Drug Crimes

November 9, 2016

If Pot is Legalized, it Can Still Have Big Consequences for Certain Immigrants

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

September 16, 2016

Yolo County: Motion to Suppress Evidence of Controlled Substance and Paraphernalia Confiscated During Illegal Stop

by David M. Boertje

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?

July 29, 2016

The Pre-Med Student Who Found Prince Dead Could Face Drug Charges

by David M. Boertje

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?

June 10, 2016

California Prepares to Green the Pot Industry

by David M. Boertje

In the drought-ridden state of California, illegal pot farmers have been harming the watersheds, wildlife, and endangered species with the pollution runoff from their pot growing operations. While California was the first state to legalize the use of medical marijuana, the state is now struggling with environmental enforcement as illegal farms pollute the state’s waterways, poisoning the endangered salmon, steelhead trout, and Pacific fish. Unscrupulous growers who are unwilling to pay taxes or pay for permits have remained a problem. They are also likely exporting their marijuana across state lines to sell.

Because marijuana still remains illegal under federal law, farms stay hidden in forested, undeveloped watersheds so as not to gain the attention of federal authorities. The runoff of pesticides, THC, etc. from these farms has poisoned wildlife, and the water diversions from streams to water the plants have exacerbated the state’s drought and disturbed the surrounding ecosystem that depends on the water.

Legislation signed by Gov. Jerry Brown in October calls for the state to start regulating the cultivation industry and begin issuing permits for commercial growers in 2018. California will award licenses to commercial growers who also have local permits that are approved by the city, as an attempt to discourage backwoods, illegal farms.

June 3, 2016

Civil Asset Forfeiture: The Newest Legal Threat You Have Never Heard of

by David M. Boertje

A new law that is causing a buzz in the state of California is S.B. 443 (Forfeiture of Controlled Substances). The bipartisan law, authored by Senator Holly Mitchell (D-Los Angeles) and David Hadley (R-Torrance) failed to pass the assembly floor back in September 2015, and was recently amended in the state senate on April 6. The proposed law would require a conviction of a crime regarding controlled substances in order for police to seize one’s money and assets on the grounds it was suspected drug money. It would also prohibit state agencies from transferring these seized funds over to a federal agency and receiving an equitable share of those funds. A Tulchin poll found that nearly 80% of California voters would support such a law.

Despite bipartisan support and nearly unanimous votes at every previous juncture, law enforcement departments had deployed a variety of lobbying efforts and scare tactics back in September to defeat the bill.

What is Civil Asset Forfeiture?

November 20, 2015

Feds Launch Nationwide Synthetic Drug Crackdown

by David M. Boertje

According to the Federal Drug Enforcement Administration (DEA), Federal drug agents have arrested more than 100 people across the country in the latest phase of a national crackdown on manufacturers and purveyors of synthetic drugs. Since July of 2014, it is reported that the DEA, in cooperation with other state and federal agencies, has arrested over 151 people in 16 states. Government agents also seized more than $15 million in cash and assets as part of Project Synergy, an ongoing DEA crackdown on synthetic drugs. Most recently, agents in the Southern California area seized $500,000 in cash and 200 pounds of synthetic drugs. This crackdown operation ended in October 2015.

The DEA has been focusing on synthetic drugs, including bath salts, Spice, and Molly since their use gained widespread popularity because they do not show up on drug tests. Additionally, six new synthetic drugs have increased the number of drug-related deaths in San Diego within the last year. Authorities have never seen these compounds in autopsies before.

What You Need to Know About Synthetic Marijuana

September 2, 2015

San Diego Cracks Down on Illegal Marijuana Dispensaries

by David M. Boertje

In the last few months, San Diego city officials have been cracking down on illegal marijuana dispensaries that are operating without permits. Back in March, city officials shut down nearly 20 dispensaries operating without permits. These 20 were all shut down within 60 days of each other. Several months later, city officials claim that these shut-downs have been successful. As of July, there were 15 dispensaries that were in the process of being shut down by the city. This number has decreased from the 69 dispensaries that were shut down in 2014.

Medical Marijuana

Medical marijuana was legalized by California voters via Proposition 215 (aka ” CA Compassionate Use Act” back in 1996 and later codified in the CA Health and Safety code § 11362.5. In 2004, Senate Bill 420 (aka “Medical Marijuana Program Act”) built upon the Compassionate Use Act, allowing for qualifying patients (ie. diagnosed with cancer, anorexia, arthritis, etc) to obtain a medical marijuana card as part of the California Dept. of Public Health’s Medical Marijuana Identification Card (MMIC) program to possess marijuana. This means if you are a MMIC card holder, you are legally entitled to possessing the amount of marijuana that is reasonably related to your prescribed medical use.

May 1, 2015

Proposed CA Bill Could Protect Legal Immigrants from Drug-Related Deportation

by David M. Boertje

In California, like every state, it is illegal to possess, distribute, and transport illegal substances that are listed on the Controlled Substances Schedule. These substances include heroin, marijuana, peyote, hash, cocaine, methamphetamine, “magic mushrooms,” and prescription drugs such as Oxycontin (aka “oxy”), Vicodin (Hydrocodone), and stimulants.

All drug possession crimes in California are classified as infractions, misdemeanors, “wobblers” (meaning they can be a misdemeanor or felony), or felonies. There are 4 types of charges:

Simple possession;

March 12, 2015

California’s Proposed Marijuana Legislation

by David M. Boertje

Keeping up with the momentum of Oregon, Alaska, Washington D.C. and Florida this past election year, Assemblyman Ken Cooley (D Rancho Cordova) recently proposed Assembly Bill 266, which would legalize recreational marijuana in California. The bill would set up a statewide regulatory scheme on marijuana while allowing local jurisdictions to regulate the licensing of medical marijuana growers and dispensaries. Marijuana policy reform in California has been attempted multiple times throughout the years. This bill was backed by the California Police Chiefs Association last year, and will be the second time it will be proposed.

Criminal Laws on Marijuana

While the proposed bill, if passed, would legalize marijuana to an extent, the possession of marijuana is currently decriminalized in California to some degree, with possession of up to 28.5 grams considered an infraction with a fine of $100. Possession of over 28.5 grams is a misdemeanor punishable by up to 6 months imprisonment and a maximum fine of $500. See California Health & Safety Code § 11357. However, possession with intent to distribute any amount of marijuana is a felony punishable by 16-36 months imprisonment. See California Health & Safety Code § 11359 and § 1170(h). The actual sale or delivery of any amount of marijuana is a felony punishable by 2-4 years imprisonment. See California Health & Safety Code § 1136.