California Marijuana Laws – Possession of marijuana for personal use – medical marijuana

Possession of marijuana for personal use is prohibited by law and includes possession of any concentrated cannabis, possession of more than one ounce of marijuana (other than concentrated cannabis) or possession of less than one ounce of marijuana (other than concentrated cannabis). The first scenario may result in misdemeanor or felony prosecution, the second and third only in misdemeanor prosecution. Patients who need marijuana for medical reasons (who have a doctor’s approval for using the drug) are supposed to be exempt from this law, however overzealous law enforcement are quick to arrest anyone having anything to do with marijuana use or possession. As a result, an individual who is arrested for possession (who believes that he or she is legitimately authorized to use it for medicinal purposes) must contact an experienced California drug defense attorney who is knowledgeable with respect to a medical marijuana defense.

Medical marijuana use is regulated by The Compassionate Use Act and by Senate Bill 420. The Compassionate Use Act states that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. These patients are known as “qualified patients” and are not supposed to be arrested for possession or cultivation of marijuana. Senate Bill 420 defines patients with identification cards as those who hold a card issued by the State Department of Health Services which identifies that individual as a person authorized to engage in the medical use of marijuana.

An individual who meets either of these requirements should not, unless there are other circumstances that would warrant prosecution, be held criminally liable for marijuana use or activity under California’s current personal possession laws, possession of marijuana for sale laws, cultivation laws, transportation laws or those laws that deal with unlawful places and activities. However, as previously stated, medical marijuana use isn’t always recognized by the police and, as a result, people are frequently arrested for possessing marijuana and must turn to a skilled attorney for help.

It must be noted that just because an individual is permitted to use marijuana for medical purposes, this defense will not apply if he or she used the marijuana where smoking is prohibited by law, within 1,000 feet of a school, recreation center or youth center unless the use was within a residence, on a school bus, in a car that was being operated (even if the accused was only the passenger) or while operating a boat.

Medical marijuana use is a defense that only a practiced criminal attorney should employ, at its requirements are technical and specific. The outstanding attorneys at The Kavinoky Law Firm specialize in California drug crime defense and know how to effectively apply a medical marijuana use defense under the appropriate circumstances. Through their savvy negotiation skills and based on their excellent and trustworthy reputation with state and local prosecutors, they are able to quickly resolve these types of cases in the pre-trial stages, helping their clients avoid trials where possible. With law offices located throughout California, including several in Los Angeles, they are easily accessible to anyone in need of a top defense attorney who has mastered everything related to California’s drug laws and their defenses. For unsurpassed representation and for the most trusted legal advice, contact The Kavinoky Law Firm today for a free consultation.

Prior Convictions and California Methamphetamine Cases

If you’ve been arrested for a California methamphetamine charge, the prosecutor may add factors called sentencing enhancements that can add substantially to your methamphetamine sentence if convicted.

One possible sentence enhancement in a California meth case is for prior convictions. If you’re facing a repeat-offense California methamphetamine charge, skilled California defense lawyers from The Kavinoky Law Firm may be able to help you avoid some of all of the consequences you face.

Under California Health & Safety Code section 11370.2b,c, you can be sentenced to an additional three years in prison for each prior methamphetamine conviction if you are convicted of H&S 11378 (possession for sale), 11379 (sale), 11379.6 (manufacture), 11380.5 (offenses in public parks or beaches), 11383 (possession of chemicals with intent to manufacture) with prior 11351 (possession with intent to sell), 11351.5 (possession of cocaine base), 11352 (transport, import, furnish, etc.), 11378.5, 11379.5. 11379.6, or 11380.

Under California Penal Code section 1203.07(a)(11), if you have a prior conviction for H&S 11378 (possession for sale) or 11379 (sale) and are charged with either of these offenses again, you cannot receive probation. The judge has no discretion in this matter.

Under California Penal Code section 1203.073 b8, a prior conviction for H&S 11378, 11379, 11379.6, 11380, 11382, or 11383 means that you cannot receive probation for a new conviction of 11379.6, 11382, or 11383. However, the judge has discretion in this matter.

