Orange County Criminal Attorneys Blog

California Attorney Lauren K Johnson Interviewed On HuffPost Live About Medical Marijuana Law And Kids

Mon, 10 Jun 2013 14:55:12 -0800

California Attorney Lauren K Johnson Interviewed On HuffPost Live About Medical Marijuana Law And Keeping Kids Safe From Accidental Ingestion

Criminal Defense Attorney Lauren K. Johnson Provides Expert Legal Analysis Regarding Medical Marijuana And Child Welfare Law

Irvine, Calif., May 31, 2013 -- Lauren K. Johnson, a criminal defense attorney with law offices in Irvine, California was interviewed on a panel on HuffPost Live the topic of medical marijuana and the accidental ingestion of medical marijuana products by children. Lauren K Johnson discussed the distinction between legal and illegal drugs and parental responsibility to keep kids safe from accidental ingestion.

A recent Colorado study looked at 14 incidences between 2009 and 2011 in which children were brought to a Denver-area hospital for accidental ingestion of medical marijuana. No previous incidences had been reported. These 14 cases followed a federal policy change in which the federal government declined to prosecute medical marijuana patients in states that have made medical marijuana possession legal. The study questions the implications of increased access of medical marijuana and children's safety.

Lauren K Johnson discussed the importance of parents keeping all lawful drugs out of the reach and away from children. Ms. Johnson discussed her favor for increased warnings to parents about children gaining unintended access to medical marijuana and the need for child-safety caps and other measures to prevent access. Ms. Johnson discussed the importance of keeping keeps safe as there is an increase in medical marijuana use by lawful patients in California and other states.

Lauren K Johnson addressed the issues from a child welfare perspective and the specific factors a court might look for in determining whether parents were negligent. For example, a court would likely consider whether the marijuana was obtained and possessed illegally or as legal medicine, what kind of access and opportunity a child has or had to ingest it, the home conditions and the age of a child.

Other panelists discussed the comparisons and differences between medical marijuana ingestion, other legal and illegal drugs, and alcohol. While current case law in California addresses the ingestion by children of illegal drugs, with the increased use of medical marijuana, courts are bound to address accidental ingestion of medical marijuana due to its continued stigma.

What is California's Deferred Entry of Judgment?

Wed, 10 Apr 2013 12:37:27 -0800

In California, there are certain types of criminal offenses, if you are eligible, which will allow you to avoid getting any conviction at all. It is known as Deferred Entry of Judgment (sometimes referred to as DEJ). For adults, DEJ is used primarily for certain drug offenses. However, more recently the Orange County District Attorney's office has been allowing the use of DEJ in settling other relatively minor (non-violent) criminal offenses, such as Petty Theft and Driving on a Suspended or Revoked License. With DEJ, the defendant pleads guilty, but the court does not enter the judgment, so the conviction is never finalized. The court will impose specified sanctions (such as mandatory attendance at offender rehabilitation programs, fines and/or penalties) to be completed within a certain period of time. In exchange, if all requirements are satisfactorily performed and no new offenses have caused the court to revoke DEJ, the case will be dismissed, without any conviction ever having been entered.

However, unlike with diversion, with DEJ you have already pled guilty, so if you fail to successfully complete the program, you cannot then plead not guilty and go to trial. For this reason, it's important that you and your attorney discuss all possibilities and decide on a strategy that will bring you the outcome most likely to work for you.

Thereafter, the defendant may lawfully indicate in response to questions concerning his or her prior criminal record that he or she was not convicted of a criminal offense The only exception to this is on subsequent peace officer applications, in which case the defendant may not omit reference to the arrest and judgment.

Below are some of the Eligibility and Qualifications for Deferred Entry of Judgment. This list is not exhaustive and does not guarantee that your individual case is eligible for DEJ.

1. You must have no prior convictions involving controlled substances (just for prior drug charges).
2. The offense you are charged with cannot involve a crime of violence.
3. There must be no evidence that you committed any drug offense, such as sale or possession for sale, other than one of the listed offenses (just for prior drug charges).
4. You cannot have ever in the past failed to successfully complete probation or parole.
5. You cannot have previously done DEJ within the last five years.
6. You cannot have any prior felony convictions within the last five years.

