Sacramento Criminal Defense Lawyer Blog

Sacramento County's drug court - which gives drug users the opportunity to undergo treatment rather than serve time in jail - has seen its funding shrink in recent years, even as the state shifts responsibility to counties for dealing with people convicted of drug related crimes as part of its effort to comply with a federal directive to ease overcrowding in California prisons.

California counties provide people convicted of drug use and possession the option to seek treatment and avoid jail sentences. These programs (click here for more details) are based on the idea that helping people overcome addiction will result in fewer crimes in the future, since many crimes are committed as the result of impairment by drugs or in the quest for money to buy drugs. Data supports the benefits of drug courts. A 2007 NPC Research study concluded that while 67 percent of those who did not participate in drug court were arrested again within two years, only 17 percent of drug court participants were rearrested.

Because of local government budget cuts, Sacramento County's drug court has seen its funding fall in recent years. The problem is obviously worsened by the movement from state prison to county jail of some non-violent drug offenders, some of whom could be helped by drug court but aren't able to participate because of insufficient funds. County officials hope to boost drug court funding in the future, but at the moment Sacramento drug court is not able to help all those who could benefit.

The United States Justice Department's announcement earlier this month that it will begin going after large scale marijuana growing operations in California is an illustration of how our federal system of government can sometimes have laws that work at cross purposes and cause confusion among citizens.

The background on this is that in 1996 California voters approved an initiative that allowed the use of marijuana for medical purposes. In the fifteen years since then, medical marijuana dispensaries have proliferated throughout the state. Federal prosecutors assert that some of the people growing marijuana have set up substantial operations that generate significant profits. It is these large scale producers that the feds are targeting.

It's important to bear in mind that this enforcement comes from the Department of Justice in Washington, D.C. Under our federal system of government, national laws are created in Congress and signed by the president, while California state laws come from the state Senate and Assembly and are signed by the governor. Thus, with these two systems, there are times when state and national laws come into conflict. Marijuana laws are an example of this. While California has decided that use of marijuana for medical purposes is okay, the national government continues to outlaw possession, use, sale, or cultivation. (Of course, adding further complication to the issue is that California law changed last year making possession of less than an ounce of marijuana an infraction, akin to a parking ticket.)

The Justice Department has said that it will for the most part not prosecute people who use medical marijuana. It has decided, however, to use its authority to bring charges against people it feels are violating the intent of California's medical marijuana laws by growing large quantities of pot and making substantial amounts of money. These charges would be dealt with in federal court, not California superior court.

California law regarding possession of marijuana changed in important ways at the beginning of this year. In general, possession of up to one ounce of marijuana will now be charged as an infraction rather than a misdemeanor. In regards to possession of pot while driving, however, there are some factors that can result in more serious charges.

SB 1449, which took effect January 1, 2011, reclassifies possession of an ounce or less of marijuana from a misdemeanor to an infraction. This is important because a misdemeanor comes with higher fines and the possibility of jail time and becomes part of a person's criminal record, while an infraction comes with a small fine and no jail time and does not become part of a criminal record. (Other sorts of infractions include traffic tickets and littering citations.)

California Health and Safety Code 11357(b) pertains to possession of marijuana in general.

Vehicle Code 23222(b) pertains specifically to possession of pot while driving, stating that possession of an ounce or less is charged as an infraction and results in a fine of up to $100.

It's important to keep in mind, however, that if you are pulled over and found to be high from marijuana, then you can be charged with driving under the influence according to Vehicle Code 23152(a). This is a misdemeanor charge which can result in thousands of dollars in fines, jail time, and a conviction on your criminal record. Moreover, DUI for marijuana could also result in felony charges if you have multiple previous convictions or there is a traffic incident involving injuries.

Proposition 19, which would have legalized recreational use of marijuana in California, was defeated by voters in Tuesday's election 53.8% to 46.2%. This means that marijuana use remains illegal in California, though a recent change to state law does significantly reduce the penalties.

If it had passed, Proposition 19 would have made it legal to: possess up to an ounce of pot; use it in a non-public venue such as one's home or a public venue licensed for marijuana consumption; and grow pot at one's residence in an area up to 25 square feet. It would have also permitted local governments to authorize the retail sale of up to an ounce of marijuana to people 21 years of age or older, as well as impose local taxes on those retail sales.

Because of the defeat of Proposition 19, possession and use of marijuana is still against the law. However, the passage in October of SB 1449 changes possession of less than an ounce of marijuana from a misdemeanor to an infraction as of January 1, 2011. This means that the penalties for less than an ounce will be a fine of up to $100, no jail time or probation, and no conviction on one's criminal record. Essentially, possession of a small amount of pot will be treated like a minor traffic violation or littering. Bear in mind, though, that possession of more than an ounce comes with substantially harsher penalties, especially if the charges include trafficking or sales.

Governor Arnold Schwarzenegger last week signed into law Senate Bill 1449, reclassifying possession of less than an ounce of marijuana from a misdemeanor to an infraction. The new law will take effect January 1, 2011.