California Penal Code section 667.5b dictates that you can receive an additional year for a methamphetamine conviction for each prior prison sentence. However, this additional time cannot be imposed if you avoided additional felony convictions or incarceration for five years after being released from prison.

Under California H&S 11366.5c, if you’re convicted of 11366.5a (managing a place for manufacture, storage and/or distribution of a controlled substance and have a prior conviction for the same charge, you can be sentenced to an additional two, three or four years in prison.

Prior drug convictions in California methamphetamine cases can add years to your sentence, so it’s up to your California defense attorney to aggressively fight both the underlying drug charge and any sentencing enhancements.

To learn more about aggressive defenses to methamphetamine charges, please contact experienced California criminal defense lawyers from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Heroin Charges

Heroin is a Schedule I drug under California Health and Safety code section H & S 11054 (c) (11)), and it is illegal to use, sell, possess to sell, and manufacture or process in California. Violations of these laws are felonies that carry significant prison time and other penalties.

If you’re facing a California heroin charge, it’s essential to have experienced California drug defense attorneys on your team fighting for your freedom. An experienced California drug lawyer from The Kavinoky Law Firm has the skills and knowledge needed to aggressively fight your heroin charge and ensure that your rights are protected.

California has determinate sentencing laws that spell out three possible prison terms for felony offenses — the lower, the middle and the upper term — expressed in months or years. The judge determines the sentence based on information such as aggravating and mitigating factors — issues that prompt the court to treat you more harshly or leniently.

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

Code Section Charge Sentence 11350 Possession 16-2-3 11351 Possession for sale 2-3-4 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, 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 false compartment in vehicle to store or transport 16-2-3 11401 Analog of heroin (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 intent to commit a narcotics offense Misdemeanor B & P 4140 Possession of a hypodermic needle or syringe

The consequences of a heroin conviction can be extremely harsh, but it’s possible to fight these charges and win with the help of skilled California drug defense attorneys. The Kavinoky Law Firm will provide an experienced California drug lawyer that will take every step possible to protect you from the serious repercussions of a heroin conviction. To learn more, please contact us today at 1-800-NO-CUFFSfor a free consultation.

Unless a medical marijuana defense applies, activities that involve the sale, cultivation, transportation or possession (whether for personal use or for sale) of marijuana are illegal in California and are prosecuted as either misdemeanor or felony offenses. When any of these activities involves a minor, the offense will be automatically charged as a felony. In order to avoid the severe penalties that are associated with these types of convictions, it is critical that an individual accused of illegally engaging in marijuana activities with a minor contacts a California drug crime attorney who can begin building a vigorous defense.

Preparing for sale, selling or giving away marijuana will be charged as a felony when an adult engages in one of these activities with a minor. The penalties for these offenses range from three to nine years in the state prison for a first offense (depending on the age of the minor and on the location of the offense) and can result in lifetime incarceration if the offense is the defendant’s third.

Anyone 18 or over who prepares marijuana for sale on school grounds, a public playground, a child day care facility, a church or a synagogue or who sells or gives away marijuana to a minor upon those same grounds, upon grounds where schooling takes place or upon grounds whose facilities are open to children at any time when children are or may be present, faces a felony, punishable by five, seven or nine years in the state prison. This section only applies to an individual who is at least five years older than the minor to whom he or she engages in such an activity. It should be noted that an individual who suffers a conviction for this offense who has previously served two or more prison terms for specific drug offenses that involved minors may be imprisoned for life. The laws that regulate this sentencing scheme are technical, which is another reason why only a skilled criminal defense lawyer who regularly practices this area of law should be contacted when accused of such an offense.

Anyone 18 or over who prepares marijuana for sale in a public park or who sells or gives away marijuana to a minor under 14 in a public park, during open park hours, knowing that the minor is under 14, faces a felony, punishable by incarceration in the state prison for three, six or nine years.