If you are facing possible criminal charges or have already been charged and would like to see if your case is eligible for Deferred Entry of Judgment, contact our offices for a free consultation of your case.

DO YOU HAVE AN OUTSTANDING CALIFORNIA WARRANT?

Mon, 01 Apr 2013 09:18:09 -0800

There are two different types of Warrants issued through the Criminal Justice System. Law enforcement will generally issue an Arrest Warrant, which is a written order commanding (authorizing) a law enforcement agency to arrest and/or detain an individual, or allows the search and seizure of one's property. A Bench Warrant is an order by the court "from the bench" issued by a Judge to arrest a person and bring them before the court.

A person may have a warrant out for his or her arrest for a number of reasons such as a complaint being filed against the person by a prosecuting agency, a failure to appear in court when ordered to, a probation violation, a failure to obey court order(s), and others.

Most warrants are issued for Failures to Appear (FTA) in court and Probation Violations. Many individuals that have been convicted of a criminal offense and then fail to complete the terms of their sentence (probation) can have a warrant issued against them. Also, we see individuals that were cited for a crime (yes, even a traffic infraction) that fail to appear on their scheduled court date for a myriad of reasons, such as fear of what will happen in court, they forget the date or lose their citation or they are simply trying to avoid dealing with the offense.

If you have failed to meet any of the terms of your probation, one thing that our office may be able to assist you with is a Sentence Modification, if applicable in your particular case, once the Warrant has been recalled. If your case is a misdemeanor, you may not need to be present when your warrant is recalled. If your case is a felony, you will almost always need to be present when your warrant is recalled.

Once a warrant is issued by the court, it is reported to the Department of Motor Vehicles (DMV). Many clients contact us after they have attempted to renew their driver's license, registration or other dealings with the DMV, only to be informed that they have a warrant issued for their arrest. In the state of California, driving is a "privilege" and not a" right", so if you violate a law, that privilege can be suspended. The longer you wait to resolve an outstanding warrant, the more complicated the process to recall it can be, especially if you are out of state or convicted of a felony. We may able to keep you from going to jail by appearing with you, as often times a judge will order a defendant with a felony warrant to be remanded to jail immediately.

You can hire the Law Office of Lauren K. Johnson to represent you and recall your warrant. By recalling your warrant, the Law Office of Lauren K. Johnson is asking the court to cancel the order for your arrest. Then we can proceed in resolving your underlying case with the most favorable outcome possible. Contact our office for a free confidential consultation.

Drunk In Public (Public Intoxication) - Is It a Big Deal?

Thu, 28 Mar 2013 13:17:45 -0800

One aspect of the college student experience is partying with friends and fellow students at the local bars and clubs. Often times, these college students have no means of transportation and find themselves walking to bars, clubs and to their dorm rooms on campus, sometimes while under the influence of alcohol and drugs.

In California there is a statute that prohibits being "Drunk in Public." To be in violation of Penal Code section 647(f), the "Drunk in Public" statute, you must meet the following criteria:

1. Your level of intoxication makes you unable to exercise care for your safety or for the safety of others, or

2. Your level of intoxication interferes with, obstructs, or prevents others from using streets, sidewalks, or other "public ways".

For the District Attorney to prove that someone was drunk in public they must prove that the individual was so intoxicated and impaired that they could not safely care for themselves or for the safety of others.

Most of the time people are not impaired enough to care for their own safety. Often times they have done something to antagonize the police officer that has come in contact with them. Unlike a DUI arrest, there is usually no chemical test that is performed to test the level of alcohol or drugs in a person's system for a drunk in public charge. We generally challenge these types of arrests on your behalf.

Any arrest that results in a conviction on your record is something to be very concerned about. If you are a college student and applying for your first job out of school or applying for financial aid, and if you were arrested and charged, this conviction will show up on a background check. Prospective employers may be hesitant to offer you a position and could very likely assume that you have an alcohol or drug problem.

