Southern California Defense Blog

In the context of California medical marijuana laws, a “primary caregiver” is an individual or facility that has “consistently assumed responsibility for the housing, health, or safety of a patient” over time. (California Health & Safety Code 11362.5(e)). Consistency is critical to meeting this definition. A patient can elect to frequent any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. However, in light of the holding in People v. Mentch (2008) 45 Cal.4th 274, 283, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer.

The California Legislature set forth what types of facilities could qualify as “primary caregivers.” The legislature restricted the definition to one involving a significant and long-term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as “primary caregivers” are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (California Health & Safety Code 11362.7(d)(1)).

For over 30 years Wallin & Klarich has been defending thousands of clients charged with marijuana related offenses. There are many defenses to a marijuana case in California. If you or loved one has been charged with a drug crime, call our law offices now for a free consultation, 888-280-6839. With offices in San Bernardino, Los Angeles, Riverside, San Diego, Ventura and Orange Counties, we can defend you no matter where you live. We will be there when you call.

The issue of whether to prohibit the sale of medical marijuana by means of dispensaries remains a controversial issue in California. Many local governmental bodies in California have sought to impose a moratorium on the licensing of marijuana dispensaries. The basis of such a ban would be based on an argument that the activity related to these dispensaries violates federal law. Cities have also used zoning ordinances to control the licensing of dispensaries and the attendant problems that accompany them in unwanted areas. In addition, cities may seek to condition their operation on not violating any federal or state law, which is akin to banning them, since their primary activities will always violate federal law as it now exists. The reason the legality of medical marijuana causes measured confusion is the overlap of local, state, and federal laws

With the severe potential consequences of being convicted of possession of marijuana for sale combined with the ease that one can be falsely accused it is extremely important for anyone facing these charges in Southern California to consult with a knowledgeable criminal defense attorney. A skilled and defense attorney will protect your rights and do everything possible to raise a viable and effective defense to these charges. If you or a loved one is facing criminal charges in Southern California you should immediately contact the law offices of Wallin & Klarich for a legal consultation. Call us now at 888-280-6839. We have offices in San Bernardino, Riverside, Los Angeles, Ventura, San Diego, and Orange County. We will be there when you call.

The question the court faced was whether the police needed to obtain a search warrant when they smell a strong odor of marijuana coming from a hotel room. In a decision that will be very good news for all persons who smoke marijuana in the privacy of their home or in a hotel they may visit, the court of appeals threw our the defendants convictions and ordered that all of the evidence seized during the search of the hotel room must be suppressed. Without this evidence the cases will have to be dismissed.

The courts decision was based upon the fact that the marijuana possession of less than 28.5 grams is a “non-jailable” offense. This means it is not a serous offense and thus the police cannot claim that they must be allowed to enter your home or hotel room without a warrant in order to seize this evidence. The court reasoned that since all the police can do if they in fact find you in possession of less than 28.5 grams of marijuana is issue you a citation there is no “emergency” so great that would allow the police to enter your residence or hotel without first obtaining a search warrant.

Why is this so critical to those persons that want to be free from unlawful searches and seizures of their home and property under our constitution? It is so important because police have been using the “smell of marijuana” coming from the residence excuse to unlawfully break into peoples home for decades. The “risk’ of harm when police storm into your home is great. Often police will handcuff everyone they see in the home and they will conduct a search of your entire home looking for anything “unlawful” they might find. With this court having the guts to see through this police “ploy” this will no longer work for law enforcement when they would like to enter your home or hotel room to attempt to find evidence so they might arrest you.

While this is good news for those that smoke marijuana in their homes or in a hotel room, it is even better news for the people of our state and nation who will no longer have their constitutional rights violated by this unlawful police conduct.

We would like to know how you feel about this. If you are facing a criminal case and would like our help as to a possible search and seizure issue feel free to call the criminal defense attorneys at Wallin and Klarich at 888-280-6839. We have been helping people fighting for their freedom for over 30 year and we will be there when you call.

Part 1
Part 2
Part 3

Today we bring you part 4 of our series of blogs surrounding California's medical marijuana laws. Today's blog is about the pitfalls and potential legal battles you can face if you decide to open a medical marijuana dispensary.