Anyone 18 or over who hires, employs or uses a minor in unlawfully transporting, carrying, selling, offering to sell, giving away, preparing for sale or peddling marijuana, or who induces a minor to illegally use marijuana faces a felony, punishable by three, five or seven years in prison. The penalty is the same for furnishing, administering or giving away marijuana to a minor or for offering to do any of these activities.

Although criminal penalties won’t attach, it should be noted that an individual who owns, maintains or operates a business where drug paraphernalia is kept, displayed, sold, furnished, transferred or given away must keep a separate room for these items that excludes minors, unless they are accompanied by a parent or legal guardian. This section does not apply to pharmacists, doctors or others licensed by the California State Board of Pharmacy to sell or transfer drug paraphernalia. Violating this law provides grounds for revoking or not renewing a license, permit or other entitlement that allows such a business to operate.

California Marijuana and Drug Defense Lawyer

Clearly, the consequences for involving a minor in activities that deal with marijuana are severe and can be life changing. In order to best ensure that these possibilities don’t become a reality, it is vital that an individual accused of such an offense immediately contacts an experienced criminal attorney. The unsurpassed attorneys at The Kavinoky Law Firm specialize in California drug crime defense and are well equipped to present the most compelling arguments in order to protect the rights of their clients. Don’t wait – contact them today for a free consultation.

Chemical testing in a DUID case

Although driving under the influence of alcohol and marijuana cases are investigated in very similar ways in California, there are a few differences. One of the main disparities lies within the types of chemical tests that are available to each type of suspect. In this state, an alleged “drunk driver” has the choice of taking a blood or breath test, while an individual accused of driving under the influence of drugs (DUID) has the choice of a blood or urine test. Because prosecutors heavily rely on the results of the chemical test, it is critical that an individual accused of driving under the influence of marijuana hires an attorney who understands the science behind blood and urine tests and who can articulate their weaknesses in a drug case to the judge and jury.

A driving under the influence of marijuana investigation, unlike an alcohol-related DUI, does not provide the investigating officer with the opportunity to do an on-site reading of the driver’s marijuana measurement. In a typical D.U.I. of alcohol investigation, the officer generally has a hand-held instrument, known as a preliminary alcohol screening (PAS) device that immediately displays the driver’s blood alcohol content, letting the officer know that the driver is either above or below California’s legal limit. There is no such test for an individual suspected of driving under the influence of marijuana or any other drug, which means that a suspected driver is arrested for this offense before he or she even submits to a blood or urine test.

Implied consent laws regulate which tests are available under certain circumstances and state that an individual suspected of D.U.I.D. must choose either a blood or urine test. All drivers in this state “consented” to this upon obtaining their driver’s license and the refusal to provide a chemical test will result in additional penalties.

Positive test results established through either of these tests does not mean that an individual is necessarily guilty of driving under the influence of marijuana – a key point that a skilled DUI criminal defense lawyer knows and understands. This is because marijuana can be detected in one’s system long after any impairment has passed. It should be noted that this is one area of the law where California drivers are treated more leniently than drivers in several other states that have “zero tolerance” laws. An individual whose blood or urine test comes back positive for any marijuana in a zero tolerance state will automatically be declared “under the influence”. A knowledgeable attorney in California, however, understands that urine tests detect only certain metabolites of marijuana, which can linger in one’s body for days or even weeks after use. He or she also knows that blood tests are a better indicator, as they actually measure THC (the main active ingredient of marijuana), however, even a blood test can detect low levels for a day or more after use. As a result, an experienced criminal attorney will ensure that the judge and jury understand that an individual who theoretically used marijuana on a Monday could be arrested later in the week, long after the marijuana’s effects had worn off. It must be noted that the only issue in a D.U.I. case is whether the driver was under the influence at the time of driving.