In addition, under California Vehicle Code section 13202.5, if you are under 21 years of age and you are convicted of public intoxication, you may lose your driver's license for up to one year, even if you were not driving a vehicle. Also, if you do not yet have the privilege to drive, the court could order the department to delay issuing the driver's license for one year subsequent to the time you become legally eligible to drive.

It is imperative that you contact an experienced criminal defense attorney to advocate on your behalf if you are facing a drunk in public charge. Contact our office today for a free consultation.

NEW APP TO TEST YOUR BLOOD-ALCOHOL LEVEL ON YOUR SMARTPHONE, COMING TO MARKET

Tue, 26 Mar 2013 12:18:31 -0800

Breathometer, a California start-up, has developed a smartphone blood-alcohol tester. It is a small device, similar to the latest new trend of credit card swipers, that plugs into a smartphone's headphone jack and works with an application that you would download that runs the device.

The company launched a campaign in hopes of raising money to produce and market the device. They are also allowing anyone interested to order it. Pledge levels have ranged from $20 for a Breathometer device to $500 for a lifetime upgrade to all Breathometer products.

The device will work with all iPhone and Android smartphones. In addition, to informing all users that they could be too impaired to drive, the smartphone app will also include information on local transportation such as cab/taxi companies. The company is currently seeking FDA approval for the Breathometer, with a patent pending. They hope to make the product available to the public by the summer.

There are also other products on the market currently, some of which sell for as little as $30 and can fit onto your keychain. Non-electronic crystal-based breath analyzers are available for less than $3.

We strongly recommend that if you want to be truly safe, it is best not to drink and drive at all.

The Law Office of Lauren K. Johnson is proud to represent all those who have been charged with a DUI offense in our area. We understand that a DUI conviction can carry life-altering results. If you or a family member has been arrested for driving under the influence, get in touch with our office as soon as possible after the arrest to ensure that you have an advocate on your side every step of the way. We can be reached by phone at 949-679-7745 or you can send us a message online for a free consultation.

CALIFORNIA MARIJUANA ARREST AND CONVICTION RECORD DESTRUCTION - CHANGES PENDING

Mon, 25 Mar 2013 11:56:38 -0800

The Governor of California has a put forth a trailer bill in which one of the items to be amended are the laws governing the disposition of Marijuana Arrest and Convictions records. Specifically, section 11361.5 of the Health and Safety Code is targeted. Currently HS 11361.5 mandates that the courts destroy the arrest records or convictions as set forth under these conditions:

HS 11361.5 (a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 or subdivision (b) of Section 11360, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction, except with respect to a violation of subdivision (e) of Section 11357 the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section. Any court or agency having custody of the records shall provide for the timely destruction of the records in accordance with subdivision (c). The requirements of this subdivision do not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to that date. This is how it currently works.

What would the statue look like if it gets amended?

What is being amended is that now the person that was either arrested or convicted of subdivision (b) must now apply for the destruction of his/her own records without notification or by being reminded by the court that they are eligible to do so. This is really a cost cutting issue (defraying the costs) involved in destroying these records

If you were arrested and not convicted or were convicted of a Marijuana charge under HS 11357 or subdivision (b) of HS 11360, you must wait the statutory two year period from the date of the arrest if there was no conviction, or if you were convicted, you may apply to the Department of Justice for the destruction of your records pertaining to the arrest or conviction, again only if two or more years have elapsed. You will have to pay a fee ($37.50 is currently proposed). In addition, the Department may request, but not require a self-administered fingerprint upon application, which in many instances will cost you another $60 to $80 for a live scan fingerprint submission.

Once all of the paperwork has been properly submitted, fingerprints and identity have been verified, the Department of Justice will destroy any records of your arrest or conviction. If for any reason the applicant fails or refuses to submit fingerprints to the department within a reasonable time, or if an applicant requests a refund of the fee, the department will mail a refund, and notify the applicant that election to abandon the application may result in forfeiture of a specified amount that is a portion of the fee (not to exceed $10) and refund the rest.

