Criminal Defense

What is Plea Bargaining in California?

January 21, 2011 | Ronald N. Hoffman

A majority of criminal cases do not go to trial, instead they are resolved through a process called plea bargaining. A plea bargain is an offer made by prosecution at your first appearance in court, also known as your arraignment. Prosecution will ask you to plead guilty to a lesser charge. They will get the case completed at the very first appearance, and you will a reduced charge. This benefits prosecution and the court system by quickly resolving cases and keeping the costs low by avoiding trial. Whether this is a good idea for the person being charged depends on the specific facts of the case.

At your arraignment, you are asked to make a plea. This plea can be guilty, not guilty or no contest. When pleading no contest, you are not stating that you are guilty, but that you do not wish to argue the charge. You do not have the option to plead not guilty, or no contest when accepting a plea bargain.sYou must plead guilty in order to receive a lower sentence. The potential consequence of the lesser charge will depend on the case.

When making a plea bargain, you have to consider many things. On the surface it may seem appealing; getting a lesser charge and as a result a lesser sentence for just having to plead guilty. However, there is more to it than that. A plea of guilty will remain on your record. Additionally, it leave no room for negotiation in front of the Judge. An experienced San Diego Criminal Defense attorney can reduce your charge considerably more than prosecution’s plea bargain.

Is there a Separate Charge for California Marijuana Possession While in a Vehicle?

January 19, 2011 | Ronald N. Hoffman

California Health and Safety code §11357 makes it illegal to have marijuana in a person’s possession. The only exception to this law is if someone holds a valid medical marijuana prescription. A prescription is available to those who are determined to be qualified by a licensed physician.sIt allows for holders to have in their possession no more than 8 ounces of marijuana to use for medicinal purposes. California recognizes the prescription as a valid exception, but not in vehicles. Even with a medical marijuana prescription, a person is not allowed to have it in their possession while in a vehicle. They may, however, transport it in their trunk, as long as it is the lawful amount or less.

Similarly, a person caught with marijuana in their possession in a vehicle without a valid prescription, may be charged under California Vehicle code §23222. California Vehicle code §23222 states that any person found with not more than an ounce of marijuana in their possession, other than concentrated cannabis, will be found in violation. The charge is that of an infraction and the person will be ordered to pay a fine.

However, a person who is found with marijuana in their possession while in a vehicle will most likely also be charged with marijuana possession under the Health and Safety Code. When a person is charged with multiple offenses, the potential consequences may fall within a wider range.

When is a California Drug Possession Charge a Felony?

January 16, 2011 | Ronald N. Hoffman

The amount of drugs found in possession of a person in combination of the type of drug will determine the potential sentencing range and the relevant section of the California Health and Safety Code. Consequently, it will determine whether a person is charged with an infraction, misdemeanor or felony.s

In general, the smaller the quantity of drugs, the increased chances of being charged with an infraction or a misdemeanor. California law prior to January 1, 2011, made possession of less than an ounce of marijuana a misdemeanor, and anything more than an ounce, a felony. A recent change in California law has made possession of marijuana under an ounce, an infraction. An infraction is comparable to a traffic ticket. It involves no jail time, just a fine to be paid. Being charged with an infraction, other than dismissal, is the best possible result. Due to the relatively new nature of the law, it is unclear what amount will constitute a misdemeanor and a felony under California law.

The potential charge for drugs other than marijuana will depend on the type of drug and the state in which a person is being tried. In California, drug possession charges will be a felony, regardless ofsquantity, for serious drugs like heroin and crack.

How Does the Type of Drug Affect a California Drug Possession Case?

January 14, 2011 | Ronald N. Hoffman

Under California Health and Safety code §11350 and §11377, the legislation makes it unlawful to be in possession of certain controlled substances, defined by the code section. The type of drug thatsa person is found in possession of will have an impact on the potential consequence a person may face.

Those found in possession of amphetamines, including methamphetamines, may face a potential sentencing range established by California Health and Safety Code §11377. A first time offense has the potential of being charged as only a misdemeanor and has a good probability of being dismissed with completion of a Drug Diversion program.

Possession of Cocaine or Crack is regulated under California Health and Safety Code §11350. First time offenders may be charged with a misdemeanor or felony depending on the quantity found. They may serve up to 3 years in jail but have a strong opportunity to be allowed to enrolls in a Drug Diversion program which, upon completion, will lead to a dismissal of charges.

California Drug Possession Charges and Potential Consequences

January 12, 2011 | Ronald N. Hoffman

California Health and Safety Code §11350 makes it unlawful for a person to be in possession of a controlled substance. Controlled substances are those that are listed by the legislators in California Health and Safety Code §§ 11054 and 11055. These sections do not include marijuana. Marijuana possession is covered by California Health and Safety Code §11357.

