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The Dos and Don'ts of Medical Marijuana Cultivation in California

December 23, 2013,

Despite the legalization of growing medical marijuana in California in 1996, it still remains illegal under federal law to grow, sell, or use the drug. Those who do grow within the state's regulations do not usually find any problems with the federal government. The legalization of medical marijuana cultivation has been used as a medical defense in people who are suffering from illnesses such as chronic pain, insomnia, and anxiety. However, specifics between both state and federal regulations still remain in the possession, sale, and cultivation of marijuana.

Marijuana and the California Law

  • Possession of one ounce of marijuana or less is an infraction, punishable with a $100 fine
  • Possession of more than one ounce of marijuana is a misdemeanor, punishable up to $500 plus six months in jail
  • Possession with intent to sell and cultivation are considered felonies, punishable with a possible state prison sentence

There are many other factors that can also affect jail time and fines, such as how many plants and any prior convictions.

Marijuana and the Federal Law

Despite California state regulations, the federal government can take down individuals participating in medical marijuana cultivation based on the Controlled Substances Act (CSA). The CSA is "the federal U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain substances is regulated." Medical or not, marijuana is considered illegal as a Schedule I substance, similar to heroin, under federal jurisdiction.

Being a Schedule I substance, federal punishment for marijuana conviction can be harsh. For example, no matter how grown a marijuana plant may be, it automatically counts as a full plant as long as it is growing, which is equivalent to 100 grams of marijuana. It is common for a marijuana defendant to be convicted in federal court, reaching sentences that range from one day to twenty years.

You and the Law

Being familiar of the factors that can affect how much you will be fined or the severity of the punishment is important. The conviction between the intent to sell and the recreational use of marijuana is extremely different. Growing a plant that is closer to a school and kids versus a place that is further, can affect an individual's punishment as well.

If you want to avoid harsh state penalties, do not grow an abundance of marijuana plants. The fewer, the better. This will attract less attention of federal authorities. Also, you want to suffice your own medical needs. If you are caught of an excessive amount that is more than medically needed, there is a high risk that you will be charged with a felony.

Your Rights and the Law

Be aware of your rights when it comes to the cultivation of marijuana in California. A cop must have a search warrant present to have the authority to search your house and property. Also, you practice the right to counsel. You are not required to answer any questions without a lawyer.

Continue reading "The Dos and Don'ts of Medical Marijuana Cultivation in California" »

Four Arrested for the Alleged Kidnapping and Torture of Medical Marijuana Proprietor

December 16, 2013,

Last week, four people were charged for their involvement in an alleged kidnapping that ended with a man's penis being cut off. According to a report by the NY Daily News, one of the group members had conducted business with a medical marijuana dispensary owner and knew him to be a wealthy man. One of the group members allegedly told the three others that the man had buried large amounts of money in the desert and convinced them to help him kidnap the man and have him direct them to the buried money.

The group allegedly showed up at the man's home, robbed the man and his girlfriend, and then placed them in the back of a van. From there, they drove the couple to the desert to the spot where the group thought the man had buried the money. While at the spot, the group cut off the man's penis and took it with them after they poured bleach over the man to destroy any DNA evidence.

The man's girlfriend was able to flag down a police officer by running--while bound and gagged--for over a mile. One of the men was recently arrested in Prague. The four have been charged with kidnapping for ransom, aggravated mayhem, torture, burglary and a sentencing enhancement for inflicting great bodily injury. In convicted they face a potential sentence of life in prison without the possibility of parole.

Life in Prison Means Life in Prison

It used to be the case that a life sentence meant only twenty to thirty years, however that has recently been changing. As of lately, juries and judges are sentencing those convicted of serious offense to life in prison without the possibility of parole.

Parole is what used to let people with "life sentences" out of prison well before the end of their life. However, with the new trend to keep offenders in prison for life--without even the possibility of letting them out--prisons are becoming more crowded with offenders that committed the offense decades ago.