Defenses are available to an individual who tests positive for marijuana use following an arrest for DUID, provided he or she hires a savvy attorney who knows the most convincing ways to employ them. The unsurpassed lawyers at The Kavinoky Law Firm excel in California DUID defense. They keep up-to-date with the latest laws, evidentiary rulings and science that are involved with these types of cases and have mastered the defenses that are available to an individual who has been charged with driving under the influence of marijuana. Their outstanding results speak for themselves. For the most trusted legal advice and excellent representation, contact The Kavinoky Law Firm today for a free consultation.

Proposition 215 and subsequent court rulings

In 1996, Californians passed Proposition 215, also known as the Compassionate Use Act, which legalizes marijuana for medical use. It allows sick Californians to use marijuana, provided they first obtain a doctor’s recommendation, and also provides doctors with a legal defense against professional or legal sanctions for recommending marijuana use.

Because Proposition 215 puts California’s law in direct conflict with federal law, litigation remains an issue when an individual is charged with marijuana use or cultivation, even if he or she claims that it was done for medicinal purposes. This is why it is so important for an individual charged with participating in any activity that is related to medical marijuana use to contact an attorney who has experience with this area of the law and who knows how to successfully resolve all issues in his or her client’s favor.

Proposition 215 was enacted to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that use has been pre-approved by a doctor who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. It further provides that patients and their primary caregivers who obtain and use marijuana for medicinal purposes, upon the recommendation of a doctor, are not subject to criminal prosecution. The law was designed so patients in medical need of marijuana would have safe and affordable access to the drug.

Since the passage of Proposition 215, there have been two noteworthy court cases. The first was in 1998 when the U.S. government sued the Oakland Cannabis Buyers’ Cooperative in federal court for violating federal law. The Supreme Court eventually heard the case and unanimously overturned Proposition 215 in May of 2001. It should be noted that even though the law was overturned by the Court, it still exists and litigation still ensues. The second case was heard in 2003 when an Oakland resident was brought up on federal drug charges. Even though he was growing marijuana for the sick and had the legal authority from the city to do so, the federal judge ruled that Proposition 215 was not valid under federal law and, as a result, didn’t permit Prop. 215 into evidence. The jury found the defendant guilty, although once they learned about California’s law following the conclusion of the case, they demanded that the defendant be granted a new trial.

There is much debate about whether federal law should necessarily be supreme to individual state’s laws with respect to medical marijuana. There are several House members who are trying to pass bills that would force the federal government to recognize state laws relating to medical marijuana and that would amend federal law to allow state laws relating to medicinal marijuana to be raised in federal court cases.

When a legal conflict exists (such as this one between state and federal law), and a case goes before a judge – either state or federal – his or her ruling is based on his or her legal interpretation of the laws. This is why it is critical that an individual accused of illegal marijuana activity employs an aggressive and knowledgeable criminal defense lawyer who knows how effectively convey the interpretation that favors his or her client. The outstanding criminal attorneys at The Kavinoky Law Firm are devoted to protecting the rights of their clients with skill and integrity. They have mastered drug defense and are well equipped to successfully tackle any issues that comes their way. With law offices throughout California, including several in Los Angeles, they are conveniently located to assist anyone in need of an experienced drug crime attorney. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.

Personal possession of marijuana – temporary possession for disposal

Personal possession of marijuana may be prosecuted as either a misdemeanor or as a felony, depending on what type of marijuana the accused possessed and how much of the drug was possessed. Although the consequences of this offense are not as severe as a possession of marijuana for sale charge, they are still serious, which is why an individual charged with this offense should immediately contact a skilled criminal defense lawyer who regularly defends California drug charges to immediately begin building a defense based on the specific facts of the alleged crime.

Temporary possession of marijuana for disposal is one of the defenses that a savvy attorney might employ in a personal possession case. California courts have held that “possession” means having actual control, care and management over something. Consequently, “control” that is passing, momentary or fleeting will not constitute “legal” possession and therefore, an individual’s temporary possession of marijuana for the sole purpose of disposing of it will not (without more incriminating evidence) be sufficient to sustain a personal possession charge.

