Defenses to possession of marijuana for personal use

Possession of marijuana for personal use may be filed as either a misdemeanor or a felony in California, depending on the type and quantity of the marijuana. Possession of marijuana for personal use is considered a much less serious charge than possession of marijuana for sale, although it still carries stiff penalties itself. In order to avoid any of the consequences that are associated with this offense, it is imperative that an individual accused of possessing marijuana drugs for personal use hires an attorney who excels in this area of the law and who knows what defenses will most likely convince a judge and jury that his or her client should not be convicted.

Some of the most common defenses that may apply to possession of marijuana for personal use include medical marijuana, insufficient quantity, lack of knowledge, temporary possession for disposal, illegal search and seizure and entrapment.

Medical marijuana may be used as a defense when an individual either possesses the marijuana as a qualified patient, a person holding an identification card or a primary caregiver. These individuals have received permission by the state’s Compassionate Use Act to legally possess, cultivate or distribute marijuana, so long as the patient has received a doctor’s recommendation for its use.

Insufficient quantity or use may be used as a defense when only useless traces of marijuana residue are found or when the marijuana found can’t be used for narcotic purposes or for growing the plant.

Lack of knowledge would most likely be used as a defense in a case where the accused was charged with constructive or joint possession of marijuana. This type of defense would certainly apply where only circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it), linked the accused to the offense.

Temporary possession for disposal may be used as a defense if it can be argued that the accused only momentarily “possessed” the marijuana because he or she was in the process of disposing of it.

Illegal search and seizure may be used as a defense under a variety of circumstances. This defense may apply if a warrantless search is conducted of one’s residence, under circumstances involving a vehicle or where an inappropriate “pat-down” has been conducted. This list is by no means exclusive, which is why it is critical that a skilled criminal defense lawyer who specializes in California drug crimes is consulted, as he or she will be able to review the case file and determine whether or not there was an illegal search and seizure and how to best convince the court that one took place.

Entrapment may be used as a defense if the only reason that the accused possessed the marijuana was because he or she was pressured into doing so by the police for any number of reasons. If entrapment is an appropriate defense, a seasoned attorney will make a motion to dismiss at the outset of the case.

As previously stated, these are simply the most common defenses that arise in connection with possession cases. An experienced defense attorney who regularly practices California marijuana defense will have an in-depth knowledge about these as well as a variety of other defenses that will help resolve their client’s personal possession case in a favorable way. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered this area of the law and are prepared to vigorously defend any client charged with marijuana possession. They have law offices located throughout Los Angeles and California, enabling them to provide their excellent services to anyone in need of a California drug crime defense lawyer. Contact them today for a free consultation and for unsurpassed representation.

Possession of marijuana for sale – discovering the identity of an informer

Possession of marijuana for sale, in California, is a felony offense punishable by imprisonment in the state prison, heavy fines and a host of additional penalties. Because the consequences of this charge are so severe, it is absolutely necessary for an individual charged with this offense to immediately consult with an experienced California drug crime attorney who has mastered the defenses that are applicable to this crime.

Discovering the identity of an informer could be a useful defense to a possession of marijuana for sale case if the informer had his or her own motive for reporting the allegedly criminal behavior – either because he or she was trying to escape his or her own criminal culpability or because he or she was jealous of or angry at the accused, possibly even framing the individual for illegal marijuana possession.

There is well settled law that establishes a privilege against disclosing the identity of an informer who provides information to a law enforcement agency or judge in the reporting of criminal activity. If the informer provides enough information to a judge, which convinces the judge to execute a search warrant and the warrant is valid on its face and leads to the seizure of marijuana and any related paraphernalia, the identity of the informant is generally kept confidential. However, a savvy criminal attorney, who specializes in California drug crime defense, knows the most effective arguments to convince a judge that the identity of the informant can have a critical impact on the outcome of the case. It should be noted that in a case where there the informant provided information that lead to a warrantless arrest, the attorney would argue that the reliability of the informant must be examined in open court, a defense supported by California law.

The privilege to refuse to disclose the identity of an informant is limited by purpose, so the issue of fairness must be considered. California courts have stated that when the disclosure of an informer’s identity and/or the contents of his or her communication is relevant and helpful to the defense or is essential to a fair resolution of the case, the privilege must give way. This is the exception to the general rule that such disclosure is privileged, which allows a skilled criminal defense lawyer an opportunity to show that the identity is vital to the defense’s case. If, after being ordered to disclose the information the prosecuting agency still refuses to do so, the possession of marijuana for sale charges may ultimately be dismissed.

