The Criminal Court Process

Marijuana-related offenses in California vary, ranging from minor misdemeanor offenses, such as possession of less than one ounce of marijuana, to serious felony offenses that carry severe penalties, including charges that deal with selling, transporting and manufacturing marijuana. If arrested on any marijuana-related charge, it is vital that the accused hires a skilled California criminal defense lawyer who knows the local customs and practices that relate to marijuana charges so that he or she can effortlessly guide his or her client through the criminal court process with ease, understanding and complete competence.

The arrest, booking and bail proceedings are the first part of the process. Once an officer has arrested the accused (taken him or her into police custody so that he or she is no longer free to leave), the accused is typically taken to a police station where he or she is booked (fingerprinted, photographed and entered into a criminal database) and, depending on the severity of the offense, will either be released or held in custody until his or her bail hearing or arraignment.

The arraignment is typically the next stage. At the arraignment, the accused will hear the exact charges that have been filed, will be advised that he or she should have an attorney, may have his or her bail altered and will enter a plea of guilty, no contest or not guilty.

Plea negotiations follow. This is where the criminal attorney tries to have his or her client’s case either dismissed entirely (based on holes in the prosecution’s case) or reduced so that his or her client can receive a more lenient sentence than he or she would if found guilty during the trial.

Preliminary hearings are held in felony cases. Considered a “mini trial” it is the phase where the judge decides whether the prosecution has enough evidence to force the defendant to answer to the charges.

Motions to suppress evidence are pre-trial motions that are typically filed by the defense in a California case involving marijuana and are argued in an effort to keep certain evidence or witnesses out of the trial, which could ultimately lead to a dismissal of the charges if successful.

Motions for discovery are designed to ensure that the defense has all of the prosecution’s evidence to ensure a fair trial. This typically includes the names of any prosecution witnesses, statements made by the defendant, all written or recorded witness statements, information about any seized evidence and any evidence that points to the defendant’s innocence. Discovery motions may also be filed against the defense.

A Pitchess motion may be raised by a defendant who suspects that the arresting officer has engaged in previous misconduct which may be relevant to his or her defense. This motion seeks personal information contained in the officer’s personnel file, including any complaints about racial bias, false arrest, the planting of evidence or any other criminal conduct.

The jury trial comprises the bulk of the case. This is where the attorneys for both sides have the chance to present all of their evidence to the judge and jury in the attempt to either have the accused declared guilty or not guilty. The “burden of proof” lies with the prosecutor, which means that the state must prove the defendant’s guilt “beyond a reasonable doubt” in order to prevail. If the defendant is acquitted or the case is dismissed, the individual may go through a process to have his or her property returned, which may require the help of an experienced attorney.

Sentencing takes place if the defendant either accepts a plea or is found guilty during trial. In a marijuana-related case, one’s sentence could include probation, fines, jail or prison time, diversion, drug rehabilitation or electronic monitoring.

To learn more from a firm who excels in successfully navigating their clients through this process, contact the outstanding attorneys at The Kavinoky Law Firm today for a free consultation.

Appellate review of forfeiture

Asset forfeiture refers to the process by which the government seizes an individual’s property that it believes was involved in illegal activity. With respect to marijuana, this involvement can be in the form of property that helps to further a crime (such as a vehicle that was used to transport or store marijuana, in the form of money that was used to purchase the drugs or that was received from the sale of the marijuana or in the form of resource materials that were used to help the accused gain enough knowledge to ultimately commit the offense. Once the government has seized the individual’s property, it can be quite a challenge to get it back, which is why an individual who has been accused of illegal marijuana-related activities must immediately contact an experienced attorney who understands the process and requirements involved in pursuing an appellate review of a forfeiture proceeding.

An appellate review of asset forfeiture proceedings may be sought by either the government or by a property owner who received an adverse judgment during a civil forfeiture proceeding. Either party may appeal from an adverse criminal forfeiture if the defendant’s final sentence (which included a forfeiture clause) was illegal. Civil or criminal forfeiture proceedings that involved federal criminal statutes should be appealed to the appellate section of the criminal division of the U.S. Attorney’s Office. It is because of these types of rigid rules that only a skilled attorney who has an in-depth knowledge about forfeiture proceedings and the appeal process should represent an individual seeking appellate review.

Appellate review of a civil forfeiture must be initiated within 60 days after entry of the original judgment or within 30 days for a typical criminal case (60 under certain circumstances). Review by the criminal division also entails review by the asset forfeiture and money laundering section of the criminal division. Once the asset forfeiture and money laundering section receives the appeal, it prepares a recommendation concerning the review and submits its report directly to the appellate section. The appellate section then reviews the recommendation (as well as the one from the U.S. Attorney’s Office) and then prepares its own report for the Solicitor General’s Office. Based on all of the information it receives, the Solicitor General’s Office then makes a decision concerning the appeal.

Depending on the circumstances of the case and on whether the court’s authority was over the defendant or his or her property, either the government or the individual may dispose of the property if either party fails to obtain a “stay pending appeal” which is a legal tool that basically pauses the case until the appeal is final. However, doing so may have its own legal ramifications, which is another reason why it is so important to retain an attorney who knows how to best protect his or her client’s rights.

