Section Charge Sentence 11377 Possession Misdemeanor or 16-2-3 11378.5 Possession for sale 3-4-5 11379.5a Sale (transport, import, furnish, administer, give away, or offers) 3-4-5 11379.6 Manufacture (process, prepare, etc.) 3-5-7 plus $50,000 11382 Agrees to sell, then sells another substance in lieu of Misdemeanor or 16-2-3 11383b Possession of precursor chemicals with intent to manufacture 2-4-6 11366.8a Possession or use of 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 controlled substance (i.e. substantially similar chemical structure or effect) PC 1203.07(a)(5),(6) If 11379.5 No probation, no discretion PC 1203.07a10 If 11383 No probation, no discretion PC 182a1 Conspiracy to do any of the above Same as substantive charge 11532 Loitering in a public place with intent to commit a narcotics offense Misdemeanor

In addition to the charges that can be filed in a California PCP case, there are numerous sentencing enhancements that, if proven, can be used to enhance your punishment. The prosecutor in your PCP case can file enhancements for weight, prior convictions, firearms, locations, and the allegation that you involved minors in the commission of your offense.

Clearly, a California PCP case carries the possibility of significant punishment, so you need knowledgeable California drug defense attorneys at your side fighting to protect your freedom. A seasoned California drug attorney from The Kavinoky Law Firm has many tools at hand to aggressively fight your PCP charge. Please contact us at 1.800.NO.CUFFS today for a free consultation.

Cocaine Base or Crack with Weight Enhancements

California crack or cocaine base charges carry extremely serious repercussions, and factors known as sentencing enhancements can add years to a prison term. If you’re facing a California crack or cocaine base charge with or without sentencing enhancements, you need an experienced drug defense attorney who can fight aggressively for your rights. A skilled California drug lawyer from The Kavinoky Law Firm is ready to review your case and help you determine your next step.

One possible sentencing enhancement in a California crack or cocaine base case is a weight enhancement. Like the underlying drug charge, a weight enhancement must be proven beyond a reasonable doubt if you are to be punished for it. You can’t be punished for a weight enhancement or any other sentencing enhancement if you aren’t convicted of the underlying drug charge.

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

Code Section Enhancement Sentence 1203.73b5 Two ounces of a substance containing at least five grams of cocaine base or one ounce of pure cocaine base No probation, judge has 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

The good news is that it’s possible to mount an aggressive fight to a crack or cocaine base charge and any accompanying sentencing enhancements. One tactic an experienced California defense lawyer may use is a motion to suppress evidence. If police didn’t follow the correct protocol when gathering evidence against you, it may be inadmissible.

In some California crack cocaine cases, it may be possible to arrange alternative sentencing that permits you to avoid some or all of a prison sentence. Some types of sentencing alternatives that may be available include a deferred entry of judgment (DEJ), drug court, or Proposition 36.

If you’re facing a crack or cocaine base charge with weight enhancements, you need an experienced California drug defense attorney who will fight aggressively to protect you from the substantial repercussions you face. Experienced California defense attorneys from The Kavinoky Law Firm is ready to review your case and help you to understand your options. Please contact us today at 1.800.NO.CUFFS for a free consultation.

California Marijuana Law – Marijuana’s unique issues

Marijuana, also known as grass, pot, bud, weed, Mary Jane, ganja, cannabis and indo, is one of the most commonly used illegal drugs in this country. As a result, crimes that involve its use or distribution are heavily prosecuted and can carry heavy sentences. While most drugs are regulated by the same laws, there are a few areas where marijuana laws differ from the laws that deal with other drugs. These areas include cultivation, transportation – when the amount is less than 28.5 grams – and being under its influence. Because the laws that regulate marijuana drugs are specific and technical, it is advisable that an individual charged with a marijuana-related offense contacts a qualified criminal defense lawyer. The outstanding attorneys at The Kavinoky Law Firm specialize in California drug crimes and have mastered the laws and defenses that apply to marijuana offenses. They are dedicated to protecting the rights of their clients and will do their best to have all drug charges either reduced or dismissed.