Basic collective law

You hear about medical marijuana dispensaries being “Little cash cows” making hundreds of thousands of dollars a month. Don’t believe everything you hear or read on the internet. There are many lawyers advertising themselves as “420 lawyers” representing that they can guide you through the permitting process in many cities that will allow you to open up and start servicing patients in a short period of time. Operating a medical marijuana collective dispensary is not always as easy as that. There are strict guidelines that must be followed in how the business entity is set up and many cities in California still have city wide bans on medical marijuana collective dispensaries.

Over the last decade, hundreds of thousands of dollars have been spent on litigation against the cities and counties in an effort force them not to ban medical marijuana collective dispensaries within their local jurisdiction.

It is important to note that a collective is not a sure bet. While some well-run collectives in the right area do well financially, others manage to squeak by month to month. There are collectives that pay just enough to pay for medication, rent and employee wages with no spendable income to pay for attorney’s fees.

It is also important to remember that medical marijuana collective dispensaries are required to be non-profit and that labor and wage laws apply to them the same as any other business. Those who wish to venture into the medical marijuana collective dispensary business should keep in mind that it is not a money tree and your legal fees can be substantial due to federal laws and local ordinances designed to keep dispensaries from opening within their borders.
Many people in local positions of power or influence have preconceived notions that are totally opposed to the concept medical marijuana collective dispensaries. Many of them could care less about what state law says. They just don’t want it in their back yard. In addition, few judges have been willing to “Pull the trigger” and rule in favor of medical marijuana collective dispensaries.

If you decide to open a medical marijuana dispensary, consult with a financial consultant that knows the financial issues of operating a non-profit enterprise and lawyer who knows how to legally set up the structure of a medical marijuana collective. Failing to properly structure the collective can result in the operating member being accused of a felony. Don’t start a collective based upon the notion that it is trouble free cash cow. It’s a tough business now and will be for some time.

Growing medical marijuana is a science and an art. The relationship between the people who grow the product and the people who dispense the product is key to avoiding several legal troubles. Having contacts with good providers who are willing to become members and how to set up your lease are all important things to address before setting up a successful non-profit operation that can support management members.

Even with the best laid plans, operating a medical marijuana collective dispensary is a high risk business. Having a relationship with an experienced lawyer who is familiar with all the issues concerning medical marijuana is essential. Your lawyer should know how to set up the business entity, know how to obtain permits, and be familiar with land use litigation if the city or county in which you decide to do business becomes unworkable. It’s also helpful if your attorney has a background as a criminal defense attorney to be able to defend the managing member and the employees if local or federal criminal prosecution becomes a problem.

Part 1
Part 2

Last week we began a series of blogs surrounding California’s medical marijuana laws. Today we bring you Part 3 of that series. You can follow the links above for Parts 1 and 2.

Today’s blog focuses on the federal government’s recent crackdown on medical marijuana dispensaries, and how federal law is handcuffing local California municipalities from being able to safely regulate the medical marijuana industry.

The legal difficulties that cities throughout California are facing when deciding how to regulate medical marijuana use revolves around one key case - Pack v. Superior Court (2011) 199 Cal.App.4th 1070

In the case of Pack v. Superior Court, cities that have local regulations for medical marijuana establishments — such as permits and fees — are preempted by federal drug law. This means that California cities and counties have two options. They can either help Uncle Sam prosecute the Drug War or stand idly by. But local jurisdictions can't actively contravene federal law with medical marijuana distribution permits, fees, and mandates for lab testing.

As a result, progressive cities with dispensary regulations have been forced to pause their programs. Conversely, cities and counties opposed to medical marijuana are using Pack to ban all clubs, and unregulated clubs now have legal cover to open without any rules.
If Pack stands, “we have an out-of-control industry we could not effectively regulate,” said Bob Shannon, Long Beach's city attorney. “It's a totally unacceptable set of circumstances, at least for us.”

