Clandestine Labs – Fines and Civil Recoveries

In addition to the criminal charges that you can face in a California clandestine labs case, you can also be required to pay many thousands of dollars in fines and civil recoveries intended to go toward the cost of cleaning up hazardous materials at drug labs.

If you’re convicted of California Health and Safety Code section 11379.6, in addition to a three- to seven-year prison sentence, you can also be ordered to pay a fine of $50,000 toward drug lab cleanup.

Under California Health and Safety Code section 11100.05, you can be required to pay an additional drug lab cleanup fine of $10,000 to $100,000, depending on the offense. This money is paid into the California Clandestine Drug Lab Clean-up Account.

California Health and Safety Code section 11470.1 dictates that anyone who manufactures a controlled substance, assists someone else in doing so, or profits from the operation can be ordered to pay civil damages equal to the cost of cleaning up the lab. Unfortunately, the state can sue you to recover these costs even if you are never charged with or convicted of any criminal offense.

Because the state will seek to recover its costs under H&S section 11470.1 in a civil action, the standard of proof is far lower than it is in criminal court. Whereas in criminal court you must be found guilty “beyond a reasonable doubt,” in civil court all that’s needed is a “preponderance of the evidence.” This standard of proof is commonly described as “50 percent plus a feather,” meaning that it must be just slightly more evident that one party is responsible in order for the court to enter a judgment against that party. In these actions, the state has the burden of proof.

While the state can civil damages under H&S section 11470.1 independently of a criminal case, under H&S section 11470.2b, authorities can seek to recover the cost of cleanup in a civil suit that’s concurrent with the criminal case. The standard of proof is the same.

Clearly, allegations of operating a clandestine drug lab can threaten your finances as well as your freedom. Therefore, it’s critical to have an experienced California lawyer on your side to protect you from the substantial consequences of a clandestine lab allegation. Please contact the knowledgeable California drug lawyers from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Although the Controlled Substances Act (which is federal law) still states that all marijuana use illegal, several states, including California, have enacted laws that permit its use for medicinal purposes. This issue is still widely controversial, however, as many don’t believe that smoking marijuana has any legitimate medicinal value, arguing that legalizing marijuana for medical use is simply a smokescreen which will allow for easier access to a dangerous substance. These opposing groups maintain that Marinol – a pill containing THC (the primary active ingredient in marijuana) – is the best way to get a safe and legal dose of the ingredient that is reportedly helpful to those experiencing medical problems.

Regardless of how it is publicly viewed, the fact is that medical marijuana is legal in this state. However, the burden of proving that marijuana was used, grown or distributed strictly for medicinal purposes often lies in the hands of the accused, which is why it is so important that an individual accused of participating in one of these activities contacts a California drug crime defense attorney from The Kavinoky Law Firm who knows how to effectively and successfully convey this legitimate defense.

Cannabis sativa has been used therapeutically from the earliest records, nearly 5,000 years ago to the present day and its products have been widely noted for their effects, both physiological and psychological, throughout the world. It is noted for its ability to relieve the nausea and vomiting associated with chemotherapy for cancer patients, to assist with loss of appetite with AIDS patients and to help those who have certain eye conditions. These health benefits explain why several states have enacted legislation that permits marijuana use under very specific conditions.

It should first be noted that federal laws and rulings continue to hold that all marijuana use – marijuana cultivation, distribution and consumption – is illegal and won’t be tolerated. The Supreme Court has determined that marijuana must remain a schedule 1 drug under the Controlled Substances Act, which means that they recognize no medical value for the drug. Unless that changes, any activity related to marijuana use will continue to be a federal crime.

However, California, in addition to many other states, has enacted its own legislation that permits medical marijuana use under specific conditions. In 1996, California passed Proposition 215 (also known as the Compassionate Use Act), which has been codified in California’s Health and Safety Code as section 11362.5. This section allows seriously ill Californians to use marijuana, provided they first obtain a doctor’s recommendation.