To build a case against a person, prosecution uses a totality of the circumstances method. A totality of the circumstances method means that opposing counsel will take the surrounding facts of a person’s arrest to prove that the person was in possession of a controlled substance. For example, if a person is arrested physically holding a controlled substance the prosecutors will use these facts to help build their case. If a person is stopped by authorities and a controlled substance is found in his or her jacket, the prosecutors will have to build a case using the circumstances to show that a controlled substance was found in the jacket, and that jacket indisputably belonged to the person arrested.

Whether a person is charged with drug possession as an infraction, misdemeanor or felony will depend on several different factors. First, on the type of drug they were found with.sIt may be anything from opiates, their derivatives, hallucinogenic substances, certain depressants, to other narcotics and in some cases, prescription drugs. Second, it will matter how much of the controlled substance is found. A greater quantity will lead to a higher potential consequence.

2011 Changes in California Marijuana Law

January 5, 2011 | Ronald N. Hoffman

Legislators are constantly changing and amending laws that affect California citizens daily. Once changed it leaves open the question of whether the law applies proactively, or from beyond its enactment and how it may impact your already existing case.

The new marijuana law that went into effect on January 1, 2011 may reduce your marijuana misdemeanor charge to an infraction under Senate Bill 1449. However, if you have an already existing offense, and an openscase, it is unclear as to how Courts and Judges apply the new legislation.

A knowledgeable San Diego Criminal Defense attorney has researched all new legislation and how it has been applied in courts and current cases. Consequently, they are aware of how Judges are handling cases in the San Diego Criminal Courts. Based on this experience of the Criminal courts they can prepare the best possible argument in your defense so that you can take full advantage of any new laws that will pertain to the facts of your case.

Are the Consequences Harsher for Driving Under the Influence of Drugs than Alcohol in California?

January 2, 2011 | Ronald N. Hoffman

If you are stopped driving under the influence of drugs or alcohol, you may be charged with a DUI. If convicted, your final sentence will depend on several factors, the specific facts of your case and any arguments presented in your defense.

If you are arrested for driving under the influence of prescription drugs, your potential sentence may be on the lower end of the spectrum depending on additional circumstances of your arrest. For example, one of our clients was pulled over for driving under the influence, but had 0 blood alcohol content, but was on prescribed anti-depressants. He was charged with driving under the influence only, with no enhancements or additional charges.

In contrast, if you are pulled over for driving under the influence of illegal drugs: Methamphetamines, Marijuana or Cocaine, you could not only be charged with an enhanced DUI, but may be charged for multiple California offenses.

Possible Defenses for Marijuana Charges in California

December 31, 2010 | Ronald N. Hoffman

The field of Medical Marijuana is fairly new, therefore legislators and courts are still discovering new issues and are uncertain on how to proceed on certain questions. Consequently, determining in which cases a Medical Marijuana Prescription will relieve a person of a charge is assessed on a case by case basis.

Many people who are pulled over for a Driving under the influence of marijuana charge obtain a Medical Marijuana Prescription after the fact and seek to apply it retroactively. The prescription will have only the date the doctor was seen and cannot be legally dated before that.

Nevertheless, this technique has been used repeatedly in court as a defense against a marijuana related charges. Each argument and its effectiveness depends on the Judge and the prosecutor it is presented to. In the majority of cases it has not been a successful defense and Judges have chosen to not honor the post dated prescription.

Invoking your Constitutional Rights during a California Driving Under the Influence Arrest

December 2, 2010 | Ronald N. Hoffman

We have all heard the phrase “plead the fifth” being employed in numerous scenarios. The meaning is derived from the Fifth Amendment of the United States Constitution. The Fifth amendment protects your right to remain silent, consequently, not say anything that may later incriminate you during trial or otherwise.

When stopped on suspicion of driving under the influence, you always have the right to not say anything self incriminating. Self incriminating can be anything, admissions, confessions, as well as statements, that may be used later in court against you.

It is the officers’ job to search for evidence and build a case against you. They may do this by searching your vehicle and asking you direct questions that may lead to a confession. You are not required to answer any questions besides those identifying you and those related to your vehicle registration and insurance. In the scenario that you are asked questions, it is perfectly legal to politely decline.

Legal Defenses to Refusing a Blood Test During a California Driving Under the Influence Arrest

November 21, 2010 | Ronald N. Hoffman

When you are stopped for the suspicion of driving under the influence of alcohol, you are asked to take either a breath or chemical test at the site of the arrest. Additionally, you are asked to take a test at the station once you have been taken into custody. If you refuse to take the breath test, or are unable to, you will be required to take the blood test. If you refuse to do so without a valid reason you may be additionally penalized.

If you have refused to take both tests, there may be some legal defenses that will work in your favor. An experienced Los Angeles DUI attorney can prepare a powerful defense that will help strengthen any possible arguments that you may have.

One possible defense is if you have a fear of needles and cannot take the blood test. If you are able to prove the fear, you may have a strong argument in your favor and the refusal may be set aside. Additionally, if the facility is not clean, or you feel that the needles or equipment used to administer the blood test is not sanitary, you will not be required to take the test and may refuse.