And while California's three-strike rule was recently overturned, this does not help those sentenced to life in prison without the possibility of parole in cases where they were sentenced for a violent crime, because the new law repealing the three strikes rule doesn't apply to violent offense.

Continue reading "Four Arrested for the Alleged Kidnapping and Torture of Medical Marijuana Proprietor" »

Police Seize 107 lbs of Methamphetamine in Southern California Drug Bust

December 9, 2013,

After an investigation that lasted over a month, investigators arrested four men who are suspected to belong to a Southern California drug trafficking ring. The men, who are alleged to have imported cocaine, heroin, and other drugs to the United States from Mexico, are all being detained awaiting trial. They each face sentences that could be longer than they could serve in their lifetime.

According to a report by NBC LosAngeles, police investigators set up an undercover sting operation where an officer attempted to buy drugs from the suspects. Once the officer was in possession of the drugs, other officers obtained a warrant and searched the residence, where police found an additional 107 lbs of methamphetamine, 9.5 lbs of cocaine, ½ lb of heroin, and almost $30,000 in cash.

Police Are Cracking Down on Drug Dealers

If you have been paying attention to the headlines lately, you will have noticed that police are tightening down on drug dealers across the State of California. Not just large-volume dealers, like the ones in this story, are at risk. Police are even setting up sting operations to catch small-time, neighborhood dealers more than in years past.

When it comes to punishments, the amount of the drug possessed does not always matter. This is because there are only a few tiers of possession and, whether you are at the top end or the bottom end doesn't make any difference in the sentence you will receive.
California has also taken new approaches to hunt down drug dealers versus casual drug users like Assembly Bill 721, authored by Assemblyman Steven Bradford, D-Gardena. He reasons that "too many people are getting caught up in the prison system with nothing more than a small amount of drugs for personal use." This will apply felony drug-transportation charges to individuals involved in drug trafficking or sales instead of average day to day users.

There Is No Such Thing As a Non-Serious Drug Crime

All drug crimes are serious in the state of California. Some people are deceived because the state has a liberal stance on marijuana consumption; however, that same stance does not necessarily apply to other more serious drugs. For instance, in California, a first-time offender convicted of possession with intent to distribute faces a fine of up to $1,000 and five years in state prison.

Once you have one conviction on your record, any following convictions are treated more seriously. Although California's "three strikes" law was recently repealed, that does not change the fact that repeat offenders are punished harshly in California.

Continue reading "Police Seize 107 lbs of Methamphetamine in Southern California Drug Bust" »

California Loses Appeal to US Supreme Court Hoping to Reverse Prison Overcrowding Ruling

December 2, 2013,

In a victory for civil rights advocates across the country, the US Supreme Court refused to hear the State of California's appeal hoping to reverse an earlier ruling that required the State to make meaningful reform to address the State's overcrowded prisons.

Several years ago, the US Supreme Court ruled in favor of a group of inmates claiming that the overcrowding in California prisons was so bad that the conditions were unsafe. Most notably, they argued that proper medical attention could not be given to all inmates. The State has done all that it can to avoid complying with that ruling. This recent denial is the final nail in the coffin, so to speak, of the State's options to avoid compliance.

While the exact requirements are quite confusing and beyond the scope of this blog post, the bottom line is that California prisons will have to cut about 10,000 inmates from the prison system. Now. This does not necessarily mean letting people go with no strings attached. The State has until January to come up with a plan to decrease the prison population.

What Can California Do To Decrease Prison Overcrowding?

The State is considering a number of options to decrease the overcrowding in it's prisons. The first is to rely more heavily on drug treatment and mental health services rather than incarceration.This should divert many incoming inmates to these other services rather than landing them in prison. Rehabilitation has been seen as more effective as incarceration in relation to recidivism.

Second, the State is considering spending $300 million dollars to ship inmates to private prisons or prisons located in other states, such as Mississippi, Arizona, and Oklahoma. Of course, while this would decrease prison population, it would also cost the State of California a hefty sum and would rely on other states to do our work.