Recognizing that Proposition 215 didn’t protect users from arrest (it only gave them a defense to use in court), the legislature enacted Senate Bill 420, codified in California’s Health and Safety Code, sections 11362.7 and 11362.8. The Bill was designed to establish a voluntary, confidential patient registry, administered by the Department of Health Services. This California law regulates medical marijuana use by patients and caregivers, city and countywide, providing strict guidelines that such individuals must follow in order to avoid prosecution under this marijuana use exception.

Although these laws now exist in California, designed to decriminalize medical marijuana use, cultivation and distribution, there are still problems within the system, making it absolutely necessary for an individual accused of one of these activities to hire an attorney who knows how to effectively convey this legitimate defense to a judge and jury. The skilled criminal attorneys at The Kavinoky Law Firm specialize in California drug crime defense and have mastered the laws that apply to medicinal marijuana use. They keep on top of the latest rulings and defenses that are relevant to this specific area of the law in an effort to provide their clients with the most comprehensive defenses available. With law offices throughout California, including several in Los Angeles, they are conveniently located for anyone in need of an exceptional criminal defense lawyer. For unsurpassed legal advice from a firm dedicated to helping those charged with drug offenses, contact The Kavinoky Law Firm today for a free consultation.

Powder Cocaine Charges with Weight Enhancements

California cocaine charges are extremely serious allegations that carry substantial punishment, and the repercussions can be made even harsher by sentencing enhancements — factors that prompt the court to impose additional consequences.

One possible sentencing enhancement in a California cocaine case is a weight enhancement. If you’re facing a California cocaine charge with a weight enhancement, you need a qualified drug defense lawyer fighting your case. Experienced California drug attorneys from The Kavinoky Law Firm is ready to review your case and build a strong defense strategy.

The prosecutor must prove your guilt in both the underlying cocaine charge and the weight enhancement in order to prompt the court to impose the additional punishment. You cannot be convicted of, or punished for, the weight enhancement without being found guilty of the underlying drug charge.

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

Code Section Weight Sentence 1203.073b1 Two ounces of a substance containing cocaine or one ounce of pure cocaine No probation, judge has discretion 11370.4a1 More than one kilogram (approx. 2.2 lbs) Add three years 11370.4a2 More than four kilo 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

Fortunately, experienced California defense attorneys can aggressively defend both a cocaine charge and the accompanying weight enhancement. One possible defense strategy that your defense attorney may employ is a motion to suppress evidence. If the drug evidence against you wasn’t properly obtained, it cannot be used to convict you.

In some California cocaine cases, you may be eligible for alternative sentencing, which may include a deferred entry of judgment (DEJ), Proposition 36, or drug court. Your defense lawyer can review your case and determine whether any of these sentencing alternatives may be an option in your California cocaine case.

If you’re facing a California cocaine charge with weight enhancements, you need a knowledgeable defense lawyer aggressively fighting for your freedom. A skilled California drug lawyer from The Kavinoky Law Firm can review your cocaine case and develop a comprehensive defense strategy anywhere in the state. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Motion to recover evidence

Medical marijuana cases are unlike other marijuana-related offenses, in that, if the accused can prove that the marijuana was legitimately possessed or cultivated for medicinal purposes, its possession, use or cultivation will be excused. If this is established, it may be possible for the patient and/or his or her primary caregiver to recover the marijuana that was therefore improperly seized or to recover damages to cover the expenses to replant or repurchase the drug. Retaining an experienced attorney is the key to prevailing on this type of motion.

Motions for a return of property may be filed if no charges were ultimately filed following one’s arrest for possessing or cultivating marijuana, if the accused succeeded in having his or her charges dismissed during a pre-trial or Mower hearing or if he or she was acquitted following a judge or jury trial. This type of motion would be to recover one’s improperly seized marijuana, whether the marijuana was confiscated pursuant to a warrant or not.

