Articles Posted in Drug Crimes

This week, Senate Majority Leader Mitch McConnell announced he would bring the First Step Act, a bipartisan criminal justice reform bill, to a vote. The proposed bill would bring criminal justice reform to individuals facing current charges and potentially cut the sentence of individuals currently serving time in federal prison.

Giving Federal Judges Sentencing Discretion

The bill proposes to give federal judges more discretion during the sentencing phase. Nonviolent crimes, particularly drug offenses, would receive shorter prison sentences. Some federal inmates would be placed in prisons closer to their homes – no more than 500 miles – making it easier for families to visit their loved ones.

Offering Rehabilitation Programs to Inmates

The bill seeks to expand prison employment programs so inmates could earn wages while they serve their federal prison sentence. Home confinement would be available for lower-level offenders, reducing the cost of housing non-violent offenders in federal prisons. Some minimum or low-risk offenders would be eligible for early release if they participate in education and rehabilitation programs aimed at reducing recidivism (returning to prison for a new offense once original sentence is served). Lastly, the bill would bar the use of restraints on pregnant inmates during labor.

Introducing Controversial Risk-Assessment System

The bill would set up a risk-assessment system to determine whether an inmate is likely to commit more crimes when released. This measure is controversial because of the high potential for bias, especially against minority communities.

Addressing Sentencing Disparities

The Fair Sentencing Act of 2010 reduced the sentencing disparity between crack and powder cocaine sentences for individuals convicted of possession after 2010. The newly proposed bill seeks to apply the same rule to any individuals convicted of crack offenses retroactively, or before the 2010 Act became effective.

Text – S.3649 – 115th Congress (2017-2018): First Step Act

Hire a San Diego Criminal Defense Attorney to Petition Court for Early Release

If a loved one is serving time in federal prison for a non-violent drug related offense, contact a San Diego Criminal Defense Attorney to petition the court for early release. Petitions need to be filed in court with participation with the U.S. District Attorney’s office after your loved one completes some rehabilitation programs, or outright if his or her conviction stems from possession of crack prior to 2010. If you currently face drug possession charges, contact a San Diego Criminal Defense Attorney to help reduce your sentence. Continue reading

Under a “little-noticed provision” on Proposition 64, the voter-approved law legalizing recreational marijuana, California residents with marijuana convictions may be eligible to have those felonies and misdemeanors reduced or, in many cases, fully expunged off their criminal records, according to The San Diego Union-Tribune. According to the San Diego District Attorney’s Office, the city has proactively expunged 700 criminal records since the law came into effect at the beginning of the year and released 55 people incarcerated because of marijuana. The city still has 4,000 cases awaiting action by the courts.

For California residents who have been impacted the most severely by their marijuana convictions, so-called “high priority” convictions, the public defender’s office and district attorney’s office have moved aggressively and quickly to expunge the records. These include California residents who have marijuana convictions preventing them from gaining employment or limiting their access to government benefits or housing.

According to Summer Stephan, interim district attorney for San Diego, “We want to be pro-active. It’s clear to us that the law was written to allow this relief, and it’s important that we give full effect to the will of the people, especially for those who are most immediately affected.”

The problem, according to the San Diego public defender, is that there is no unified system for identifying marijuana-related convictions. The current database only goes back to the early 2000s, therefore, individuals with marijuana convictions in California may need to proactively petition the courts for an expungement. “It won’t happen overnight, but we are committed to seeking relief for everybody who is entitled,” said Angie Bartosik, chief deputy primary public defender. Bartosik noted that for those seeking relief under Proposition 64, there is a form available online at courts.ca.gov and, for most, filling out the form will be sufficient to expunge their records.

Effectively expunging all marijuana convictions is a statewide problem. Only 5,000 Californians have sought to have their marijuana convictions removed from their records, according to the Drug Policy Alliance. Considering the fact that there were more than 500,000 people arrested for marijuana just between 2006 and 2015, this means that hundreds of thousands or more Californians are likely eligible. In San Francisco, where only 20 people have filed petitions for expungement, district attorney George Gascon announced that the city will proactively search and expunge all marijuana convictions dating back to 1975. The San Francisco DA estimates that this would include over 3,000 misdemeanors and almost 5,000 felony convictions. Continue reading

As Jeff Sessions creates chaos in the marijuana community with his rescission of the Obama policy of non-interference with marijuana-friendly state laws, U.S. Attorney Adam Braverman issued a statement backing Session’s new policy. He stated that the change “returns trust and local control to federal prosecutors” to enforce the Controlled Substance Act. Other U.S. Attorney Generals in states like Colorado have said their offices will not change their lenient approach to marijuana crimes.

