Southern California Defense Blog

Most people would likely agree that drug crimes were a major contributing factor in the alarming increase in the number of Americans currently incarcerated in the various penal institutions in the country. The overpopulation in our prisons is partly due to the increase in drug crime rate. At Wallin & Klarich, our drug crime attorneys have seen a significant increase since our firm started over 30 years ago.

America’s so called “war on drugs” perhaps began when then President Nixon declared to Congress that drugs were a “serious national threat.” Nixon officially declares a "war on drugs," identifying drug abuse as "public enemy No. 1." It was also Nixon who created the Drug Enforcement Agency (DEA) in 1971. In 1986, President Ronald Regan appropriated $1.7 billion dollars as part of the Anti-Drug Abuse Act of 1986 to fight the drug war. The bill also created mandatory minimum penalties for drug crimes, which are increasingly criticized for promoting significant racial disparities in the prison population because of the differences in sentencing for crack and powder cocaine.

Continue reading "Treatment of Substance Abuse For Prisoners Can Lead To Less Drug Crime And A Lower Prison Population" »

According to a report by KTLA, Shaun Rothwell, 30, Shane Dearth, 29, and Thomas Nichols, 30, all of Los Angeles, were arrested in Torrance, California. The three were taken into custody after a marijuana hydroponics farm was found by police in a building located on the 17100 block of Figueroa Street in Gardena. Rothwell, Dearth, and Nichols were each charged with “marijuana cultivation, possession of marijuana for sale and theft of electricity” according to the story. The police recovered over 300 marijuana plants and 15 pounds of marijuana ready for sale.

Drug charges like the ones about can lead to serious penalties if a person is found guilty. These types of drug charges will be felonies due to the volume of drugs found and the intent to sell the drugs. A conviction can be punishable by up to 3 years in state prison.

Continue reading "Drug Charges - California Health and Safety Code 11358" »

Under California law, a person is recognized to have “possession” of a tangible object when they have personal charge or control of, or exercise the right of ownership or management over the tangible object.

It is important to understand that possession of a controlled substance in California may be actual or constructive. Constructive possession is not as straightforward as actual possession, but constitutes possession nonetheless.

"Constructive possession" can apply in situations where the controlled substance is not found on the defendant's person (pockets, jacket, etc). Although there is no actual possession, constructive possession can occur if actual possession of the controlled substance can be inferred from the surrounding circumstances.

Continue reading "What Can Constitute "Possession" for the Purposes of Possession of a Controlled Substance? Health and Safety Code Sections 11350 & 11377" »

How an Experienced Southern California Drug Defense Attorney Can Help You

If the police detain you for any reason and you are caught with drugs you may be charged with drug possession. But, if the police believe that you possessed the drugs in order to sell them, then that is a separate charge called “possession for sale.” What would give police the proof that you intended to sell the drugs as opposed to merely possess them for your own personal use? Some of the many factors include the amount of currency the defendant had at the time of arrest, the quantity of drugs possessed, whether the drugs were individually packaged, whether the defendant was in possession of drug paraphernalia, and whether the location where the suspect was arrested is a high narcotics sales area.

Although possession and possession for sale are both serious charges, there are many reasons why avoiding a possession for sale charge is critical. For example, many people charged with possession are eligible for a special diversion program that if successfully completed, could result in a dismissal of the charges altogether. These diversion programs are usually not available for possession for sale charges because those diversion classes are meant to help users, not sellers.

Continue reading "The Difference between Possession of Drugs and Possession of Drugs for Sale Charges - California Health and Safety Code Section 11350 & 11351" »

Anyone charged with possession for sale of marijuana should speak with an experienced drug possession attorney in Southern California. Possession for sale of marijuana is a serious crime that comes with harsh penalties and consequences.

California Health and Safety Code Section 11359 makes it a felony for anyone to unlawfully possess marijuana for the purpose of sales. To be convicted under Section 11359, it needs to be proven that the defendant unlawfully possessed marijuana; the defendant knew of its presence; the defendant knew of the substance’s nature as a controlled substance; the defendant possessed a usable amount; and that at the time of the possession, the defendant had the intent to sell it.

With a knowledgeable criminal defense attorney on your side, you can raise certain defenses against this charge. A viable defense that may be available to you is submitting a motion to the court to suppress evidence of confiscated marijuana. If the evidence is shown to have been illegally obtained, the judge may decide not to admit it as evidence. This would likely result in the dismissal of the case against you. You may also be able to challenge the individual elements of the charge by claiming a lack of possession, knowledge of the drug’s presence or nature, presence of a usable amount, or the intent to sell.

Continue reading "Possession for Sale of Marijuana - California Health and Safety Code Section 11359" »

California Health and Safety Code Section 11377 makes methamphetamine (“meth”) possession illegal. Meth Possession is a serious crime with serious penalties. If you are charged with meth possession, it is important that you speak to an experienced criminal defense attorney to get you the best possible result in your case.