In the interim, the federal government continues to crack down on medical marijuana dispensaries throughout California. In response to the federal government’s crackdown, a coalition of medical marijuana patients, activists, dispensing centers, and concerned citizens has compelled public officials to stand up to recent federal attacks. Last week, the coalition San Francisco United for Safe Access (SFUSA) held a press conference with several city supervisors and state officials, decrying the Obama Administration's aggressive tactics before a crowd of more than 500 supporters. By Friday, SFUSA had secured a statement from Mayor Lee, expressing his opposition to "recent federal actions targeting duly permitted Medicinal Cannabis Dispensaries...that aim to limit our citizens’ ability to have safe access to the medicine they need."

"By opposing federal interference, San Francisco officials are taking a stand for patients and for sensible public health policy," said Americans for Safe Access founder and Executive Director Steph Sherer. "The federal government must not be allowed to push patients into the illicit market without consequence." Since U.S. Attorneys announced a concerted crackdown in California last October, more than 200 dispensaries have shut down as a result of threats to owners and their landlords. However, more than 1,000 locally compliant facilities still continue to operate in the state.

"The assault on medical marijuana patients currently underway by the Obama Administration is unprecedented in this country's history, despite hollow proclamations to the contrary," continued Sherer. "The intensity and breadth of the attacks has far surpassed anything we saw under the Bush Administration and has resulted in the roll-back of numerous local and state laws, not just in California."

As it stands right now, federal law makes it difficult to impossible for California cities to regulate the medical marijuana industry, which even proponents of medicinal use of marijuana agree opens a Pandora’s box of potential problems. How the higher courts rule on cases like Pack vs. Superior court will have a dramatic effect on the future of medical marijuana laws here in California and across the nation.

Part 1

Yesterday we began the first part in a series of blogs outlining California’s medical marijuana laws and how they conflict with Federal law. This has been an ongoing struggle for medical marijuana activists, and recent raids on prominent dispensaries have only raised more questions in the debate.

Dispensary owners are fighting a battle on two fronts. First and foremost, there is the federal government looming over their heads, as federal law still prohibits all marijuana growth and distribution. Then there are local governments to deal with. Several municipalities throughout California are trying to circumvent medical marijuana laws by raising zoning and permit issues in an attempt to shut down dispensaries.

In order to fully understand the laws, our medical marijuana attorneys will try to answer two key questions for you.

1) To what extent do California's medical marijuana laws preempt local regulation or prohibitions to storefront medical marijuana establishments?

2) To what extent does the federal CSA preempt local regulations that would allow medical marijuana establishments?

For the purposes of today’s blog, we will tackle question 1. Tomorrow we will deal with question 2.

There are several cases that have been heard in California’s appellate courts that specifically address the rights of local municipalities to “ban” medical marijuana dispensaries. Unfortunately, the courts have arrived at completely opposite and conflicting decisions on the issue, making things that much more murky.

In City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., Division Two of the 4th District Court of Appeal held that neither the CUA nor the MMPA preempt Riverside's prohibition of medical marijuana establishments. The court stated: "Nothing... in the CUA and MMPA precludes... zoning ordinances banning medical marijuana dispensaries."

The court held that the immunities from state criminal sanctions set forth in California Health and Safety Code Section 11362.775 do not shield dispensary operators from civil nuisance abatement actions or protect dispensaries that operate in violation of local zoning. The court further stated that "nothing in the CUA or MMP suggests that cities are required to accommodate the use of medical marijuana and medical marijuana dispensaries.

However, in City of Lake Forest v. Evergreen Holistic Collection, Division Three of the 4th District reached the opposite conclusion. The California appellate court for Orange County ruled that local governments cannot prohibit dispensaries altogether insofar as the state legislature allows them where medical marijuana is “collectively or cooperatively cultivated.”

“Under the city’s ban, a medical marijuana dispensary always constitutes a nuisance, though the legislature has concluded otherwise,” a unanimous three-judge panel said. “Because the city’s ban directly contradicts state law, it is preempted and furnishes no valid basis for a preliminary injunction in the city’s favor.”

The issues surrounding medical marijuana in Orange County and throughout the state have become a legal quagmire - one that the state's supreme court has agreed to take on.
Our Orange County medical marijuana attorneys will be closely following the developments of the supreme court's decision, stemming from cases involving four cannabis dispensaries. Two other cases could be lumped in as well, including the recent appeal of an Orange County decision which determined that municipalities aren't allowed to ban pot stores, but the stores have to grow all of their product on site - something most have said is impossible.