With respect to marijuana cultivation, cultivating any amount of marijuana may lead to felony prosecution, as the law states that, “every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof…shall be punished by imprisonment in the state prison.” However, if the cultivation is for approved medical purposes, the individual may be exempt from prosecution from this law. In addition, if the cultivation is for personal use (with no evidence of any intent to sell), but isn’t for medicinal purposes, the accused may be permitted to participate in a drug-diversion program to avoid a prison sentence. This is one of the reasons why it is critical to have an experienced California drug crime defense attorney, as an inexperienced attorney would not know to inquire about this type of alternative sentencing.

While selling, importing, furnishing, administering, transporting, giving away or offering to do any of the above with marijuana will generally result in a felony charge (punishable by two, three or four years in the state prison), transporting less than one ounce (28.5 grams) of the drug, unless it’s concentrated cannabis, will typically result in a misdemeanor charge, punishable by a maximum $100 fine.

As for being under the influence of marijuana…this is not in and of itself a crime, as is the case with many (if not most) other illegal drugs. Being under the influence of most other drugs will result in a minimum 90-day jail sentence, and an individual’s sentence increases with each subsequent conviction. No mention is made in California’s Health and Safety code, however, about being under the influence of marijuana drugs. The exception, of course, lies in how one conducts him or herself while under the influence. For example, if an individual is under the influence of marijuana and drives a car, he or she will still be prosecuted for driving while under the influence.

California Marijuana and Drug Defense Lawyer

Because California is cracking down on its drug offenders, officers are eager to arrest and prosecutors are eager to convict based on any shred of evidence. The most important call the accused can therefore make is to a good criminal attorney who knows how to successfully challenge and defeat what are often trumped-up charges. The unsurpassed defense attorneys at The Kavinoky Law Firm have law offices throughout the state and are well qualified to defend against marijuana and other drug charges, as they specialize in this area of the law. They pride themselves on their outstanding reputation with local judges and prosecutors, which provides their clients with a tremendous advantage when it comes time to discuss their cases. Their thorough knowledge of California drug laws enables them to give their clients the most comprehensive defenses available – something that an inexperienced attorney simply can’t do. For the most trusted legal advice, contact The Kavinoky Law Firm today for a free consultation and for the best representation.

Firearms and California Methamphetamine Cases

California methamphetamine charges can bring extremely harsh consequences, and additional allegations known as sentencing enhancements carry substantially heavier repercussions. One possible sentencing enhancement in a California meth case can be filed if you’re accused of having access to or using a firearm. This is when you will need skilled California criminal defense attorneys.

The prosecutor must prove both the underlying methamphetamine charge and any sentencing enhancements such as firearms beyond a reasonable doubt if you are to receive additional punishment. You cannot be convicted of a sentencing enhancement if you are not found guilty of the underlying drug charge.

The following firearms enhancements can be filed if a gun is involved in a California methamphetamine case:

* 11550e — being under the influence of methamphetamine while in personal possession of a loaded, operable firearm — misdemeanor or 16 months, two years or three years in prison
* 11370.1 — possession of methamphetamine while armed with a loaded, operable firearm — felony punishable by two, three or four years in prison, no diversion or deferred entry of judgment (DEJ).
* PC 12022c — 11378 (possession for sale), 11379 (sale), or 11379.6 (manufacture) while armed with a loaded or unloaded, operable or inoperable firearm is a felony punishable by a full consecutive term of three, four or five years in prison.
* PC 12022a — the commission of any felony with a loaded or unloaded firearm adds one year to the sentence.

The use of a firearm or even the presence of a gun can add years to your sentence in a California meth case, but only if the prosecutor can prove both the drug charge and the firearm enhancement beyond a reasonable doubt.

An experienced California drug defense lawyer will do everything possible to protect you from those consequences. If you’re facing a methamphetamine charge in California, you need a top drug defense attorney fighting for your rights. Skilled California criminal defense attorneys and lawyers from The Kavinoky Law Firm is ready to review your case and begin building an aggressive defense strategy. Please contact us today at 1.800.NO.CUFFS for a free consultation.

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.