The implications are vast. First, most people that are arrested and never convicted do not exercise their right to have their arrest record destroyed either knowingly or having never been informed of this right. Second, there is no indication that the Department of Justice or the local courts are going be informing individuals whether formally or informally that they can have their arrest or conviction records destroyed after the statutory two year period.

The Law Office of Lauren K Johnson represents many clients that have been arrested for various marijuana related crimes. If you are currently facing a marijuana related charge, contact our office today for a confidential consultation about your case.

DNA CASE APPEARS TO BE DIVIDED IN THE UNITED STATES SUPREME COURT

Tue, 05 Mar 2013 13:33:54 -0800

In 2009 Alonzo Jay King Jr. was arrested for assault in the state of Maryland. Pursuant to Maryland's DNA Collection Act (Maryland law that allows officials-without a warrant- to take the DNA of someone who has been arrested but not convicted of a serious crime). The federal government and 28 other states have similar laws, including California (California Penal Code §296).

Subsequent to the arrest and DNA collection, officials were able to eventually produce a match through the CODIS DNA database (CODIS is a computer software program that operates local, State, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons) with a previously unresolved rape case from 2003. At trial King argued that the DNA draw violated his constitutional rights, but he lost and was sentenced to life in prison for the 2003 case. In April, an appeals court ruled in favor of King. The Court said that King's rights to be free from unreasonable warrantless searches had been violated.

In Maryland v. King during oral arguments, Kannon K. Shanmugamer, King's lawyer argued that the taking of DNA is distinguishable from the taking of fingerprints because DNA contains far more information, the search is physically intrusive, and law enforcement's primary purpose to take the DNA is not for identification purposes. "Maryland searched my client without a warrant in order to investigate crimes for which there is no suspicion," Shanmugam argued "It is settled law that warrantless, suspicionless searches are presumptively unconstitutional."

During animated arguments the Justices seemed divided on some key issues. One of the central questions in front of the court as Justice Alito eloquently stated is:"So this is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy. But why isn't this the fingerprinting of the 21st Century?"

Justice Elena Kagan posed critical questions regarding the law. She asked the Chief Deputy Attorney General of Maryland, that if the purpose of the law is not so much for identification, but to solve cold cases, "then it's just like searching your house, to see what's in your house that could help solve cold cases." A search of the home- unless there is an emergency- requires a warrant. "Just because you've been arrested, doesn't mean that you lose the privacy expectations and things you have that aren't related to the offense that you've been arrested for," Kagan said.

The United States government favors the law, and argues that arrestees lose some of their privacy by virtue of the fact they've been arrested, "Arrestees are in a unique category, they are on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights." Deputy Solicitor General Michael R. Dreeben noted that when someone is taken into jail he is subject to a visual strip search. If he's admitted into the prison population a TB test and a thorough medical screen is done.

Dreeban went on further to say that the DNA collection is not any different than submitting to fingerprints, it is primarily for identification purposes. The fingerprint comparison brought up another concern of the Justices. A fingerprint analysis is almost immediate while DNA can take days or sometimes weeks to analyze depending upon the available technology and back log. How can something that can take days to acquire have a primary purpose for identification.

He said that soon this distinction won't matter. "The future is very close to where there will be "rapid DNA analyzers" that are devices that can analyze and produce the identification material in the DNA within 90 minutes."

In the state of California if you were arrested for a Felony and submitted a DNA sample pursuant to Penal Code 296 and charges against you were never filed or were later dismissed, you can petition the court to have your DNA sample expunged pursuant to Penal Code §299.

The Law Office of Lauren K Johnson represents many clients that are arrested for various felonies and were subjected to providing a DNA sample at the time of their arrest. Contact our office today for help with your case.

Alarming Rate of Foster Children Given Psychiatric Medication

Thu, 14 Feb 2013 15:04:55 -0800

According to an article in The New York Times, in 2003 researchers analyzed the Medicaid records of 637,924 minors who were either in foster care, receiving disability benefits for a diagnosis of severe autism or bipolar disorder, and some were also in a social services program known as Temporary Assistance for Needy Families (TANF). The researchers found that 16,969, or about 3 percent of the total, had received at least one prescription for an antipsychotic drug.