Another possible avenue for inmate reduction is to focus on low-threat offenders, such as juveniles and the elderly, who may have long prison sentences. They would go through a review session first and must qualify under specific criteria. For the elderly, however, it has been seen that they are less likely to return to prison after the age of forty. Both juvenile and elder groups, it is argued, are less of a threat to the community or may be better held in an alternative location, like a juvenile facility or a half-way house. Other groups they are looking into as well are the seriously ill, immigration violators, and other nonviolent perpetrators.

Sentencing reforms have also been taken into effect, such as the reform of the Three Strikes Law. In the past, no matter how minor or nonviolent an individual's crime was for his or her third felony, it immediately led to a life sentencing. However, with the reform, the third felony must be considered as "serious" or violent, like murder.

Continue reading "California Loses Appeal to US Supreme Court Hoping to Reverse Prison Overcrowding Ruling" »

As Biometric Authentication Becomes More Prevalent, the Technology May Affect Criminal Constitutional Law

November 25, 2013,

The ever-popular device manufacturer, Apple--mother of the iPhone--has announced that the next generation of the popular phone will use biometric authentication to unlock it. Biometric authentication is not an unfamiliar technology, especially for those fans of spy movies. The technology, which has been around for a few years in other applications, verifies a user's identity by their unique fingerprint.

While many look forward to the new technology, certain repercussions of the technology remain alarming. For example, a recent article by Wired notes that, as the technology becomes more prevalent, it might affect our constitutional rights. Indeed, the article explains that, under the current legal system, courts can require defendants and witnesses to hand over non-testimonial evidence, such as physical evidence, say a key to a box. However, the courts cannot require a defendant or witness to incriminate himself by forcing him to testify against himself.

You Have the Right to . . .

The right to be free from self incrimination is commonly known as "pleading the fifth," and refers to the Fifth Amendment to the US Constitution. That Amendment guarantees that citizens will not be required to testify against themselves. However, the right only applies to "testimonial" evidence. Testimonial evidence, the article explains, is evidence which "reveals the contents of your mind."

The concern over fingerprint evidence is this: currently, courts cannot require a witness or a defendant to divulge a password, because doing so would require the defendant to "reveal the content" of his mind. However, if passwords are not combinations of letters and numbers that we keep in our minds, but are our unique fingerprints, perhaps courts could require defendants provide their "passwords" at trial.

Who Will Be Affected By the New Technology?

This would probably have the largest effect on white collar crime and identity crimes, where the use of a specific password would be at issue. Don't be mistaken, the Fifth Amendment and all that it stands for will still apply in all contexts, however, biometric authentication might act as a way around the privilege in some cases.

However, this technology can actually affect any individual who uses the iPhone who stores information that could be used against them in a court of law. Therefore, it is important to know your rights in this area.

Continue reading "As Biometric Authentication Becomes More Prevalent, the Technology May Affect Criminal Constitutional Law" »

Can Juvenile Defendants Be Tried As Adults in California Courts?

November 19, 2013,

In the justice system, there is one path for adult offenders and another for juvenile offenders. The adult system focuses on deterrence, retribution, punishment, and, to a lesser extent, rehabilitation. The juvenile system, however, is focused exclusively on providing rehabilitation and guidance to the offending juvenile with hopes of decreasing the chance of any future infractions.

Along those lines, generally speaking, the system allows many juveniles to serve sentences that do not include incarceration. Even when a sentence does include incarceration, it is not typically in an adult jail, but rather in a "youth camp" or "juvenile hall." Sentences in the juvenile justice system tend to be centered around community service, probation, removal from unsafe environments, etc.

However, there are a few ways that a juvenile aged 14 or older might end up in the adult criminal justice system. First, the California legislature has determined that there are some crimes for which even juveniles should be tried as adults. These are generally very serious crimes that may carry long prison sentences with them. For example, a juvenile charged with murder will almost certainly be "directly filed" into adult court. This means that the juvenile offender will never appear before a juvenile judge but instead will go immediately to adult court. The decision whether or not to "direct file" a juvenile offender rests solely with the prosecutor.