Under existing law, someone convicted for possession of less than an ounce of marijuana cannot be sentenced to jail or given probation; fines are already capped at $100. Classification as a misdemeanor allows defendants the option of a jury trial, but is also means that convictions become part of their criminal records.

Schwarzenegger in a written statement said that because of previous changes in the law, marijuana possession of less than an ounce is already treated in most respects as an infraction (the lowest level of offense, like a traffic or littering citation). Under SB 1449, possession of a small amount of marijuana will no longer require appearance in court and will not become part of someone's criminal record.

Schwarzenegger nonetheless stated his opposition to Proposition 19, which goes before voters on November 2, and if passed would legalize and regulate cultivation and personal use of marijuana for people over 21 years of age. He also noted that California's budget problems were a factor in his decision to sign SB 1449, stating that law enforcement personnel should devote their limited time and resources to pursuing more serious violations.

The Sacramento Bee on July 26 published an article that documents the rising abuse of OxyContin by many people in their teens and 20s.

OxyContin is a prescription pain killer that's derived from opium and has been on the market since 1995. Many young people try it because it can be ingested merely by swallowing a pill and lacks the stigma associated with other drugs such as heroine or cocaine. It is highly addictive, however, and can result in a physical dependence within a few weeks.

The Bee's article gives a valuable profile of the dangers of abuse of OxyContin. What we would add is that Diversion (also known as Deferred Entry of Judgment) and Proposition 36 provide alternatives to incarceration for people arrested for illegal use of OxyContin and other prescription medications. These programs - intended for people accused of drug use or possession, not drug manufacture, sale, or trafficking - allow the possibility of avoiding a conviction in exchange for completion of a drug treatment program.

For a complete description of Diversion (Deferred Entry of Judgment), see our July 9 post. For a complete description of Proposition 36, see our July 15 post.

Teens, Young Adults Abuse OxyContin in Northern California, Sacramento Bee, Monday, July 26, 2010

Proposition 36, passed by California voters in 2000, provides some people accused of non-violent possession or use of illegal drugs the opportunity to undergo drug treatment rather than be sentenced to jail or prison. Codified in Penal Code 1210.1, Proposition 36 is similar to Deferred Entry of Judgment - described in the July 9 post - though it differs in several ways. Like Deferred Entry of Judgment, PC 1210.1 is intended only for people accused of drug use or possession. It is not an option for those accused of drug manufacture, sale, or trafficking.

The program works like this. The defendant agrees to plead guilty to the drug possession or use charge, and a conviction is placed on his/her criminal record. Instead of being sentenced to jail or prison, however, the defendant is placed on probation with the stipulation that he/she completes a drug treatment program. Additional requirements - such as counseling or community service - may also be imposed.

If all of the terms of probation are fulfilled, the judge orders the conviction replaced with a dismissal. Significantly, PC 1210.1(e)(1) holds that "both the arrest and the conviction shall be deemed never to have occurred." This means that the defendant does not have to disclose the incident to questions that might arise in the course of an application for employment. (An exception to this is when applying for a position as a peace officer.)

Because the guidelines for PC 1210.1 are complicated, it's important to speak with an experienced criminal defense attorney to see if you qualify. For example, those who do not qualify include people who used a deadly weapon while under the influence of drugs, refused to undergo drug treatment as a requirement of probation, or have undergone treatment twice before under PC 1210.1. Moreover, the program is not an option for many people convicted of serious felonies, though it might be available for them if during the previous five years they have not been imprisoned and have not been convicted of a felony other than a non-violent drug possession.

Deferred Entry of Judgment under PC 1000 - commonly referred to as Diversion - gives people accused of drug possession or use the opportunity to undergo drug treatment rather than be sentenced to jail or prison, as well as the possibility of keeping a conviction off of their records. The program is designed as an option for those arrested for drug use or possession; it is not available for people accused of selling, manufacturing, or trafficking drugs.

To qualify for Deferred Entry of Judgment (DEJ) / Diversion, the defendant must meet several requirements, including:

• No prior convictions for drug possession;
• No element of violence in the current offense;
• No outstanding probation or parole violations;
• No participation in a diversion or deferred entry of judgment program in the previous five years;
• No prior felony convictions in the previous five years.

Under DEJ, the defendant agrees to plead guilty to the drug possession or use charges in exchange for the deferred entry of judgment from the court. What this means is that the judge agrees to wait 18 months to 3 years before entering the final judgment for the case. During that time, the defendant completes a drug treatment program and maintains a clean criminal record. If these conditions are met, the judge "sets aside" the original guilty plea. This means that no conviction is recorded on the defendant's record.

Successfully meeting the terms of the program even means that the arrest for drug possession or use is considered to have never happened. This can obviously be beneficial in instances when a person is questioned about his/her criminal history, such as when applying for employment. (An exception to this is when a person applies for a position as a peace officer.)

Deferred Entry of Judgment / Diversion is a good option for many people arrested for drug use or possession. If you have questions about Deferred Entry of Judgment programs, contact a defense lawyer with extensive experience in this area.