Meth possession means that you had physical custody of the meth. You must also know the nature of meth as a controlled substance to be convicted. The amount of meth also has to be usable. If this can be proven, you may face a conviction for meth possession.

Having an experienced attorney can help you bring up defenses to your charge. There are many defenses to meth possession. The obvious one is that the defendant did not have physical control over the substance. Furthermore, the defendant cannot be convicted of possession of methamphetamine if he/she was not aware or had knowledge that the methamphetamine was in their presence or that it was a controlled substance.

There is also the momentary meth possession defense. Momentary possession requires that the defendant only possessed the substance for a momentary or transitory period; the possession of methamphetamine was for purposes of abandoning it, disposing of it or to destroy it.

Continue reading "I am Accused of Meth Possession - What Should I Do? - California Health and Safety Code Section 11377" »

California Health & Safety Code Section 11350 is a law that makes it illegal to possess various types of drugs as defined within the health and safety code.

In order to be convicted of possession of a controlled substance, the prosecution must prove that you unlawfully possessed a controlled substance, that you knew of its presence, that you knew of the substance’s nature or character as a controlled substance, what the controlled substance was, and that the quantity possessed was a usable amount. Possession means that a person has physical custody and control over the substance.

One of the many defenses to possession of a controlled substance is momentary/transitory possession. In order to successfully assert the defense of momentary/transitory possession, it must be shown that the defendant possessed the controlled substance only for a momentary or transitory period, that the defendant possessed the controlled substance in order to abandon, dispose of, or destroy it, and that the defendant did not intend to prevent law enforcement officials from obtaining the controlled substance. Of course, because every case is unique it is vital that you speak with an experienced criminal defense attorney about the particular facts of your case and any defense that may be available to you.

Continue reading "I am Accused of Possession of a Controlled Substance - What Should I Do? - California Health & Safety Code Section 11350" »

On October 19th, the United States Department of Justice issued a memorandum to the United States Attorneys in California detailing a shift in the Department’s policy regarding the investigation and prosecution of federal drug offenses in California. Although the memo is favorable to California’s marijuana laws, in no way does it permit the cultivation, possession, use or distribution of marijuana. The federal Controlled Substances Act continues to make those types of acts illegal.

Specifically, the memo dictates that “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana” should not be the Department’s main focus. In fact, the Justice Department will continue to prosecute those individuals or entities relying on state marijuana laws as a pretext for the illegal distribution of marijuana. Most importantly, the memo states that individuals who are in compliance with medical marijuana laws can still be prosecuted in federal court if it serves an important federal interest. Clearly, this exception leaves the door wide open to prosecute individuals regardless of the new Justice Department guidelines.

Continue reading "U.S. Justice Department Issues Memorandum Regarding State Marijuana Laws" »

The California appellate court has held that even though a vehicle does in fact have a temporary operating permit displayed somewhere on the vehicle, if the police officer does not see the temporary operating permit, and the vehicle does not have license plates, then the stop of the vehicle is legal. People v. Dotson ﴾3rd Dist., Nov. 30, 2009﴿ 2009 Cal. App. LEXIS 1904﴿.

In Dotson, the defendant, a convicted felon, was found to be in possession of a firearm, ammunition, and methamphetamine when a police officer stopped his vehicle. Although the vehicle had a temporary operating permit, an arresting officer had testified that at the time of the stop he saw that defendant's vehicle did not have license plates. In fact, in a dimly lit parking lot, the officer had a hard time identifying even the color of the vehicle. He saw that there were no license plates, so he made the stop. The defendant argued that the officer lacked reasonable suspicion to make an investigatory stop since the defendant’s car had a temporary operating permit attached to the rear window.

Continue reading "Police Can Legally Stop a Vehicle in California Even If a Temporary Operating Permit Attached To a Rear Window " »

Why Having an Experienced Drug Offense Attorney Can Mean the Difference Between Jail and Freedom

A recent California Court of Appeals decision, People v. Archer, held that, in medical marijuana possession cases, the jury must be informed that the patient has a right to possess an amount that is reasonably related to the patient’s current medical needs.

The California Legislature recently enacted Health and Safety Code section 11362.77 of Medical Marijuana Program Act (MMPA), which provides that the “legal limit” for possessing medical marijuana was eight ounces. However, before the legislatures enacted section 11362.77, the only relevant section as to how much marijuana a medical marijuana patient could possess (or cultivate) was section 11362.5 of the California Health and Safety Code. Under section 11362.5, subdivision (d) of the Heath and Safety Code, the only qualification concerning the amount of marijuana that a medical marijuana patient could possess (or cultivate) was that the marijuana be for the "personal medical purposes" of the patient. (section 11362.5, subd. (d).)