The foster children were the ones who most often got more than one such prescription at the same time - 9.2%, versus 6.8% for children on disability and 2.5% for children in the TANF program.

A new study published in the journal Pediatrics reveals a concerning new trend for children in foster care and the regular prescription of antipsychotic drugs like Risperdal and Seroquel. These powerful drugs are commonly used in adults to treat schizophrenia and bipolar disorder. According to a 2009 Times article, the side effects of a medication like Risperdal can be profound and include rapid weight gain, which can lead to other health problems like hypertension and diabetes, also very common in adults taking these same drugs.

There has been an approximate 4,000 percent increase in children being diagnosed with bipolar disorder and the use of antipsychotics since 1998, and many were being prescribed drugs, that in some cases had only been tested on adults.

Susan dosReis, an associate professor at the University of Maryland School of Pharmacy and the lead author of the report, said "The kids in foster care may come from bad homes, but they do not have the sort of complex medical issues that those in the disabled population do."

The implication, Dr. dosReis and other experts said: Doctors are treating foster children's behavioral problems with the same powerful drugs given to people with schizophrenia and severe bipolar disorder. "We simply don't have evidence to support this kind of use, especially in young children," Dr. dosReis said.

U.S. Court Of Appeal Calls Marijuana Schedule One Narcotic

Thu, 07 Feb 2013 13:51:05 -0800

On Tuesday, January 22, 2013 the U.S. Court of Appeals for the Washington D.C. Circuit ruled that marijuana will remain illegal for doctors to prescribe as medicine. The court agreed with lawyers from the U.S. Drug Enforcement Agency (DEA) who argued that there are no "adequate and well-controlled" studies that document any medical benefits of marijuana use.

Currently marijuana is on the same list of addictive and otherwise harmful narcotics such as peyote, LSD and Ecstasy (although methamphetamine and heroin are not on the same list). The Coalition for Rescheduling Cannabis, which includes the ASA (Americans for Safe Access, the country's leading medical marijuana advocacy organization) have been trying for years now to remove marijuana from the government's list of addictive and harmful narcotics.

Joe Eford, the lead attorney for Americans for Safe Access argued that the court's findings, "To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise." The Coalition for Rescheduling Cannabis and the ASA filed the original petition to have marijuana reclassified nine years. It took the DEA nine years to finally respond (see article:
http://blogs.ocweekly.com/navelgazing/2011/07/obama_says_marijuana_is_not_me.php) at which point they rejected the petition.

The ASA plans to appeal the ruling to the U.S. Supreme Court, but is also calling on both Congress and the President to unilaterally end the war on pot. Now that states like Colorado and Washington State have passed laws legalizing the recreational use of pot, Elford argued. "It's time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office."

SCOTUS HEARS DWI/DUI CASE INVOLVING FORCED BLOOD DRAWS AND THE 4TH AMENDMENT

Sun, 20 Jan 2013 10:33:31 -0800

The United States Supreme Court considered the 4th amendment implications of forced blood draws in DUI cases in the case of Missouri v. McNeely. The justices are considering whether forced blood draws violated the Fourth Amendment right against unreasonable search and seizure.

On October 3, 2010 Missouri state police officer Mark Winder observed Tyler McNeely driving above the posted speed limit. Upon making contact with McNeely, the officer observed that his eyes were red and glassy and that his breath smelled of alcohol. McNeely performed poorly on the administered Field Sobriety Tests and refused to submit to a breathalyzer test.

He was placed under arrest and transported to a hospital for a blood sample. The officer did not obtain a warrant from a judge before allowing the hospital to draw a sample. The blood test revealed that McNeely's blood alcohol level was above the legal limit. Officer Mark Winder testified that in many similar cases that he sought to obtain a warrant from a judge before obtaining a blood draw. In most cases it took 20 minutes to an one hour to obtain the warrant. However, in this case he went ahead and did so without seeking a warrant.