The outstanding attorneys at The Kavinoky Law Firm know how to persuade a judge that an informant’s identity or statements should be disclosed. They understand that one of the key factors that the court looks to when evaluating such a request is whether the informant is a potential material witness on the issue of guilt. Knowing all too well that informants often have their own guilty or inappropriate reasons for contacting law enforcement about the activities of another, they know how to successfully articulate why such an informer would be a material witness on the issue of guilt (which, in a possession for sale case revolves around intent to sell and knowledge), which would then provide the attorney with the opportunity to examine the witness.

The laws that regulate the disclosure of an informant are technical and complex, which is why only a criminal attorney who has mastered the laws that relate to California’s drug offenses should attempt to challenge them. The exceptional lawyers at The Kavinoky Law Firm specialize in this area of the law and are well equipped to successfully demand disclosure of such important, possibly exonerating evidence. To learn more about the laws that protect an informer and the variety of other defenses that apply to a California possession of marijuana for sale charge, contact these unsurpassed attorneys today for a free consultation.

Many California drug offenses are punishable with incarceration, but in some cases it’s possible to obtain alternative sentencing that can help you avoid all or part of a jail sentence. Top California drug lawyers from The Kavinoky Law Firm is well-versed in every type of alternative sentencing and can help you to understand your options.

An evaluation by a qualified substance abuse expert may help persuade the court that you and society could benefit far more from alternative sentencing than from jail. The Kavinoky Law Firm includes an evaluation by a top substance abuse experts in its retainer for all cases involving drugs and alcohol.

Three types of sentence alternatives that may be available in California drug cases are a deferred entry of judgment, or DEJ; Proposition 36; and drug court. Each has its own requirements and merits, and what’s available to you will depend on the facts of your case.

A deferred entry of judgment , or DEJ, provides many defendants an excellent outcome to their California drug cases. A defendant seeking a DEJ pleads guilty to the drug offense and then is allowed to withdraw the guilty plea 18 months later if certain requirements are met.

Proposition 36 mandates treatment rather than incarceration for certain first- and second-offense low-level drug charges. Although Prop. 36 isn’t available to everyone, for many defendants it has provided a life-transforming opportunity to get clean and seek freedom from active addiction.

Drug courts are another option that may be available in your jurisdiction. Drug courts, which have been gaining in popularity over the past two decades, also emphasize treatment over incarceration. Drug courts combine intensive treatment and social services with strong oversight by a judge to ensure that defendants are complying with program requirements.

If you’re a non-violent offender charged with a California drug offense, one of these alternative sentencing programs may offer a viable alternative to a jail sentence. A skilled California drug lawyer from The Kavinoky Law Firm is ready to review your case and explain your likely options. Please contact experienced California drug lawyers today at 1.800.NO.CUFFS for a free consultation.

Cocaine Base or Crack Charges

The laws in California governing cocaine base and crack cocaine are extremely harsh. Crack cocaine and base cocaine are illegal to use, possess, sell, possess to sell, and process or manufacture, and a conviction for most of these charges can result in a lengthy prison sentence.

The repercussions of many cocaine base or crack convictions remain harsher than for powder cocaine, despite efforts to remedy this injustice. If you’re facing a California crack or base cocaine charge, you need a knowledgeable drug defense lawyer who will do everything possible to protect you from the consequences you face. A skilled California drug attorney from The Kavinoky Law Firm has the experienced needed to aggressively fight your cocaine charge.

California’s determinate sentencing laws spell out three possible prison sentences for a cocaine offenses and other felony charges — a lower, a middle, and an upper term. The sentence the judge imposes will depend on the facts of the case and aggravating and mitigating factors — issues that will prompt the judge to treat you more harshly or leniently.

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

Code Section Charge Sentence 11350 Possession 16-2-3 11351.5 Possession for sale 3-4-5 11352 Sale (transport, import, furnish, administer, give away, or offers) 3-4-5 11379.6 Manufacture (process, prepare, etc.) 3-5-7 plus $50,000 11355 Agrees to sell, and then sells another substance in lieu of Misdemeanor or 16-2-3 11366.8a Possess or use false compartment in vehicle to store or transport Misdemeanor or 16-2-3 11366.8b Design or construct compartment in vehicle to store or transport 16-2-3 11401 Analog of cocaine base (controlled substance) (i.e. substantially similar chemical structure or effect) PC 182a1 Conspiracy to do any of the above (same as substantive charge) 11532 Loitering in a public place with the intent to commit a narcotics offense Misdemeanor

In addition to the charges listed above, the prosecutor may also file sentencing enhancements that, if proven, can add substantially to your prison sentence in a California crack or cocaine base case. Possible sentencing enhancements in a California crack cocaine case include weight enhancements, prior convictions, firearms, locations, and minors.