What Exactly did Jeff Sessions do?

While marijuana currently remains illegal under federal law (the Controlled Substances Act), eight states including California, Oregon, and Colorado have legalized the drug, as has Washington, D.C, creating a conflict of law situation. 28 states currently permit some form of medical marijuana use.

President Obama’s Justice Department issued a policy in 2013 which generally barred federal law enforcement officials from interfering with marijuana sales in states where the drug is legal.  Sessions issued a memo in his capacity as Attorney General that will instead let federal prosecutors where marijuana is legal decide how aggressively to enforce longstanding federal law prohibiting it. The one-page memo states: “In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” by considering the seriousness of the crime and its impact on the community.

These changes come just after the New Year, as legal weed shops opened in California.  California is expected to become the world’s largest market for legal recreational marijuana, and is overwhelmingly supported by American voters.

While Sessions’ Justice Department had been largely carrying out Trump’s top priorities until now, this marijuana policy strictly reflects his own personal feelings. Sessions has compared marijuana to being as harmful as heroin.

It is unknown yet how this policy will really affect California’s marijuana market and criminal charges.

Pot Has Nothing to do With San Diego’s Violent Crime

A recent survey (titled “The 2017 National Drug Threat Assessment”) of law enforcement and intelligence agencies conducted by the federal Drug Enforcement Agency says marijuana usage has been responsible for 0% of crime increases in San Diego. Rather, the report concluded that meth entering the country through the Southwest border remains the biggest threat to crime rates.  Meth smuggled from Mexico is predicted to increase due to the demand in the U.S. and lack of availability of it, compared to marijuana. Continue reading

Thousands of people convicted of marijuana crimes in California have asked to get their records reduced since the state legalized recreational pot. Peddling pot, or in some cases, just the possession over a threshold amount, can be a felony that will mess up your life forever and keep you from getting a job.

The passage of Proposition 64 last year allows for those who are 21 and older to legally possess up to an ounce of weed, as well as grow up to six plants for personal use. In other words, it made pot “legal” to remove the stigma of a criminal conviction. A lesser-known provision of the law also allows those convicted of marijuana charges to wipe their rap sheets clean and offers hope for people with past convictions who are seeking work or loans.  The provision allows for those convicted of marijuana crimes to reduce their felonies to small infractions. However, prosecutors have the discretion to not support a reduction should someone have a major felony, such as murder, on their record.

While it is hard to say how many people have benefitted, it is estimated that over 2,500 requests were filed to reduce convictions or sentences, according to partial state figures. San Diego County specifically, has led the charge with the most number of petitions reported and the reduced sentences or convictions in 400 cases.

Reducing Your Felony Conviction

Some defendants in California have always had the option to reduce their convicted felonies to misdemeanors. In the case of Prop. 64, those convicted of marijuana crimes can have their felonies reduced to infringements.

Under California Penal Code § 17(b), felonies can be reduced to misdemeanors if:

  • You are convicted to wobbler crimes such as felonies; and
  • Are sentenced to and completed felony probation for the offense.

A judge can take into consideration a multitude of factors when deciding whether to reduce a crime, such as the nature of the offense, the circumstances/facts, your compliance with your probation terms, your criminal history, and your personal history.

Reductions are different from expungements. Expungements close your records and seal them and makes it so you were never convicted. You are not eligible for expungements if you are currently charged with a criminal offense.     Continue reading

It has been reported throughout the years that minor drug offenders or registered marijuana businesses were being targeted by police, but now, it seems that marijuana attorneys who represent those in the marijuana businesses are now coming under fire from law enforcement.  Last month, attorney Jessica McElfresh, an experienced attorney in cannabis law, had her hearing in San Diego district court. She is facing multiple felony charges for allegedly hiding hash oil from city inspectors on behalf of her client, James Slatic.