Alternatively, the accused could initiate a civil lawsuit to recover monetary damages in the event that the seized marijuana had spoiled or otherwise been harmed or improperly destroyed by the police. The trusted and compassionate criminal attorneys at The Kavinoky Law Firm may be able to refer a skilled civil attorney should the accused choose to pursue this approach.

Another similar type of criminal motion that an individual who has been cleared of the legal charges associated with his medical marijuana possession or cultivation may raise is a motion for a determination of factual innocence. If it can be proven that no reasonable cause existed to believe that the accused committed the offense for which he or she was arrested, he or she may be able to have the court declare him or her factually innocent of the charges, which will result in the sealing and subsequent destruction of the arrest report and all related records.

Motions for the return of property and for a declaration of factual innocence are regulated by very technical and specific laws which must be strictly adhered to in order to prevail and have one’s marijuana returned. Because of this fact, it is imperative that an individual seeking return of his or her medical marijuana contacts one of the experienced attorneys at The Kavinoky Law Firm who will ensure that all procedures and filing requirements are properly met in an effort to have one’s property returned as quickly and inexpensively as possible. They have law offices throughout California, including several in and around the Los Angeles area, making them conveniently located for anyone in need of their exceptional legal advice, representation or other services. To learn more about how to successfully have one’s medical marijuana returned or about how to file a declaration of factual innocence, contact these outstanding attorneys today for a free consultation.

Possession of marijuana for sale – physical, constructive and joint possession

Possession of marijuana for sale, in California, is a felony that carries serious penalties. While there are a number of defenses that are applicable to this crime, only a skilled criminal defense lawyer who specializes in California drug defense will be prepared and qualified to present them in an effective manner.

Possession of marijuana for sale has three “elements” or facts that must be proven to convict the accused. The accused must (1) possess the marijuana, (2) have the intent to sell the marijuana and (3) have knowledge of both its presence and illegal character. “Possession” in and of itself is a gray area, as there are several types of possession that law enforcement and the prosecution can use to prove this offense. The accused can have physical (otherwise known as actual) possession, constructive possession or joint possession of the drug and any of these will be sufficient to prove the accused guilty. This is one of the reasons why an experienced criminal attorney who regularly practices this area of law is so invaluable, as he or she knows how to rebut this issue.

Physical or actual possession means that the accused individual knowingly exercised direct physical control over the drug – that he or she actually had the marijuana on his or her person. This type of possession is probably the most difficult to defend, as people tend to know what items they carry with them. However, medical marijuana use, temporary possession for disposal and illegal search and seizure are all defenses that may be applicable to this type of possession.

Constructive possession refers to situations where the accused individual didn’t have actual or physical control over the drug but instead knowingly exercised control over or had the right to control the marijuana either directly or through another person or persons. Constructive possession, along with physical and joint possession, may be proven through circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it). A specific example demonstrating constructive possession (though not specific to a possession for sale case) lies in a case where an individual was found to have exercised control over marijuana because he was found on a remote parcel of land where marijuana plants were being grown, where there was evidence that the plants had been cared for on a regular basis and where the owner of the property had been hospitalized during the time of the arrest. Lack of knowledge, entrapment and the above defenses are most likely to be argued when constructive possession is alleged.

Joint possession will apply in situations where two or more people may be guilty of possessing marijuana with the intent to sell it. Joint control or possession will be inferred under a variety of circumstances. An example includes a case where the defendant was found barefoot in the codefendant’s house where drugs were found, that his suit and shoes were found in a closet and that there were traces of marijuana in his shirt and pants pockets. This circumstantial evidence was enough to support the belief that he and the codefendant jointly occupied the premises and had knowledge of the presence of marijuana and of its narcotic character, that they both had access to the home and that they shared joint control of the home. Lack of knowledge, medical marijuana use, temporary possession for disposal and illegal search and seizure will be the defenses most likely to apply to joint possession.