The California Health & Safety Code lays out the penalties for use, possession, and sale of marijuana. Depending on the nature of the violation, charges can be filed as either misdemeanor or felony, and penalties can include fines and time in county jail or state prison.

Having a qualified criminal defense lawyer is crucial when facing drug charges. Simple possession charges can often be increased to possession for sale, and the presence of drug paraphernalia can result in additional charges. On the other hand, people facing simple possession charges for marijuana may have the option of having their cases go through drug court, which can result in a dismissal of charges. (See the explanation below for more details.) Contact an experienced defense lawyer for review of the details of your case.

These Health & Safety Code sections pertain to marijuana.

H&S 11357

Simple possession of marijuana is considered a misdemeanor. Possession of an ounce (28.5 grams) or less comes with a maximum fine of $100 and no jail time. Possession of more than an ounce has a maximum fine of $500 and up to six months in county jail, though a jail sentence is rarely given out.

As mentioned above, people facing charges under H&S 11357 may have the option of drug court, which allows entry of a plea of guilty in exchange for a "deferred entry of judgment" from the court. Once proof is provided of completion of a drug treatment program, the charges are dismissed by the court. To qualify for drug court, defendants must have a clean criminal record for the preceding five years, and the current charges must not involve any sort of violence.

H&S 11358

Cultivating and processing marijuana is considered a felony punishable by time in state prison.

H&S 11359

Possession of marijuana with the intent to sell is a felony punishable by time in state prison.

H&S 11360

Transportation and importation of marijuana is a felony punishable by state prison terms of two, three, or four years.

H&S 11364

Possession of drug related paraphernalia - such as bongs and roach clips for pot - is illegal.

The United States Department of Justice on October 19 issued new guidelines related to medical marijuana. The federal government will no longer prosecute distributors of medical marijuana in the 14 states, including California, that allow marijuana to be sold for medicinal purposes, as long as those operations are in compliance with relevant state laws. This represents a substantive change from the policies of the Bush administration, which initiated a vigorous federal effort to prosecute medical marijuana distributors

The memorandum detailing the new policy makes it clear that this change does not mean that the federal government gives up its authority to regulate medical marijuana distribution. However, the Justice Department has decided to focus its resources on going after illegal drug traffickers and manufacturers. Moreover, the memorandum states that federal authorities will continue to prosecute medical marijuana facilities that unlawfully possess firearms, sell to minors, engage in violence, sell amounts of marijuana inconsistent with medical use, sell other illegal drugs, engage in money laundering, or have ties to organized crime.

This new policy also does nothing to change California's laws regarding possession and use of marijuana for non-medicinal uses. Possession for personal use is a misdemeanor, with a fine of $100 for less than an ounce. Possession of more than an ounce can bring fines of $500, up to 6 months in county jail, and probation. Possession for sale carries severe penalties, including the possibility of state prison.

The danger for marijuana users, of course, is that they are arrested with marijuana that they claim is strictly for personal use but that the police claim is for sale. In all instances involving arrest for marijuana, legal representation is essential. Even the relatively mild penalties for possession for personal use result in a criminal record, which can have serious consequences when applying for a job.

In an upcoming post, we'll go into more detail on California's marijuana laws. In the meantime, see our September 3 post on California's drug court system.

Memorandum for Selected United State Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

California Health and Safety Code Section 11357

Drug courts developed nationwide in the 1990s in response to that decade's dramatic rise in the number of arrests for possession of methamphetamine, cocaine, ecstacy (or extacy), marijuana, or other illegal substances. Drug courts - used throughout California, including locally in Sacramento, Yolo, Placer, and El Dorado Counties - bring together judges, prosecuting attorneys, defense lawyers, treatment professionals, and probation officers to create a comprehensive program that provides the support and incentives needed to help drug users get clean and lead productive, fulfilling lives.

Drug courts work this way: If you're arrested for straight possession of drugs for personal use (nothing involving sale of drugs or violence) and have no felony convictions of any kind for the previous five years, you qualify for participation in drug court. According to California Penal Code 1000, you would enter a plea of guilty to the charges against you, and the court would issue a "deferred entry of judgment." You would then agree to participate in a comprehensive program that could include individual counseling, group sessions, drug testing, and other treatments. Upon completion of the program, the drug possession charges would be dismissed.

A study by the State of California's Administrative Office of the Courts showed that drug courts are good for defendants and society as a whole. During the period studied (1998 and 1999), drug court graduates had a recidivism rate of 17%, compared to 29% for defendants who participated in drug court but didn't complete the program, and 41% for defendants who did not participate at all. This obviously means more lives back on track, free from the negative consequences of drug use.

Moreover, though drug court requires increased expenditures for probation and treatment, counties with drug courts end up with significantly lower overall costs because of lower recidivism (fewer arrests, court dates, jail/prison/probation time) and lower costs for crime related to drug use. In fact, the study claimed that each successful graduate of drug court in 1998 and 1999 resulted in $11,000 of net savings to the court system and society. The overall savings for California's law enforcement, probation departments, social service agencies, and judicial system were estimated in 2000 to be $90 million.

Continue reading "Drug Courts Prove Beneficial for Defendants, Society, and Budgets" »