Back in May, D.A. Bonnie Dumanis filed a slew of criminal charges, alleging that Slatic and his business partners were illegally manufacturing and selling hash oil across the country.  Specifically, McElfresh is accused of hiding the evidence from city inspectors during an April 2015 inspection of her client’s facilities in Kearny Mesa.

However, what most attorneys are concerned about is arguably the most sacred right in the legal profession – attorney-client privilege. Prosecutors want access to all of her records, not just the ones pertaining to the charges McElfresh is fighting. There is a particular email in question that prosecutors are using to accuses McElfresh of conspiring with her client. However, McElfresh has counseled hundreds of clients, and now those records are in front of prosecutors.

The Ethics of Marijuana Law

It has long been debated whether an attorney can take on a client in the medical cannabis business. While recreational marijuana will soon be legalized in California, it is still a Schedule I drug under the federal Substances Control Act punishable by jail time. A June 2015 ethics opinion from the Bar Association of San Francisco (Opinion 2015-1) has concluded that representation of such businesses is legal if the lawyer advises clients to adhere to state regs and discourages illegal conduct. For example, aiding a client through a business permitting process is lawful representation that does not breach ethics rules.

Attorney Client Privilege

Every state bar has a rule that protects attorney-client privilege. In California, ABA Rule 3-100 specifies that conversations and information given by a client as it pertains to professional legal advice are protected as “confidential” and inadmissible in court. However, that same rule also specifies that a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime. In the scenario above, the judge claims that McElfresh’s communication(s) fall under this narrow exception. Continue reading

Earlier this month, Superior Court Judge Tamila E. Ipema issued a court order that the San Diego County District Attorney, Bonnie Dumanis, must return $100,000 of seized assets back to a medical marijuana businessman and his family. Over a year ago, DEA agents raided James Slatic’s business, but did not charge anyone with a crime. They used sledgehammers to break open the front door of Med-West Distribution, Slatic’s business that supplied a collective of medical pot shops with cannabis oils used for vaping as well as marijuana-laced edibles, topical creams, and other products. The agents seized all of the inventory, business records, and just over $324,000 in cash (a separate forfeiture proceeding for those funds is ongoing).

A few days after the raid, the District Attorney’s office also froze Slatic’s personal bank account, along with the accounts of his wife and two stepdaughters, alleging that the money was illegal drug profits. They took $55,000 from Slatic’s account, $34,000 from his wife’s account and more than $5,000 each from the couple’s two daughters. The money was not formally seized until months later. Dumanis has used state and federal civil asset-forfeiture rules for years to confiscate millions of dollars from drug suspects.

Lawyers for Mr. Slatic argued that that money should be returned because it was not part of Med-West’s funds. Mr. Slatic wrote in a statement: “It’s about time. We did nothing wrong. My business operated openly and legally for more than two years; we paid taxes and had a retirement program for our 35 employees.” The District Attorney’s office has argued that they do not have to return the money until 12 months after money is formally seized, not 12 months after it is actually seized.

Formal Procedures of Civil Asset Forfeiture

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property without compensating them, based on the suspicion that the property was used in connection with criminal activity. The government has to follow certain procedures before it can declare forfeited property.

Schedule I substances (drugs) can be seized by policy without any formal petition of forfeiture. See CA Health and Safety Code § 11475.  

When police seize personal property worth less than $25,00 they must give notice of formal forfeiture proceedings to all property owners. See CA Health and Safety Code § 11488.4(j). You must be given an opportunity to file a claim if you recieve this notice, which must be filed within 30 days of the received notice.

California law prohibits police from keeping seized cash and property valued at less than $40,000 in federal cases without obtaining a criminal conviction. Continue reading

This past election, California voters chose to join the ranks of their northern neighbors Oregon and Washington, along with Alaska, Colorado, and Massachusetts, to legalize the use of recreational marijuana. California Proposition 64, the California Marijuana Legalization Initiative (also referred to as the Adult Use of Marijuana Act), is the product of a long-fought ballot initiative. It is effective immediately, which means November 8 was the law’s date of passage.