Therefore, assuming section 11362.77, subdivision (a) of the MMPA, is unconstitutional, as the parties jointly contended, the relevant law on the issue of the amount of marijuana Archer could possess would be section 11362.5 of the California Health and Safety Code and the cases interpreting that statute.

As noted, courts have interpreted this qualification to mean a reasonable amount: "[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the 'patient's current medical needs' [is], of course . . . a factual question to be determined by [the jury]." (People v. Trippet, 56 Cal.App.4th at p. 1549.)

Here, the evidence in the record showed Archer was using about a half pound of medical marijuana each month in April 2006, mostly by ingesting it, and that he possessed about 1.72 pounds of marijuana—or about a three-month supply of medical marijuana—when police entered his home and confiscated it and his plants. There was no evidence Archer possessed the 1.72 pounds of marijuana for purposes other than for his own personal medical use.

Continue reading "Possession of Medical Marijuana is Limited to the Patient's Current Medical Needs" »

A recent California Court of Appeals decision in People v. Hirata held that a search warrant is invalid after the passing of a substantial period of time. In this case, the period of time was 84 days.

The defendant (Hirata) was charged with possessing drugs and being part of a drug conspiracy ring. Investigators had built substantial evidence against Hirata and a number of other co-conspirators. Armed with this information, the authorities put together an affidavit and were able to secure a search warrant for a number of the residences believed to be a part of the conspiracy. The search warrant was signed and put into effect on June 14; however, it was not executed (when the search actually took place) until September 4.

Continue reading "Good Faith Exception to the Exclusionary Rule Does Not Apply Where the Search Warrant is 84 Days Old - Penal Code Section 1538.5" »

The Issue of Possession of Marijuana for Personal Medical Needs, Versus, Possession of Marijuana for the Needs of Others

Defendant, Nathaniel Archer, was found guilty of cultivation of marijuana in violation of Health and Safety Code section 11358, a felony, and of simple possession of marijuana in violation of section 11357(a). On appeal, the parties were in agreement that the trial court erred when it included the numerical limits set forth in section 11362.77, subdivision (a) of the Medical Marijuana Program Act (MMPA) in instructing the jury regarding the amount of medical marijuana that Archer could lawfully possess and/or cultivate because this section unlawfully amends the Compassionate Use Act (section 11362.5) (CUA) passed by voters in 1996 as Proposition 215. On appeal, the parties disagreed as to whether the error was harmless.

Defendant contented that because he possessed and/or cultivated an amount of marijuana in excess of the numerical limits set forth in section 11362.77, subdivision (a), his convictions were not based on a determination of his medical marijuana needs of and at least two of his "patients" who had designated him as their "primary caregiver" within the meaning of section 11362.5, subdivision (e).

The People argued that because Defendant admitted growing marijuana for at least four other people, in addition to himself, and because as a matter of law he does not qualify as a primary caregiver for the only two qualified patients he identified at trial. The Defendant did not present any evidence to show he was the primary caregiver for any of them, including the two that testified on his behalf at trial. As such, the People argued that the instructional error was harmless beyond a reasonable doubt. The Court agreed.

Continue reading "A Common Legal Issue in the Context of Medical Marijuana Litigation" »

As a result of Operation Community Shield, law enforcement has arrested 1,785 gang members and associates around the country between March and September of this year. Of those arrested, approximately 300 were from the Los Angeles area. Gangs that were targeted in Los Angeles County during the sweep included the Avenues, 18th Street, Barrio Evil 13 and Mara Salvatrucha gangs. Charges against these alleged members ranged from drug dealing, drug trafficking and reentry after deportation to murder.

Virginia Kice, from Immigration and Customs Enforcement, stated that the majority of charges of those arrested in Los Angeles County were criminal while the rest were for immigration violations. The goal of Operation Community Shield is to disrupt a gang’s organization in Los Angeles County and throughout the nation by taking out its members with both criminal arrests and prosecution for immigration violations.

Continue reading "Gang Crackdown in LA" »

The Los Angeles Collective Association and the Green Oasis dispensary, which is made up of medical marijuana collectives, has filed a lawsuit against the city of Los Angeles’ moratorium that seeks to control the sale of medical marijuana. They argue that the moratorium is too vague and its extension into mid-March is in violation of state law.

Robert A. Kahn, an attorney representing the Los Angeles Collective Association and Green Oasis’ attorney , believes that the City Council’s failure to properly extend the ban and its extension past the state limit of 24 months make the moratorium legally unenforceable. The City Council’s Planning Committee has been working on an ordinance that would replace the moratorium; however, it is still months from completion. Nonetheless, the Los Angeles attorney’s office, the district attorney’s office and the Los Angeles Police Department have all emphasize that selling medical marijuana over the counter is illegal under California state law.