It is up to a good criminal attorney to convince the judge and jury that the individual accused of possessing marijuana only did so because he or she was in the process of disposing of it. Examples of situations where this defense has worked include a case where the accused made an immediate statement to the police about his intent to dispose of the drug, a case where the accused was not under the influence of the drug and didn’t display any signs that he had used or sold the drug or was planning on using or selling the drug, a case where the accused discarded the drug because he had a feeling he was being “framed” by an ex-girlfriend, a case where the defendant placed the drugs in his car with the intent of disposing of them after they had been left at his house following a party and a case where the defendant only held the drugs long enough to flush them down the toilet. This defense will obviously only work in certain situations, but a creative attorney may be able to apply it in an unorthodox manner.

It should be noted that this defense does not apply to an individual who, fearing he or she is about to be apprehended, removes marijuana from his or her immediate possession. Because there is such a fine line that separates temporary possession for disposal from this type of scenario, only an experienced drug attorney should attempt to argue this defense, as an inexperienced attorney would likely not fully understand the distinction nor be able to effectively articulate it for a judge or jury.

While it is possible that this defense could apply to a possession of marijuana for sale charge (the most likely case scenario being that an individual was charged with constructive or joint possession of the drug), it would be an unlikely defense, especially if other circumstances (for example, paraphernalia, baggies, scales, etc.) corroborated an intent to sell the drug.

The outstanding criminal attorneys at The Kavinoky Law Firm specialize in California drug crime defense and know how to convince a judge and jury that momentary possession isn’t sufficiently related to the dangers that a possession charge is designed to punish. They have mastered this area of the law and are better equipped than anyone to defend an individual against a personal possession charge. With law offices throughout California (including several in the Los Angeles area), they are conveniently located for anyone in need of a vigorous defense. For more information about the defenses that apply to a personal possession charge, contact them today for a free consultation.

California PCP charges are extremely serious, and there are a number of sentencing enhancements that can substantially increase your potential punishment. One possible sentencing enhancement that can be filed against you in a California PCP case is for prior convictions.

You can’t be punished for any type of sentencing enhancement, including prior convictions, unless you’re convicted of the underlying drug charges.

These are the possible sentencing enhancements that can be filed for prior convictions in a California PCP case:

Code Section Enhancement Punishment 11370.2.b New 182.1, 11378.5, 11379.5, 11379.6, 11380.5 or 11383 with prior 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5 or 11383 Add three years for each prior conviction PC 667.5b For each prior prison commitment
(unless after release the defendant remained free of both prison and felony convictions for five years)

Add one year
11366.5c Prior 11366.5a with new 11366.5a 2-3-4

In addition to sentencing enhancements for priors, the prosecutor in a California PCP case can also file enhancements for weight, firearms, locations and minors.

A California PCP case with sentencing enhancements for prior convictions can result in years in prison, so it’s critical to mount an aggressive defense to these charges. Knowledgeable California drug lawyers from The Kavinoky Law Firm will do everything possible to help you avoid the substantial repercussions of a PCP charge. Please contact a skilled California drug attorney today at 1.800.NO.CUFFS for a free consultation.

Every person who plants, cultivates, harvests, dries or processes any marijuana or any part thereof is guilty of a felony offense in California, which is punishable by sixteen months or two or three years in the state prison, unless one can prevail at a Williamson hearing, showing that the cultivation was for personal use, which may entitle the individual to diversion instead. Because the penalties can be severe for an individual convicted of this offense, it is critical that the accused contacts a skilled California drug attorney immediately upon his or her arrest who can begin building an aggressive defense.

“Cultivating” means fostering the growth of the marijuana. Cultivating marijuana is considered a continuing offense, in that it continues at least during the period of cultivation, so one need not be physically present at the site of cultivation to be guilty of this offense. “Harvesting” means gathering the crops of the marijuana. “Processing” means changing the form of the marijuana plant to make it useful for smoking or other narcotic purposes. If it is proven that an individual participated in one of these activities (or that he or she planted or dried marijuana) and that he or she knew it was a marijuana plant or some part of a marijuana plant, he or she may be convicted of this offense.