The state charged McNeely with driving while intoxicated. He immediately moved to suppress the blood evidence, stating that it was obtained without a warrant. The trial court granted this motion. The state appealed. The Missouri Court of Appeals held that the trial court erred, it transferred the case to The Supreme Court of Missouri, which affirmed the trial court's decision.

The question at the core of the case is, can a forced blood draw be done without a search warrant? The Fourth Amendment states: The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause..

The Supreme Court justices indicated that a blood test is a very "intrusive" procedure and therefore a warrant could be required. The laws in each state vary but the questions raised at Oral Arguments were two-fold. First, is there enough "Probable Cause" to demand a blood sample without warrant? And are there "Exigent Circumstances" as the Respondent contends? The respondent stated that the declining blood alcohol levels by the minute are crucial and without a timely sample, sustaining a conviction for DWI/DUI would be more difficult, so it would fall under the scope of "Exigent Circumstances."

The decision by the SCOTUS is likely to affect DUI cases in Orange County and other counties throughout the country.

CITY OF LAKE FOREST REPEALS SEX OFFENDER ORDINANCE

Mon, 14 Jan 2013 18:01:45 -0800

The City Council of Lake Forest voted 3 to 2 to approve the repeal of the sex offender ordinance they adopted unanimously about a year ago. A registrant sued the city in federal district court, who is challenging the ordinance because it violates both the state and federal constitutions. At least one additional court challenge from two city residents had been promised if the city did not repeal its ordinance.
The Orange County Board of Supervisors approved the ordinance in April 2011 (ORANGE COUNTY CODIFIED ORDINANCE 3-18-3 (PROHIBITED OFFENDER ENTERING A COUNTY PARK) which significantly restricts the movements of registered sex offenders, banning them from entering some beaches, parks and harbor areas. Under the rules, sex offenders who visit any of dozens of public spaces without prior approval from county officials face up to six months in jail or a $500 fine. These included areas such as Newport Harbor, Irvine Regional Park and the Orange County Zoo.

But critics such as the CA RSOL (California Reform Sex Offender Laws) immediately expressed skepticism about the law, saying it would be difficult to enforce and appeared politically motivated. Franklin Zimring, a UC Berkeley law professor, said the law was overly broad and misdirected, because more than 9 out of 10 sex crimes targeting children are committed not by strangers in a park, but by family members or acquaintances.

The City of Lake Forest is just one of the 16 cities in Orange County that have adopted ordinances that prohibit registrants from entering public parks and beaches. One of those cities - Santa Ana - also prohibits registrants from entering the public library. And almost half of those cities are facing lawsuits that are being challenged in the courts.
The Orange County District Attorney's office has vowed to continue enforcing the law even as many cities that adopted the ordinance may now follow the lead of Lake Forest. Sheriff Sandra Hutchens has asked her department to stop enforcing the law.
The conviction of Hugo Godinez, a registered sex offender who was ordered to serve 100 days in jail for attending a Cinco de Mayo party at Mile Square Park, a county facility, in Fountain Valley in 2011is one example of how registrants are being charged under this ordinance (See District Attorney press release).

Orange County is the only county in the state to ban all registered sex offenders -- even those who haven't been convicted of a crime against children -- from going to a county beach or spending time in a county park. And although registered sex offenders can apply for an exemption for work or a family gathering, few have been approved.

California Court of Appeal Rules Medical Marijuana Off-Limits For Offender

Tue, 08 Jan 2013 15:33:51 -0800

As the battle over the legality of medical marijuana rages on in the state of California, it remains clear that, while legal for medicinal purposes, there are limits to the extent to which medicinal marijuana users can avail themselves of its benefits. Nothing illustrates this fact better than the California First District Court of Appeals recent decision in People v. Leal, where the Court determined that trial judges can prevent medical marijuana users from using or possessing the drug as part of probation imposed pursuant to a criminal conviction.

The Court's 3-0 decision, upheld the sentence of Contra Costa County Superior Court Judge Leslie Landau, prohibiting criminal defendant Daniel Leal from using or possessing medical marijuana during a three-year term of probation. In 2009, Leal was convicted of possession of marijuana for sale following a jury trial and was sentenced to serve three years on probation.