Second, if a juvenile is charged with one of several aggravated offenses, and has committed a prior offense, the case is required to go straight to the adult system.

Third, the prosecutor can file for a juvenile fitness hearing to determine whether the juvenile defendant is suitable for rehabilitation. In this hearing, the judge will consider several factors, including:

1. The degree of criminal sophistication exhibited by the juvenile;
2. Whether the juvenile offender can be rehabilitated before juvenile court jurisdiction expires;
3. The juvenile's previous delinquent history;
4. The success of previous attempts by juvenile court to rehabilitate the juvenile; and
5. The circumstances and gravity of the offenses alleged to have been committed by the juvenile.

If, after considering these factors, the judge believes that the juvenile offender is not amenable to rehabilitation, then the juvenile offender can be transferred to adult court and tried as an adult.

Once a juvenile is in adult court, there are only very few limitations on the sentence that the juvenile can receive. For the most part the juvenile will be sentenced in the same way an adult would be sentenced.

Continue reading "Can Juvenile Defendants Be Tried As Adults in California Courts? " »

Consent to Search: Know When to Say "No."

November 6, 2013,

Any criminal defense attorney will tell you, one of the most frustrating things to see is when someone consents to an otherwise unreasonable search. Under the Fourth Amendment to the United States Constitution, a police officer is not permitted to conduct a search without "probable cause" of some wrongdoing. Searches of automobiles can be justified by a slightly less stringent burden of "reasonable suspicion" that criminal activity is afoot. However, if a person gives consent to the officer for a search, then the search no longer needs to be justified by probable cause or reasonable suspicion. In most cases, searches that are consented to are tough to challenge and are usually upheld in the trial court.

There are some things that everyone should know about searches and the ability of the police to conduct them. First, and most importantly, you do no need to consent to an officer's request to search you, your automobile, or your home. You are entitled to politely refuse unless and until the officer presents you with a warrant. Of course, you do not want to be seen as resisting, so if an officer tells you they are going to search (leaving little or no room for refusal), there is little you can do but allow the search and challenge it in court. But, in most cases, officers will simply ask, "you don't mind if I take a look inside the car, do you?" If you hesitate, they may follow up with, "what's the matter, you don't have anything to hide, do you?"

These are attempts by officers to bypass the probable cause or reasonable suspicion requirement. Remember, an officer needs one of these to search; unless you give it to them. Don't fall prey to manipulative police tactics, know you can say no.

Another fact about searches is that items in plain view can immediately give rise to either probable cause or reasonable suspicion. For example, if an officer pulls someone over for speeding and, while approaching the window to speak to the driver, notices some drug paraphernalia on the passenger's seat, the officer can arrest the driver and conduct a search of both the driver and the passenger compartment of the car.

Finally, police are allowed to use drug-sniffing dogs in some limited circumstances, but cannot force a driver to wait too long for the dog to show up. If an officer asks if you mind waiting for the arrival of a K-9 unit, you have the right to say "No, I would like to be on my way." The officer then will have to either ensure speedy arrival of the K-9 unit or let you go on your way.

If you have pending criminal charges, you need to find a lawyer who will fight for your rights. If unchecked, police and prosecutors will run right over the unwary criminal defendant. Make sure that you have the best available representation. Click here to contact an experienced criminal defense attorney at the Law Office of Lauren K Johnson.

Is "Stop and Frisk" On The Way Out?

August 30, 2013,

In the wake of a recent decision by a federal district court judge in New York holding that the state's "stop and frisk" policy violates the United States Constitution, the country is abuzz with discussion of the concept of "stop and frisk." This post will briefly discuss the history behind the policy, explain the concept, and analyze what the future may hold for the forty-five-year-old legal doctrine.