In 2010, there was a ruling in the 4th District Court of Appeals, which held that Anaheim city officials weren't allowed to ban dispensaries just because federal law considered them illegal.

Then you look at conflicting rules even originating from the same court. Last fall, the 2nd District Court of Appeals handed down a sweeping judgment, saying Long Beach city officials weren't allowed to issue permits to marijuana dispensaries because federal law has deemed the drug unlawful. Any move by the city to regulate medical marijuana within its limits would be seen as violation of federal law. But then just last month, that same court tossed the convictions against the operator of a Hollywood marijuana club, deciding that he had been legally transporting more than a pound of cannabis from one dispensary to the other, which he was allowed to do under state law.

As a reporter for the Sacramento Bee so succinctly put it: The courts have a serious case of multiple personality disorder.

It could take as long as two years, if not more, to sort through the legal mess. In the meantime, that leaves patients and dispensary owners in the lurch, wary of attracting the ire of both state and federal authorities, and yet still wanting to practice their right to safe, legal access to medical marijuana.

Today we launch the first blog in a series of blogs outlining California's medical marijuana initiatives and how they contradict federal law. The series was put together by Matthew Wallin, one of the expert drug crimes attorneys at Wallin & Klarich. Today we provide a brief overview of the two California voter approved acts that have decriminalized medical marijuna. Tomorrow, we will begin taking a closer look at some of the landmark cases that have and will shape medical marijuana laws in California moving forward.

Part 1

California's medical marijuana laws – the voter approved Compassionate Use Act (CUA) of 1996 and the Legislature's Medical Marijuana Program Act (MMPA) of 2003 - present cities and counties with serious legal dilemmas with respect to whether and how to apply appropriate zoning and business license regulations to the distribution of medical marijuana.

Under the federal Controlled Substances Act, all marijuana production, distribution, and consumption is illegal. However, under the Compassionate Use Act (CUA) of 1996 and the Medical Marijuana Program Act (MMPA) of 2003, qualified patients and their primary caregivers are immune from state criminal sanctions for certain activities related to medical marijuana. As set forth in California Health and Safety Code Section 11362.775 – these activities include the collective and cooperative cultivation of medical marijuana. Essentially, state law decriminalizes medical marijuana collectives and cooperatives that cultivate their own medical marijuana, while federal law prohibits such activities altogether.

Medical marijuana advocates rely on the state criminal immunities in California Health and Safety Code Section 11362.775 as legal authority for medical marijuana collectives, cooperatives, and dispensaries to operate from storefront locations. For local governments, such storefront operations present difficult questions that go to the heart of local land use authority, a power that is reserved in the state constitution to counties and cities.

The federal government considers all marijuana use, cultivation, and distribution to be illegal, and has already closed several high-profile medical marijuana dispensaries throughout California. Despite the federal government's enforcement policy, it is expected that the growing demand for medical marijuana will require local governments to continue to address its land use implications.

The area of California medical marijuana law is highly complex. Marijuana crimes may trigger punishments for violation of both federal and state drug laws. If you have been accused or arrested for a drug-related offense in California it is important that you speak to one of our highly experienced Orange County criminal defense attorneys. Wallin & Klarich has over 30 years of experience in representing individuals charged with drug-related offenses throughout Southern California. Call Wallin & Klarich at (888) 749-0034 or visit our website at www.wklaw.com. We will be there when you call.

While the use and sale of medical marijuana is considered to be a federal crime, it is still legal according to California State law. But it isn’t an inalienable right. Just like an individual can have their driver’s license take away for committing certain crimes, a person can have their medical marijuana card taken away too.

A recent court decision in People vs. Hughes decided that if an accused individual pleads guilty to a crime that involves the use of drugs, the court can order that the accused not use medical marijuana during the entire term of the individual’s probation. This ruling has major implications for someone with a legitimate need for medical marijuana. After all, people aren’t prevented from going shopping if they are convicted of shoplifting.