As part of probation, Judge Landau ordered that Leal was not to "use, possess, or have in your custody or control any illegal drugs***and that includes marijuana," commenting that she found that Leal was "much more likely to engage in future criminal activity selling marijuana again if he is in possession of it for medical use***so he's going to have to find some other way of medicating himself other than using marijuana." Leal appealed the sentence, arguing that that the trial court's condition that he not use or possess marijuana violated his right to use marijuana under California's Compassionate Use Act.

In holding that Leal was not entitled to use medicinal marijuana, Justice Anthony Kline opined "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

Kline further remarked that judges must "balance the need to protect the public with California residents' right to the use of medical marijuana" and that there may be situations where a criminal defendant's use of marijuana could be justified by a compelling need for its use as medical treatment.

Commenting on the Court's decision, Leal's appellate attorney maintained that, although consistent with California appellate court rulings on this issue, in issuing a detailed 22-page opinion, the First District may have intended "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

On a previous occasion, this blog has addressed the complications that have accompanied California's legalization of marijuana for medicinal use. Leal's case exemplifies another of those complications and illustrates the need for criminal defendants to have experienced legal counsel prepared to deal with such issues.

Rising Rate of Incarcerated Female Juveniles

Tue, 01 Jan 2013 15:39:23 -0800

According to a recent story published on NPR, the last ten years have witnessed a decrease in the number of incarcerated male juveniles and an increase in the number female juveniles being detained in jails and residential institutions.

A report entitled "Improving the Juvenile Justice System for Girls", from the Georgetown Center on Poverty, Inequality, and Public Policy, estimates that females make up the fastest-growing segment of the juvenile justice system, accounting for more than 300,000 arrests and criminal charges each year.

Co-author of the report, Georgetown University professor Peter Edelman, maintains that many of the girls that end up in the justice system have family problems, trauma or a history of abuse. Edelman claims that over fifty percent of the female juveniles aren't being detain for serious crimes but more often are skipping school, breaking curfew or running away from home. Edelman believes that "Getting them back into school and getting them back on a path without invoking the sanctions of the juvenile and criminal justice system... is so much better in terms of not leaving those wounds and scars and preserving the possibilities for the future."

The Georgetown report contends that juveniles don't belong in adult jails or prisons and should not be incarcerated for minor offenses such as violating probation. This position has come under sharp criticism from opponents such as Dakota County, Minnesota district attorney James Backstrom.

In the NPR story Backstrom argues, "We're talking about kids that are violating curfew laws, being truant from school [and] violating court orders. Do we need the authority to pick those kids up? I think we do." Backstrom continued, saying "[I]f you ignore the small issue, you might not get to the big issue before it's too late."

It would appear that some states, including California, are moving at least a little closer to the position outlined in the Georgetown Report. As previously discussed by this blog, the California Supreme Court, in People v. Caballero, recently struck down lengthy prison sentences for juveniles on non-homicide offenses that effectively amounted to a sentence of life without parole.

One example of the negative impact the justice system can have on juveniles is Jabriera Handy. Four years ago, Handy was incarcerated at the Baltimore City Detention Center after her grandmother died of a heart attack shortly after Handy fought with her. Because her grandmother had died so shortly after the fight, Handy was charged as an adult with second degree murder and spent eleven months in the detention center.

Handy recalled one instance where the detention center was locked down after another inmate was stabbed to death. According to Handy, she saw the man was" just laying there with a limp body," but had to continue on to school like nothing had happened. "[I]t wasn't like anybody came to us to talk about what [we had] just seen," Handy stated.

Los Angeles Involuntary Manslaughter Case Involves Death of Firefighter

Mon, 24 Dec 2012 15:20:23 -0800

The Los Angeles Times reported that fire safety expert Dale Feb is expected to testify at a preliminary hearing in the criminal case against forty eight year old Gerhard Becker, a German national and architect, who has been charged with one count of involuntary manslaughter in the death of forty-year veteran of the Los Angeles Fire Department, Glenn Allen. Becker stands accused of negligently installing fireplaces designed for outdoor use inside his Hollywood Hills mansion that caused a massive fire at the residence.