Continue reading "Lawsuit Filed in Attempt to Overturn City Council Decision to Limit Medical Marijuana Dispensaries" »

Why You Need a Good Drug Defense Attorney

The Drug Enforcement Agency (DEA) has a list of chemicals that it has placed on a watch list. The Chemical Diversion and Trafficking Act of 1988 imposed legal impediments to obtaining the chemicals necessary to manufacture drugs of abuse. The DEA, with the help of the State Department, monitors the flow of these chemicals over state and international borders.

Currently, there are over 22 chemicals and 27 named steroids that are on the FDA’s watch list. Possession of any one of these chemicals or steroids, whether willful or not, could lead to an investigation and ultimately an arrest. The problem is that these chemicals are readily available from any hardware or home improvement superstore and they can be used for other purposes, besides for making drugs. Thus, a perfectly legal purchase for a perfectly legal home improvement could end up in an arrest and federal drug charges.

Continue reading "Possession of Certain Chemicals Could Land You in Jail" »

In late September, Border Patrol Agents seized more than 15 pounds of crystal meth during a traffic stop on I-15 in Temecula, CA. It was reported by a U.S. Customs and Border protection news release that agents “spotted” a 23-year-old woman driving north in a Ford Focus near Winchester Road about 10:15 a.m. and pulled her over. A drug-sniffing dog was called out after the woman “provided inconsistent answers” to an agent’s questions. A subsequent search of the woman’s vehicle uncovered 18 bundles of crystal meth hidden in the dashboard, the release said. The woman, who apparently is pregnant, was turned over to a multi-agency drug task force.

There are so many questions raised by this news story. Clearly a pregnant woman who apparently was making cash as a drug “mule” is distressing in itself but, putting that aside, this story begs a number of legal questions. First, the release says that the woman was “spotted” driving north. Is that probable cause or reasonable suspicion to stop her vehicle? Was she “spotted” breaking a traffic law?

Another question is whether this was a “roving patrol”? It clearly wasn’t a stop made at a fixed checkpoint so it sounds like the practice of a “roving patrol” which the U.S. Supreme Court deemed unconstitutional back in 1973. While all the facts are unclear at this point, it is clear that this woman desperately needs an experienced Riverside drug defense attorney at her side.

Continue reading "Why You Need a Riverside Drug Defense Attorney" »

It has been well established that minors will consume alcohol before they are legally permitted to at 21. Lawmakers in California hope a new law will help deter minors from not only drinking, but from being drunk in public. As of 2009, the California Courts will impose a suspension or delay of driving privileges on minors who are convicted of being drunk in public.

California law states that any person, who is found to be under the influence of alcohol or drugs, is guilty of a misdemeanor. The penalties associated with a misdemeanor can be fines or jail time. In addition to these penalties, minors under the age of 21 will also have their license suspended for one year. If the minor has not yet received their driver’s license, the court will delay their ability to get a drivers license for a year.

Continue reading "California Law Seeks to Prevent Minors Drunk in Public" »

In California, there are 217 “problem-solving” courts. Many are Proposition 36 courts that treat non-violent but severely addicted drug offenders. Other courts are drug treatment courts for juvenile, parents in dependency court, and regular drug treatment court.

The idea behind these specialty courts was to “use the trauma of the moment to move individuals caught up into the system into treatment in hopes of breaking the addiction and transitioning them toward a less dangerous existence” reports California’s Daily Journal. However, such courts are not necessarily all they’re cracked out to be.

Reports indicate that money poured into these specialty courts could be used to prevent drug use and treat substance abusers before a crime is committed. Moreover, Prosecutors often offer “deals” to get drug abusers into these programs by offering the program in exchange for a guilty plea to a felony charge. However, upon completion of the program the felony often remains on the defendant’s record.

Continue reading "Are Treatment or Specialty Courts the Answer?" »

In Melendez-Diaz v. Massachusetts, the defendant was convicted of drug possession. 129 S.Ct. 2527 (2009). The conviction went all the way up to the Supreme Court of the United States. The Supreme Court reversed the defendant’s drug conviction because the trial court violated the defendant’s Sixth Amendment rights.

In Melendez, the trial court admitted the prosecutions certificates by laboratory analysts, stating that the material seized by police and connected to the defendant was cocaine of a certain quantity. When the trial court admitted the certificates, this prohibited the defense from being able to cross-examine the laboratory analysts who created the certificates. Because the defense was not able to cross-examine the witness on their procedures and policies, this violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Continue reading "New Court Ruling Results in Drug Conviction Reversal: The Criminally Accused Have a Right to Confront the Witnesses Against Them - Part I " »

An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a medical marijuana prescription.

Various courts have held that, once the officer has probable cause, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.

Continue reading "Medical Marijuana Card Does Not Necessarily Protect Against Vehicle Search" »