The "stop and frisk" policy first came about in a 1968 Supreme Court case, Terry v. Ohio. Up until that point, under the Fourth Amendment, an officer needed probable cause to detain someone to ask them questions or search their belongings. However, the Terry decision created a new rule that only required "reasonable suspicion" of criminal activity before an officer could briefly stop a person and ask him questions. Along with this "stop," the Court held that the officer could also perform a limited pat-down of the person, to ensure that they didn't have any weapons on them. Thus the term "stop and frisk."

Reasonable suspicion is a much easier legal standard to meet than probable cause. So under the "stop and frisk" policy, police are able to stop people for less obvious reasons, allowing for a more subjective determination of wrongdoing.

The New York court held that the "stop and frisk" policy was being enforced in a racially discriminatory manner, disproportionately affecting Black and Hispanic people. Intuitively, this makes sense if you can believe that police suspect Blacks and Hispanics more than other races. This is because police can selectively choose who looks "suspicious" and, given the lower threshold required to stop that person, police can almost always cite some fact or set of facts that give rise to a "reasonable suspicion." The result is that the "stop and frisk" policy ends up being applied against Blacks and Hispanics more than other racial groups.

It seems obvious that the Court, back in 1968, felt that "stop and frisk" was a good balance between individual rights and the need to deter crime. However, the policy has recently come under attack being less of a deterrent than originally thought. Social scientists point to a lack of hard evidence suggesting that less crimes are committed because officers are able to conduct "stop and frisk" stops. Even though crime has decreased over the decades since "stop and frisk" was implemented, there could be numerous causes.

The fact that the science does not support the policy's effectiveness combined with the recent finding that the policy is applied in a racially discriminatory manner, might signal that the tide is turning on the stop and frisk doctrine.

Continue reading "Is "Stop and Frisk" On The Way Out?" »

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

June 10, 2013,

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.

Continue reading "California Attorney Lauren K Johnson Interviewed On HuffPost Live About Medical Marijuana Law And Kids" »

Orange County CWP Program Lets You Perform Work in Lieu Of Jail Time Pursuant To P.C. 4024.2

April 15, 2013,


The Orange County Sheriff's Department in cooperation with the Superior Courts has created a unique work release program for offenders, that are eligible, to work for the Sheriff in lieu of doing jail time. The Community Work Program (CWP) was designed to free up some much needed jail beds, save tax-payer dollars and help maintain county facilities. It is similar to Cal Trans, except the work is performed at county facilities like local beaches, parks and the O.C. jails.

Under Penal Code section 4024.2 Sheriff's departments can release inmates who fit a certain criteria (established by the Sheriff) to perform work for the county in-lieu of their jail sentence.

One ten hour day is equivalent to twenty-four hours in custody


CWP allows an inmate to go home at night and be with their family and loved ones. This is a great benefit to the inmate and the inmate's family. CWP is on a voluntary basis. However, the inmate needs to know that CWP is also a privilege and he or she is still an inmate and is subject to certain rules and regulations while they are participating on CWP.

Eligibility for CWP would depend on, but not be limited to, the following:

• Sentenced to county jail time
• Sentenced to 150 days or less
• Must not have any active warrants or holds
• Be physically fit to perform manual labor
• Permanent Orange County resident
• Viable mode of transportation
• Pay an Administrative Fee
• Cannot be in custody on violent related charges or sex related charges

CWP benefits everyone involved. This program is very important to the Sheriff, the County of Orange, the tax-paying Citizens, and the inmates and their families. If you are facing jail time and would like to see if you are eligible for the Community Work Program, contact The Law Office of Lauren K. Johnson for a free confidential consultation and let us evaluate your situation.

What is California's Deferred Entry of Judgment?

April 10, 2013,


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?

April 1, 2013,


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.

CALIFORNIA MARIJUANA ARREST AND CONVICTION RECORD DESTRUCTION - CHANGES PENDING

March 25, 2013,

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

March 5, 2013,


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.

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

February 7, 2013,

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."

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