Proponents of the ballot initiative have argued that drug charges disproportionally affect Hispanic or African-American communities, which have an arrest rate of 35% and 350% more often than whites, respectively. Additionally, California is predicted to earn $1 billion in from tax revenues. Most of that will be set aside for youth programs, cleaning up environmental damage caused by cannabis growers, and California Highway Patrol programs.

What Prop 64 Does

This November, California voters will choose whether they want to legalize marijuana. California Proposition 64, the California Marijuana Legalization Initiative (also referred to as the Adult Use of Marijuana Act), will be on the state’s November 8, 2016, ballot as an initiated state statute.  

However, it is reported by the San Diego Union Tribune, that non-citizens, immigrants, legal and undocumented alike, and green-card holders may still face legal consequences for using marijuana. This includes having their citizenship blocked or getting deported and not being allowed back into the country. This is because despite potential state law being enacted, using marijuana is still illegal under federal law. This affects immigrants who are trying to attain citizenship through the federal process.

Currently, almost 13% of San Diego county residents are not U.S. citizens. This is much higher than the national average, which is 7%.    

Current California Marijuana Law

Currently, possession of marijuana for personal use only carries a maximum of six months in jail. See Ca. Health and Safety Code 11357.  Often defendants will plead down to that charge instead of pleading guilty to a charge of ‘marijuana possession for the purpose of sale,’ which carries a three-year prison sentence. See Ca. Health and Safety Code 11359. However, pleading guilty to either crime is still a deportable offense if you are a non-US citizen.

Under federal law, the federal Immigration and Nationality Act (“INA”) allows for the deportation of non-U.S. citizens if they have violated the Controlled Substances Act.  See INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i). This is why it is extremely important for all non-citizens facing criminal charges to hire an attorney who can strategize the best defenses for his or her specific situation.

Back in 2015, Assemblywoman Susan Eggman proposed Assembly Bill (A.B.) 1351, which would allow immigrants facing minor drug offenses to enter a drug diversion program in lieu of the standard criminal process. It would have made it so that immigrant defendants with no previous history of drug crimes would be allowed to enter a drug treatment program and undergo drug counseling before they enter a plea. If they successfully finish the program, drug charges are dismissed, leaving no criminal record to taint their immigration process. However, the bill has not yet been passed into law. Continue reading

On July 5, 2016, defendant David Ramirez of Yolo County, California filed a motion to suppress evidence pursuant to CA Penal Code § 1538.5 through his attorney. Mr. Ramirez is charged with possessing a controlled substance and drug paraphernalia, both of which he has claimed was discovered during an illegal traffic stop. Back in January of 2016, Mr. Ramirez was a passenger in a car that was stopped for a cracked rear taillight. The deputies allegedly questioned all the passengers including Mr. Ramirez, and they were asked to be detained for a pat-down (frisk) search. The driver and front seat passenger consented and were searched, and nothing was found.

Mr. Ramirez however, did not consent to the search (and was well within his rights not to consent). The police further pushed and allegedly stated they were only looking for weapons.  After Mr. Ramirez consented, the police then reportedly found a meth pipe, which was seized.  Mr. Ramirez has argued that his search was unlawful, and the evidence resulting from the search must be suppressed under the “fruit of the poisonous tree” doctrine, as detailed in People v. Williams (1988).

When Does the Exclusionary Rule Apply?            

Andrew Kornfeld, the son of the California addiction specialist who was hired to treat the late singer Prince, could face criminal charges for possessing a prescription drug (Suboxene), which is used to help kick opiate addiction. Kornfeld was at Prince’s estate when the singer was found dead in an elevator. Kornfeld was the one who made the 911 call. Kornfeld was on the scene in his capacity as a consultant for his father’s California outpatient addiction clinic, Recovery Without Walls.

The drugs were taken into possession by the Carver County Sheriff’s Office, as they are considered a controlled substance in Minnesota. According to criminal Defense lawyers, the Minnesota Good Samaritan law does not protect Kornfeld from drug charges because he had those drugs prior to Prince’s death. In Minnesota, possessing Schedule III controlled substances like Suboxone without a prescription is punishable by up to five years in prison and a $10,000 fine.

Can I Get in Trouble for Being a Good Samaritan?