There are a number of defenses that apply to this crime that an experienced criminal defense lawyer is familiar with and knows how to effectively convey to a judge and jury. The outstanding attorneys at The Kavinoky Law Firm have mastered this area of the law and know how to meticulously review a case to spot these defenses as well as the other issues that may raise concerns about the legitimacy of their client’s arrest.

Some of the most common defenses to cultivating marijuana include lack of knowledge, a medical marijuana exemption and illegal search and seizure. These are only a sample of some of the defenses that are applicable to this charge – a seasoned criminal attorney will know a variety of additional defenses that he or she may choose to employ based on the facts of each individual’s case.

Lack of knowledge might come into play if the marijuana plants were growing outside or were tucked away in an otherwise unused part of the property and the accused was unaware of the plant’s presence or species. This may be the case where an individual is renting a property, unaware of what a previous tenant was growing or may apply to a family member who was growing the drug without the knowledge of others who also resided on the property. Once again, this is just an example of when this defense might apply – a savvy attorney will know if this defense will work when he or she reviews one’s specific case. It should be noted that an owner of land may be charged as an aider and abettor for marijuana cultivation if he or she had knowledge of the plant’s presence.

A medical marijuana defense may be argued in situations where a patient or a patient’s caregiver has received a recommendation from a doctor stating that marijuana use would benefit the patient’s health. Using, cultivating and transporting marijuana are permitted under these circumstances, as long as the individual participating in these activities abides by the laws that regulate such uses.

A practiced criminal attorney will always scrutinize a case for any illegal search and seizure issues, as this type of defense is the most successful in having one’s case dismissed. Whether the police had a warrant, whether the warrant was based on legitimate information and whether there was sufficient probable cause to support the search are all issues that the defense attorney will consider when building a defense.

The exceptional attorneys at The Kavinoky Law Firm are here to help. They specialize in California’s drug laws and the defenses that apply to these laws and know what it takes to win. Contact them today for a free case evaluation and for unparalleled representation.

Minors and California Methamphetamine Cases

Certain factors called sentencing enhancements can be added to California methamphetamine cases that can add years to the potential sentence. The involvement or presence of minors is one sentencing enhancement that can be filed in a meth case.

Because the repercussions of a California methamphetamine charge are so severe, it’s imperative to have a skilled attorney on your side. A knowledgeable California drug lawyer from The Kavinoky Law Firm thoroughly understands the complexities of a methamphetamine charge and will aggressively defend you against both the underlying charges and any sentencing enhancements.

A prosecutor must prove both the underlying drug charge and any sentencing enhancements beyond a reasonable doubt in order for you to receive the additional punishment. If you aren’t convicted of the underlying charge, you cannot be punished for the sentencing enhancement.

California sentencing guidelines spell out a lower term, a middle term and an upper term for certain offenses. The sentence that is meted out depends on aggravating and mitigating factors — information that prompts the judge to treat you more harshly or leniently — and the facts of each case. The sentence for each offense or enhancement is spelled out in months or years in prison.

The California Health and Safety Code allows for the following sentencing enhancements to be filed in methamphetamine cases involving minors:

* 11380 — Utilizing, soliciting, furnishing a minor re: methamphetamine — 3-6-9
* 11379.7 — Manufacturing methamphetamine (H&S 11379.6) or possession of precursor chemicals with intent to manufacture (H&S 11383) with a child under 16 present, add two years. If a child under 16 suffers great bodily injury during the commission of these offenses, add five years.

California methamphetamine charges involving minors can bring sentencing enhancements that add years to a prison commitment, so it’s critical to aggressively fight both the underlying drug charge and any enhancements.

An experienced California drug defense lawyer from The Kavinoky Law Firm can thoroughly review your methamphetamine case and help you determine your next step. Please contact a skilled defense attorney today at 1.800.NO.CUFFS for a free consultation.