It certainly seems that those that have a legal prescription to use medical marijuana are finding that their legal rights are slowly being taken away by government and court decisions. Recently many cities have closed down medical marijuana dispensaries. The legality of that question is before the courts of our state. However, some courts have already ruled that the closures are legal.

Now this case further restricts people from using medical marijuana. Please be wise and before you plead guilty to any crime that may involve in any way the use of drugs consult a criminal defense attorney immediately. It could be something as simple as being arrested for driving while under the influence of marijuana. You need to fight for your rights before the courts take them all away.

In January 2011, the California State Legislature amended possession of marijuana laws by reducing the punishment for someone charged with less than 28.5 grams of marijuana from a misdemeanor to an infraction. What this means is that if someone is found with 28.5 grams of marijuana and it is their first 　offense, they will only be facing a maximum $100.00 fine plus penalty assessment which makes the total fine about $460.00, instead of possible jail time and a misdemeanor on their criminal record. (H&S Code § 11357; V.C. § 23222).

If the "under an ounce" infraction is not filed in conjunction with any misdemeanor or felony charge, it is basically handled like a traffic ticket. The crime will be filed in a traffic court and the fine can be paid at the clerks office or via the internet. 　

However, it is important to note that individuals under the age of twenty-one, who are found in possession of marijuana of any amount, are required to make a court appearance. The mandatory appearance is required pursuant to California Vehicle Code Section 13202.5(d). If a person under the age of 21 enters a guilty plea to a violation of HS 11357, then the court will immediately notify the Department of Motor Vehicles and the person will have their license suspended for one year.

If you decide to retain an 　experienced criminal defense law firm you may have another option. It may be possible for the accused 　to enter a drug diversion program pursuant to California Penal Code Section 1000. Under California Penal Code Section 1000, "Deferred Entry of Judgment" allows an eligible defendant the opportunity to have their criminal proceeding suspended while they enter a drug treatment program.

If the defendant successfully completes the program with no new violations and pays all the required fees, the court will dismiss the underlying charges. What this means is by entering and completing a P.C. 1000 program, individuals under the age of twenty-one will not lose their driving license for any period of time..　

Due to the complexity of being accused of a drug offense, it is critical that you talk to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys will use their knowledge of the law to provide you with the best possible drug crime defense. Wallin & Klarich attorneys will aggressively defend you to ensure the judge takes into account all of the available options in your case. Contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-749-0034. We will be there when you call.

In California, Health and Safety Code section 11359 makes it a felony for anyone to unlawfully possess marijuana for sale. This crime is punishable by imprisonment for up to three years in state prison. Actual sales or offers to sell can result in imprisonment up to seven years in state prison. Possession means that a person has physical custody and control over the substance. The prosecution can establish this element of the offense by proving that marijuana was found in a vehicle or home that belonged to the defendant.

A conviction for possession of marijuana for sale may result in a sentence for up to three years in state prison. Moreover, every person 18 years of age or over who offers to give any marijuana to a minor 14 years of age or older will be punished by imprisonment in the state prison for up to five years. In addition, an adult defender may be facing up to seven years in state prison when he or she is convicted of selling marijuana to a minor.

If you have been accused of possession of marijuana for sale, you will need an experienced criminal defense attorney to vigorously represent you. At Wallin & Klarich, we have helped people accused of this crime for over 30 years. Call us today at (888) 764-2615 or visit us at our website at www.wklaw.com/possession-sale-marijuana-overview. We will be there when you call.

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" »

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" »

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" »

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" »

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" »

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" »

Why Hiring an Experienced Criminal Defense Firm Can Assure You Are Given Access to All Available Court Programs

Defendant, Oscar Armando Ochoa pled guilty to possessing cocaine after the trial court denied his motion to defer entry of judgment under penal code §1000. On appeal in California, Mr. Ochoa argued that the court erred in finding that his January 2006 conviction for possession of marijuana occurring more than two years before his current offense did not render him ineligible for deferred entry of judgment under penal code §1000.

The prosecution took the position that he was ineligible presumably because he was precluded from satisfying the condition that he “have no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.” PC §1000 (a)(1).

