Sacramento Criminal Defense Lawyer Blog

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.

If you have questions about alternative sentencing programs, call the Law Office of Nancy King at (916) 442-1200.

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 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.

If you have questions about drug treatment under PC 1210.1 - Proposition 36 - contact the Law Office of Nancy King at (916) 442-1200.

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 the Law Office of Nancy King at (916) 442-1200.

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.

If you have questions about laws related to marijuana, call the Law Office of Nancy King at (916) 442-1200.

The section of the California Vehicle Code that governs driving under the influence of alcohol also sets the rules for driving under the influence of drugs, or DUID. But DUID cases differ from alcohol related cases in several important respects, each of which influences the defense that can be mounted against the charges.

When someone is cited for driving under the influence of alcohol, two criminal charges are filed: 23152 (a) and 23152 (b). Section (a) declares that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle." Section (b) makes it illegal to drive with a blood alcohol level of 0.08 or greater.

Driving under the influence of drugs lacks the specific measure of intoxication laid out in section (b). Therefore, conviction of DUID rests solely on law enforcement's ability to demonstrate that a person's capacity to operate a vehicle safely was impaired by the presence of drugs in his or her system. In other words, all DUID cases rely solely on section (a) and its prohibition of driving under the influence of a drug.

It is important to note that DUID can arise from impairment by both legal and illegal drugs. Use of marijuana or methamphetamines can lead to arrest for DUID, but so can use of prescription and non-prescription painkillers, anti-depressants, allergy medications, antibiotics, or any other drug. Any chemical that diminishes a person's ability to safely operate a vehicle can be used as the basis for arrest and conviction for DUID.

Continue reading "Driving Under the Influence of Drugs (DUID)" »

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.

Call the Law Office of Nancy King if you have questions about these topics.

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

As part of our ongoing effort to provide Sacramento Valley residents with a working understanding of our criminal justice system, today's post outlines the differences among felonies, misdemeanors, and infractions.

California defines criminal behavior primarily through its Penal Code, Vehicle Code, and Health and Safety Code. Crimes in each of these areas are divided into felonies, misdemeanors, and infractions. The category a crime falls into depends on the severity of the offense and the existence of any prior convictions on a defendant's record.

Infractions are the least severe and come with fines of up to $250 and no possibility of jail time. Examples are traffic tickets and some city ordinances.

Misdemeanors carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project. Examples include petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking. Defendants in misdemeanor cases have the option to waive their right to appear in court and allow their attorney to appear for them.

Felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

Some crimes - assault, DUI with injuries, drug possession, theft, vandalism, for example - are "wobblers," meaning they can be charged as misdemeanors or felonies depending on the circumstances.

Continue reading "California Felonies v. Misdemeanors v. Infractions" »

As the calendar turns toward fall, colleges throughout the nation, including UC Davis and Sac State (CSUS) locally, are welcoming new and returning students as another academic year begins. For most students, college is a time of expanding one's worldview, improving critical thinking skills, and developing a vision of a career path. It's also a time to meet new people and learn to live independently, away from the structure, boundaries, and comfort of home life.

The college environment can seem like a cocoon, insulated from the consequences of the real world, leading some students to think that they can do things that would not be acceptable, or even legal, in the outside world, and not be held accountable. But often there are consequences. Some offenses might come under the purview solely of the campus disciplinary system, but some become the interest of law enforcement. And since the vast majority of college students are 18 years of age or older, they are treated as adults, not juveniles, by the judicial system, which means less tolerance and harsher penalties.

Most of the cases we see involving college students concern DUI, drug possession and sale, assault, vandalism, and theft. More often than not, they involve students who've never been arrested but have now done something unwise and out of character. They drive to a party off campus, drink three or four beers, and then get pulled over by local police as they drive home. They fall in with a crowd that likes to smoke marijuana, and then get arrested for drug possession, or even possession for sale, when police come to their off-campus house to break up a late night party. They get in a fight with a member of the local community who decides he just doesn't like college students. They pull a prank on a rival fraternity and get arrested for damaging property. Or they get arrested for sexual assault against someone they meet at a party or who lives in the same dorm.

The key thing to keep in mind is that once local law enforcement is involved, saying "But I'm just a college student" isn't a defense. Because of problems students have caused over the years, many communities are less likely than before to say, "That's okay. They're just kids." Police officers and prosecutors merely see college students as "the accused." In other words, don't expect any special treatment. Contact a criminal defense attorney and figure out your options.

Continue reading "College Students and the Criminal Justice System" »

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" »