Over eighty LAFD firefighters responded to the blaze on the night of February 16, 2011, with nineteen becoming trapped as it spread throughout the home. As the fire progressed, the ceiling collapsed, dumping hundreds of pounds of plaster and lumber on Allen. Other firefighters immediately came to Allen's aid, using chainsaws to dig him out, however, he was not breathing by the time he was rescued. Allen was resuscitated at the scene and rushed to a nearby hospital, but died two days later.

Fire inspectors discovered that Becker had installed four outdoor fireplaces inside his home after its final inspection that allegedly lacked required firebreaks to stop flames from spreading out and were constructed with combustible materials. According to a search warrant drafted by Los Angeles Police Detective Gregory Stearns, "If these fireplaces were present at final inspection of the residence, the inspection would not have been approved. As constructed and installed, they constitute a present, extreme, immediate and imminent hazard."

In California, involuntary manslaughter is defined by Penal Code Section 192(b) as an unlawful killing of a human being "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."

An "unlawful act" is either a misdemeanor or an infraction, and is not necessarily something that is inherently dangerous. An act performed "without due caution and circumspection" is essentially the same thing as criminal negligence, i.e. an act which is "aggravated, reckless and flagrant and which is such a departure from what would be the conduct of an ordinary prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such an act." Involuntary manslaughter carries a maximum penalty of four years in prison and a $10,000 fine.

As this case shows, while rare, these criminal charges can be filed even in unique cases like this one. However, those charged often have very strong legal defenses--merely making a mistake is not always enough to be convicted of a crime.

Recent Study Finds That California Drivers More Likely To Drive High Than Drunk

Mon, 17 Dec 2012 14:43:41 -0800

According to a recent survey conducted by the California Office of Traffic Safety, drunk drivers may not be the biggest problem facing law enforcement in patrolling the state's highways. The survey tested 1,300 drivers in nine California cities on Friday and Saturday nights, finding that fourteen percent were under the influence of drugs, while only approximately seven percent were under the influence of alcohol. Marijuana, found in 7.4 percent of drivers, was more common than 7.3 percent for alcohol, 4.6 percent for other illegal drugs, and 4.6 percent for prescription or over-the-counter medications.

A statement released by the Director of the Office of Traffic Safety, Christopher Murphy, opined that the study's "results reinforce our belief that driving after consuming potentially impairing drugs is a serious and growing problem." The press release continues, explaining that, likely due to the added expense of testing, driving under the influence of drugs is under-reported and under-recognized.

In response to this issue, the Office of Traffic Safety and the California Highway Patrol have been providing law enforcement with specialized training to detect and apprehend drug-impaired drivers. Further, District Attorney's offices in 20 counties have created "vertical prosecution" teams that follow drug-impaired driving cases from arrest through trial and the Regional Traffic Safety Resource Prosecutors are training District Attorney's on techniques to prosecute such cases.

Unfortunately, these new efforts might mean that even more community members in our area will unnecessarily face serious long-term challenges as a result of more aggressive criminal prosecutions.

Opponents of these new initiatives claim that, in at least some circumstances, driving under the influence of drugs is not as dangerous as driving drunk. Maia Szalavitz of Time Magazine recently wrote an article entitled "7% of California Drivers Test Positive for Marijuana, but Are They Impaired?" wherein she stated that, "Research suggests that stoned users on the road are not as impaired as those who drink alcohol are, and there is some evidence that those who use marijuana, particularly for medical purposes, may be staying off the roads anyway."

According to Szalavitz's article, there still remains a question as to whether individuals who have tested positive for marijuana remain under the effects of the drug at the time they are driving. A review of data performed by Canadian researchers found that driving within three hours of using marijuana was associated with a 92% increased risk of fatal or near-fatal accidents. However, even though Tetrahydrocannabinol ("THC"), the active ingredient of marijuana, can remain in blood and saliva a variable amount of time after use, the "high" only lasts three to five hours.