The outstanding attorneys at The Kavinoky Law Firm have mastered these defenses, as well as a variety of others, that are applicable to “possession of marijuana for sale” offenses. They excel in articulating them to judges and jurors in ways that successfully tell their client’s side of the story. With law offices in Los Angeles and throughout the state, they are easily accessible for anyone in need of an exceptional California drug defense attorney. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.

Crack and Base Cocaine Charges Involving Minors

The punishment for a California crack or cocaine base conviction can be significantly increased by sentencing enhancements based on the involvement of minors. If you’ve been charged with a California cocaine base or crack charge with a sentencing enhancement alleging a minor was involved, you need a qualified drug defense lawyer on your side.

Knowledgeable California drug attorneys from The Kavinoky Law Firm can design a comprehensive defense strategy designed to protect you from the substantial repercussions of a cocaine base or crack charge and any accompanying sentencing enhancements.

You can’t be punished for any sentencing enhancement if the prosecutor is unable to convict you of the underlying narcotics charge. Also, the prosecutor must prove your guilt in the sentencing enhancement beyond a reasonable doubt, or you cannot receive additional punishment.

These are the sentencing enhancements that can be filed in a California cocaine base or crack case based on the alleged involvement of minors:

Code Section Enhancement Sentence 11353 Induce minor to possess, possess for sale, sell, etc. OR hire minor to sell, etc. OR sell, etc. to minor 3-6-9 11353.1(a)(1) If 11353 at church, youth center, day care center, pool, etc. Add one full year 11353.1(a)(2) If 11353 and on or near school Add two full years 11353.1(a)(3) If 11353 and minor four years or more younger than defendant Add 1-2-3 11370b If 11353 (sale) No probation, no suspension, no discretion PC 1170.72 If 11353, 11353.5, 11353.7, 11354, 11361, 11380, or 11353.1(a)(3), 11353.6, 11380. 1(a)(3) and minor is 11 years old or younger Circumstance in aggravation for sentencing

The allegation that a California crack or cocaine base offense involved a minor is a serious sentencing enhancement that can add years to your punishment if proven, so it’s essential to aggressively fight these allegations. Experienced California defense attorneys from The Kavinoky Law Firm are ready to review your case and prepare a comprehensive strategy. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Clandestine Labs and Locations

In California, a conviction for operating or contributing to a clandestine drug lab carries extremely harsh repercussions, and factors called sentencing enhancements can increase the consequences even more. One type of sentencing enhancement that can be filed in cases dealing with California clandestine labs is based on the location of the alleged drug manufacturing operation. If you’re charged with operating a clandestine lab, with or without sentencing enhancements, a knowledgeable California defense attorneys from The Kavinoky Law Firm has the skills needed to aggressively fight for your rights.

Most sentencing enhancements in California drug cases carry the same constitutional protections that apply to the underlying drug charges – your guilt must be proven beyond a reasonable doubt or you cannot receive additional punishment. Also, you cannot be punished for a sentencing enhancement if you aren’t convicted of the underlying drug charge.

Many California felony charges and sentencing enhancements are punishable by a range of prison terms referred to as the lower, the middle and the upper term. The sentence that the judge hands down will depend on aggravating and mitigating factors – issues that prompt the court to treat you more harshly or leniently.

These are the possible sentencing enhancements based on location that can be filed in a California clandestine lab case:

Code Section Enhancement Sentence 11366.5a Rents or makes available for manufacture Misdemeanor or 16-2-3 11366.6 Utilizing fortified location to manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11353.6 Manufacture on school grounds or within 1,000 feet of school (in a public place or place legally open to minors) when school was in session or when children using the school facility Add 3-4-5 11380.1a1 If 11380 and offense occurs upon ground of playground, church, child care, pool, when open or when minors using facility Add one year

A sentencing enhancement based on location can add many years to an already substantial prison sentence, so it’s in your best interests to aggressively fight both the clandestine lab charges and any sentencing enhancements.

Knowledgeable California defense attorneys from The Kavinoky Law Firm are well-versed in aggressive defenses to clandestine lab charges. Please contact a skilled California drug lawyer today at 1.800.NO.CUFFS for a free consultation.

