San Diego Criminal Lawyers Blog

March 12, 2015

California’s Proposed Marijuana Legislation

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.

March 6, 2015

Motions to Seal Vs. Motions To Expunge: What’s The Difference?

by David M. Boertje

Because criminal records are public records, those with prior convictions need to know that there are certain circumstances which may qualify them to get their records “wiped.” These vessels by which one’s records can be cleaned vary depending on the type of crime and state law involved.

Expungements

Expungements are defined as the legal process of cleaning up one’s criminal record. They are a good option to put your prior conviction behind, as it involves the court reopening your case, withdrawing your plea or guilty verdict, dismissing the charges, and re-closing the case without a conviction. Legally speaking, a successful motion for expungement has the effect of dismissing a prior criminal conviction, and you can therefore claim in future job interviews, housing applications, etc. that you do not have a conviction on your record. California Penal Code Section 1203.4 authorizes the most common kind of expungement relief that exists in California (ie. cases in which probation was part of the sentence, cases in which there was no probation, felonies in which you only served time in county jail, and cases where a felony conviction was reduced down to a conviction). In order for an expungement to take place, your lawyer will have to file a formal document in court requesting that they take a specific action (the expungement motion). This motion must be filed at the court where you received your sentencing and given to the prosecutor that handled your case, and must claim in good faith that you are now living an upright and honest life.

March 4, 2015

The Prosecutor Wants me to Take a Polygraph Test! What Do I Do?

by David M. Boertje

What Exactly is a Polygraph Test?

In tv shows and movies, polygraphs (or “lie detector tests”) are often painted as mechanisms by which a defendant “gets off” or proves his or her innocence. Polygraphs are machines that hook up to a person to measure their physiological indicators such as perspiration and heart rate. It was once thought that when a person tells a lie, their heart rate and blood pressure change to indicate so. However, what many people do not know, is that polygraph tests are generally unreliable (ie. there are “false positives” or negatives), and their use has decreased. For example, if a person is nervous simply by virtue of taking a lie detector test, their heart rate will increase regardless and their test results will be inconclusive, rather than “passing.” Polygraphs may also be fooled if one is just able to control their physiological responses.

Rules on Polygraphs

March 2, 2015

California Supreme Court Says Sex Offender Residency Law is Unconstitutional

by David M. Boertje

Earlier this Week, the California Supreme Court decided unanimously that blanket, statewide bans on where sex offenders may not live (“Jessica’s Law”) violate the constitutional rights of parolees in San Diego County. Jessica’s Law (aka Proposition 83), named after a 9-year-old girl who fell victim to a sex offender who failed to report his whereabouts, was proposed via a ballot initiative in 2006. Due to Megan’s Law, those who have been convicted of a sex crime must register with their local law enforcement agency.

Jessica’s Law therefore barred registered sex offenders from living within 2,000 feet of a school or park where children gather, regardless of whether the crimes actually involved children. Sex offenders subsequently challenged the law in court, claiming that it made it impossible for them to find a place to live. The court recognized that the law made over 97% of rental housing in San Diego unavailable, and ruled that the consequences of the law were so severe, it hampered rehabilitation and caused homelessness. Although the unanimous ruling immediately affects only San Diego County, it will certainly pave the way for the same policies in major metropolitan areas, including San Francisco.

What to Do If You Are Charged With a Sex Crime