If you’re charged with a California crack and base cocaine charge, a skilled drug lawyer can help you mount an aggressive defense to your case. To learn more about comprehensive defense strategies in crack cocaine cases, please contact one of our California defense attorneys from The Kavinoky Law Firm today at 1-800-NO-CUFFSfor a free consultation.

Clandestine Drug Lab Charges: Guns and Firearms

Operating a clandestine lab in California is a serious offense that carries harsh consequences, and those repercussions can be substantially increased with the addition of sentencing enhancements that include guns and firearms.

The allegation that you used or possessed a firearm while manufacturing drugs is one possible sentencing enhancement that can be filed in a California clandestine lab case. A top California drug lawyer from The Kavinoky Law Firm has the skills needed to aggressively fight both the underlying drug charges and any sentencing enhancements.

The same constitutional protections apply to sentencing enhancements as to underlying criminal charges – your guilt must be proven beyond a reasonable doubt or you cannot be punished. You cannot be punished for a sentencing enhancement if you aren’t convicted of the underlying charge.

California’s determinate sentencing laws outline a range of punishment for felony offenses and enhancements. This range, expressed in months, or, more commonly, years in prison, is referred to as the lower, the middle and the upper term. The sentence the judge imposes will be determined by 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 in cases that involves clandestine labs involving a gun or firearms:

Code Section Enhancement Sentence 12022c 11378, 11379, or 11379.6 (or attempt) while armed (available for offense/defense) with a firearm (loaded or unloaded, operable or inoperable) Full consecutive 3-4-5
(If vicarious 12022d, add
1-2-3)
12022a Armed with a firearm (loaded or unloaded) during the commission of any felony Add one year

These sentencing enhancements for possessing or using a gun while pursuing any of the activities associated with operating a clandestine lab can add years to an already lengthy prison sentence, so it’s important to have a strategic defense plan. Skilled California drug lawyers from The Kavinoky Law Firm has the experience needed to fight both your underlying clandestine lab charge and any sentencing enhancements. Please contact a top California drug lawyer today at 1.800.NO.CUFFS for a free consultation.

In California, some marijuana violations are prosecuted as misdemeanors, some as felonies and some are considered “wobblers” which means that the prosecutor filing the charge has the discretion as to whether to charge the accused with a misdemeanor or a felony. Automatic felonies are reserved for the offenses that the state considers most serious, which includes manufacturing marijuana. In order to best defend against the severe penalties that this offense carries, it is imperative that an individual charged with this crime immediately contacts a skilled criminal defense lawyer who specializes in this area of the law and knows how to employ the most vigorous defenses.

Anyone who manufactures, compounds, converts, produces, derives, processes, or prepares marijuana, either directly or indirectly by chemical extraction or independently by means of chemical synthesis faces a felony, punishable by three, five or seven years in the state prison and a maximum fine of $50,000. Simply “offering” to perform one of these activities will still subject the accused to three, four or five years in the state prison.

“Manufacturing” marijuana does not necessarily mean that the process of manufacturing must be completed. Manufacturing marijuana may be charged when a person knowingly participates in the initial or intermediate steps necessary to process the marijuana. As a result, it is unlawful for a person to engage in the synthesis, processing or preparation of a chemical used in the manufacture of marijuana, even if the chemical is not itself a controlled substance, provided that the person knows that the chemical is going to be used in the manufacturing of marijuana. To prove the accused guilty of this offense, the prosecutor must show that the accused manufactured, compounded, converted, produced, derived, processed or prepared marijuana either directly or indirectly by means of chemical extraction or independently by means of chemical synthesis and that he or she knew that the marijuana that was being manufactured was a controlled substance. If the crime alleged is one of offering to do the above, it must also be proven that the accused had the specific intent to do so.

It should additionally be noted that an individual who has under his or her management or control any property (including a building, room, space, or enclosure), either as an owner, lessee, employee, agent or mortgagee, who knowingly leases, rents or makes available for use, with or without compensation, that property for the purpose of unlawfully manufacturing marijuana for sale or distribution faces either a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison. Anyone convicted of this offense a second or subsequent time faces two, three or four years in the state prison, as the offense will automatically be charged as a felony.

California Marijuana and Drug Defense Lawyer

When charged with manufacturing marijuana, it is critical that the accused contacts an experienced criminal attorney who understands how to successfully challenge this offense. The outstanding lawyers at The Kavinoky Law Firm have mastered everything that relates to California’s marijuana laws in an effort to provide their clients with unparalleled service. They meticulously review every case that comes their way in order to spot the defenses that will most likely convince a judge and jury that their clients are either entitled to an acquittal or, at the very least, are deserving of a reduced charge, which would entitle them to drug treatment programs in lieu of jail or prison time. To learn more about the defenses that apply to a California manufacturing marijuana charge, contact them today for a free consultation.

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.