California not only prosecutes those who use, sell, transport or cultivate marijuana but also prosecutes those who permit such activities on their property. Engaging in the opening, maintaining, renting or leasing of a place used for marijuana-related activities or selling items that will be used to unlawfully manufacture, process or prepare marijuana will be prosecuted as either misdemeanor or felony offenses at the prosecutor’s discretion. An individual who is accused of any of these offenses should therefore immediately contact a skilled California drug crime defense attorney who knows how to persuade a prosecutor that a misdemeanor filing is appropriate and who also knows how to then persuade a judge to further reduce or dismiss that charge.

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using marijuana faces either a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison. In order to convict an individual of this offense, the prosecutor must prove that he or she opened or maintained a place and, in doing so, had the specific intent to sell, give away or use marijuana on a repetitive or continuous basis. Because this law deals with “using” marijuana, it isn’t necessary that marijuana be sold on the premises, as an individual accused of this offense can be so charged by simply providing a place for marijuana users to gather.

A single or isolated instance of conduct that is prohibited under this law will not suffice for prosecution under this charge, as “maintaining” a place necessarily implies a continuous or ongoing activity that takes place on the property. Similarly, this law does not apply to repeated solo use in one’s own home.

Every person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, that property for the purpose of unlawfully manufacturing, storing, or distributing marijuana for sale or distribution faces either a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison. An individual who is convicted of this offense for the second time faces an automatic felony, punishable by two, three or four years in the state prison. In order to convict the accused of this offense, the prosecutor must prove that the owner had knowledge that the manufacturing of the marijuana was for the purpose of selling or distributing it – absent that knowledge, one can’t be convicted of this offense for simply making a property available to manufacture marijuana.

In addition to the jail or prison terms that may accompany these offenses, every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away marijuana will be declared a “nuisance,” and will be subject to forfeiture.

Any retailer or wholesaler who sells marijuana or a laboratory apparatus or device with the knowledge or intent that it will be used to unlawfully manufacture, compound, convert, process, or prepare marijuana for unlawful sale or distribution faces a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison and a maximum fine of $25,000.

Because the stakes are so high, it is mandatory that an individual accused of one of these offenses hires an attorney who is qualified to defend against these charges. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered everything related to California marijuana defense and know the most compelling arguments to have their clients’ charges either reduced in an effort to provide their clients with the opportunity to receive drug treatment as an alternative sentencing option to jail or prison or dismissed entirely. To learn more, contact these unparalleled attorneys today for a free consultation.

Powder Cocaine Charges and Prior Convictions

California cocaine charges carry extremely harsh penalties, and factors called sentencing enhancements can add substantially to your prison sentence. One possible sentencing enhancement in a California cocaine case is for prior convictions.

If you’re facing a California cocaine charge and have prior drug convictions, you need a defense lawyer who thoroughly understands narcotics law and will fight fearlessly for your rights. Knowledgeable California defense lawyers from The Kavinoky Law Firm has the skills needed to aggressively fight for your freedom.

In order to punish you for a sentencing enhancement in a California cocaine case, the court must find you guilty beyond a reasonable doubt of both the underlying drug charge and the enhancement. If you’re not convicted of the underlying drug offense, you cannot be punished for the sentencing enhancement.

Under California Health & Safety Code section 11370.2a, if you’re convicted of cocaine sale or possession for sale, you can be sentenced to an additional three years for each prior conviction for cocaine possession for sale (11351), possession of cocaine base for sale (11351.5), sale (11352), 11378 (possession of meth for sale), 11379 (meth sale), 11379.6 (manufacture), 11380.5 (offenses in public parks or beaches), 11383 (possession of chemicals with intent to manufacture).

If you’re convicted of 11350 (cocaine possession), possession for sale (11351), sale (11352), solicitation of a minor (11353), or agreeing to sell a controlled substance (11355), and have any prior felony narcotics conviction, you cannot receive probation, although the judge has discretion in this matter.