The California Court of Appeal, Third Appellate District disagreed with the prosecution. It held that Mr. Ochoa’s previous conviction for marijuana possession should have been destroyed after two years as required by Health & Safety Code §11361.5 and §11361.7 (a). Therefore, the previous marijuana charge could not have been considered by the trial court in determining Mr. Ochoa’s eligibility for deferred entry of judgment pursuant to penal code §1000.

Continue reading "Marijuana Possession Conviction Occurring Before Current Offense Does Not Negate Eligibility for Deferred Entry of Judgment" »

Thoughts by a Wallin & Klarich Criminal Defense Attorney

A Morro Bay pot dispensary owner was sentenced to one year and one day in prison by a federal judge in Los Angeles, according to a published report on latimes.com. Charles Lynch, 47, was prosecuted for illegally distributing marijuana from his Central Coast Compassionate Caregivers facility, despite having the blessing of Morro Bay’s mayor, city attorney and other civic leaders. His California drug crime case has become a symbol, nationwide, of the growing rift between state and federal medical marijuana laws.

Cultivating, using and selling doctor-prescribed marijuana is allowed in California and about a dozen other states, but such activities are banned entirely under federal law. Lynch’s defense attorneys attempted to portray him as a distributor of medicine to the sickly who were seeking relief from chronic illnesses. The prosecution painted him as a common drug dealer, who often sold to underage clientele and perfectly healthy individuals.

The medical marijuana issue is one that is being debated across our nation. As states continue to legislate the matter and make marijuana dispensaries legal and possession and consumption of marijuana for medical purposes also legal, the question of when and how federal drug charges get enforced is being considered.

Continue reading "Pot Dispensary Owner Sentenced to Prison in Los Angeles" »

He Will Need an Experienced California Criminal Defense Attorney

A Mexican national was arrested about 200 yards off of Imperial Beach by U.S. Border patrol officials, according to an article by Tony Perry on the June 9th, 2009 Los Angeles Times website.

The man was allegedly trying to smuggle marijuana into the United States via his surfboard, which he was seen on paddling off the shores of Imperial Beach. When agents ordered the surfer to come ashore, he threw a blue duffel bag into the water, the Border Patrol said. That duffel bag later washed ashore where officials discovered that it contained five packages of marijuana with an estimated street value of $74,400.

The marijuana weighed approximately 25 pounds. The man, whose name was not released by officials, admitted to being in the country illegally.

Possession of drugs in California (or drug paraphernalia) can be a felony or a misdemeanor in California, depending on the amount and type of drugs that the individual possesses. Possessing large amounts of drugs, or cultivating or selling drugs, is more likely to be a felony with serious penalties attached. In this instance, you can add federal immigration charges to the mix, in addition to the drug charges.

Continue reading "Man Arrested Trying to Smuggle Marijuana Ashore on Surfboard" »

U.S. District Judge Delays Sentencing for Convicted Marijuana Distributor Represented by Criminal Defense Attorney

A federal judge recently delayed the sentencing of a Morro Bay man on March 24, 2009, who was facing drug charges for running a medical marijuana dispensary, according to the LA Daily Journal. Last year, Charles C. Lynch was found guilty of distributing over 100 kilograms of marijuana from his Central Coast Compassionate Caregiver dispensary, and is facing up to five years in federal prison.

With the U.S. Drug Enforcement Administration conducting over 80 raids on medical marijuana dispensaries in the past three years, distributing marijuana in what arguably may be a legal manner can have serious consequences. Although U.S. Attorney General Eric Holder said “federal agents would only target marijuana dispensaries if their operators violated both federal and state law,” prosecutors are bringing legal actions against California residents who are in compliance with California law.

Due to these discrepancies, U.S. District Judge George H. Wu decided to delay Lynch’s sentencing and told prosecutors that before making a decision he would “need to know-in writing- whether the U.S. Department of Justice has changed its policy regarding the prosecution of medical marijuana dispensary operations,” and how that change would affect Lynch’s sentencing.

If you or someone you know is facing similar charges regarding medical marijuana in California, call Wallin & Klarich. Wallin & Klarich has over 30 years of experience in drug cases and are here to help you. Call 1-888-280-6839 to speak to one of Wallin & Klarich’s aggressive and experienced criminal defense attorneys in California today. Also visit us on the web at www.wklaw.com.