Under California Penal Code section 1203.07 (a)(11), if you’re convicted of sale or possession for sale and have a prior conviction for either of those offenses, you cannot receive probation. The judge has no discretion in this matter.

Under California Penal Code section 667.5b, you can receive an additional year in prison for any prior prison commitment unless five years have passed since you were released from prison and convicted of a felony.

California Health & Safety Code section 11366.5c dictates that if you’re convicted of managing a place for the manufacture, storage, and/or distribution of a controlled substance (11366.5a) and have a prior conviction for the same offense, you’ll receive an additional two, three, or four years in prison.

Your lawyer may challenge the validity of your prior convictions as part of a comprehensive defense strategy. If the court opts to strike one or more prior drug convictions from the record or otherwise invalidate the convictions, you cannot receive additional punishment for them.

If you’re facing a California powder cocaine charge and have prior convictions, you need skilled California defense lawyers fighting to safeguard your freedom. To learn more about aggressive defenses to California cocaine charges, please contact a qualified defense lawyer from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation.

Mower hearings

When an individual in California is arrested for possessing, possessing for sale, cultivating or engaging in any other activity that relates to marijuana but is doing so for medical purposes, he or she may have a valid, legal defense. It should be noted that although The Compassionate Use Act only permits patients and their primary caregivers to possess and cultivate marijuana for personal medical use, any charges that relate to marijuana use may be applicable, if the defense attorney can convince the judge and/or jury that the activity was related to personal medical use and, as a result, the charges were inappropriately filed. In order to successfully plead this defense, it is imperative that the accused hires an experienced California criminal defense lawyer who has a thorough understanding of the laws that regulate medical marijuana use and the types of defenses that are applicable to them.

A Mower hearing provides an avenue to raise a medical marijuana defense. A Mower hearing is a type of pre-trial proceeding (equivalent to a motion to dismiss) that entitles the accused to argue his or her medical defense before going through the rigors of a trial, holding the prosecutor to a higher burden than he or she would normally face during the pre-trial phase in the criminal court process.

Patients and caregivers who are arrested for and charged with possession or cultivation of any amount of cannabis can file this type of motion to have their charges dismissed. This type of hearing arises out of a California Supreme Court case that was decided in July 2002 (People v. Mower). That case held that The Compassionate Use Act (also known as Proposition 215) provides more than just an affirmative defense (like self-defense in a murder trial) in that it actually provides those who are entitled to argue it with qualified immunity from prosecution.

“Mower” ruled that, in accordance with Prop. 215, patients and their caregivers should be protected from unnecessary prosecution, stating that possession and cultivation of marijuana (for medical purposes) is no more criminal than the possession and acquisition of any legal drug issued with a doctor’s prescription.

The court established a two-step process for those who are inappropriately arrested. First, they are entitled to a pre-trial hearing (now known as a Mower hearing) where they can ask the court to dismiss their case if they can establish by a “preponderance of the evidence” (which means that it is more likely than not) that they are, in fact, legal patients or caregivers. If that fails and they are held to answer at trial, they must only raise a “reasonable doubt” to prove their innocence. Unfortunately, much like the laws that are designed to protect patients and caregivers from overzealous law enforcement, this ruling does little to protect those individuals from arrest in the first place, since many police believe that they should still be arresting those who engage in any marijuana-related activity, leaving it to the courts to decide their innocence or guilt.

The exceptional criminal attorneys at The Kavinoky Law Firm have mastered this area of the law and are well qualified to successfully prevail in a Mower hearing, based on their in-depth knowledge of the Mower case, The Compassionate Use Act and the policies behind each. They are dedicated to helping their clients who have been unfairly targeted by the police put this frightening and frustrating experience behind them as compassionately, quickly and inexpensively as possible. For the most trusted legal advice and unsurpassed representation, contact them today for a free consultation.