Constitutional challenges may be appealed by one having an interest in the forfeited property. Under this type of scenario, the requested relief will either be in the form of monetary damages or equitable relief. “Equitable relief” means providing the owner with his or her original property and is therefore only possible in situations where the illegally seized or wrongfully detained property hasn’t been destroyed.

The outstanding attorneys at The Kavinoky Law Firm understand asset forfeiture and all that it entails with respect to their client’s marijuana-related activities. They are dedicated to protecting their client’s rights and assets and will effectively challenge the government’s authority whenever possible. With law offices throughout this state, including several in and around the Los Angeles area, they are conveniently located for anyone in need of excellent representation. For more information on asset forfeiture and on the appellate review of these types of proceedings, contact the firm today for a free consultation.

Arraignment is typically the first court appearance that an individual accused of a California marijuana-related offense attends. It is a crucial part of the criminal court process and is the defendant’s first opportunity to enter into plea negotiations with the prosecution. In order to receive the most favorable outcome at this stage in the proceedings, it is imperative that the accused appears with a California criminal defense lawyer who specializes in defending marijuana offenses.

Arraignment follows the arrest, booking and initial bail phases of one’s criminal case and is typically held within two business days of the arrest. During the arraignment, a judge tells the accused (now called the “defendant”) exactly what criminal charges have been filed against him or her and what the penalties are that are associated with those crimes. A list of constitutional rights will also be read to the accused. The judge inquires as to whether the defendant has hired a private lawyer or wishes to use the services of a court-appointed attorney (also known as a public defender) and asks the defendant if he or she is prepared to enter a plea of guilty, no contest or not guilty. It should be noted that a “no contest” or “nolo contendere” plea means that the charges will not be contested (like a guilty plea) but makes it so that the plea cannot be used against the accused in the event that a civil case ensures. If the defendant has not yet obtained counsel, the judge may grant him or her a continuance to do so. If the defendant’s bail was not decided in a previous proceeding (which would likely be the case with a marijuana-related charge), the judge will decide whether or not to modify the bail amount or whether or not to release the accused on his or her own recognizance (otherwise known as an OR release).

Before the arraignment concludes, the judge will instruct the defendant to appear at all remaining court dates (which may include a preliminary hearing, a date for any pre-trial motions and the trial date) and will give the defendant the dates for those proceedings. Misdemeanor charges that aren’t resolved at the arraignment will typically proceed to a date where the pre-trial motions will be held and felony charges that are unresolved will proceed directly to a preliminary hearing.

Discovery may be provided to the defense at the arraignment. This typically includes copies of any police reports or other documents that are relevant to the defendant’s case, a list of witness names, any statements made by the defendant or any written or recorded statements that were made by other witnesses, descriptions of any seized evidence and any evidence that points to the defendant’s innocence.

Arraignments can be overwhelming and quite stressful for anyone accused of a criminal charge, especially if the charge is a felony or an individual’s first offense. The compassionate and trusted criminal attorneys at The Kavinoky Law Firm are dedicated to making this difficult time easier for their clients. They have the skill, experience and integrity necessary to competently and successfully guide their clients through the arraignment and all other phases of the criminal court process. Because they have law offices located throughout California, including several in and around the Los Angeles area, they have established relationships with local judges and prosecutors, giving their clients a tremendous advantage when it comes time to negotiate a plea bargain or ask for special consideration on a particular case. For unsurpassed legal advice and representation from a firm who has mastered the defenses that are applicable to California marijuana-related offenses, contact The Kavinoky Law Firm today for a free consultation.

Marijuana-related offenses, in California, all subject the accused to the criminal court process. The first stages in this process include arrest, booking and bail. In order to ensure that one’s case isn’t blindly processed through the system, it is vital for the accused to hire a California criminal attorney who specializes in marijuana cases and who knows exactly how to successfully navigate his or her client through these stages.

The arrest officially takes place when the suspect is taken into police custody and no longer has the option to leave or freely move about. An officer is legally entitled to make an arrest if he or she personally observes the suspect commit a crime (for example, he or she sees marijuana plants growing on a property or sees an individual smoking marijuana), if he or she has “probable cause” to arrest the suspect (that is, a reasonable belief that the person either committed or is about to commit a crime, based on a tip which is then corroborated by the officer’s observations, such as a pending sale or information that manufacturing is taking place in a certain location) or if he or she has a warrant, issued by the court.

Booking follows the arrest. Booking is the process by which an individual is formally entered into the criminal court system. During this process, the suspect’s personal information is collected, any personal property is confiscated (which will be returned upon the individual’s release, assuming it isn’t illegally possessed), the officer records information about the alleged offense, performs a search for prior offenses and then fingerprints and photographs the accused. Depending on the particular offense committed, the accused may be given a written citation, so long as he or she promises to appear in court (for minor offenses, such as possession of less than one ounce of marijuana) or will be placed in a “holding cell” or a local jail for more serious offenses.

Bail is the money that one “posts” in order to be released from police custody following the booking process. Those accused of drug charges are typically permitted to either “bail out” or obtain a free release on their own recognizance (also known as an O.R. release). When determining whether one’s bail should be raised or lowered from that listed in the bail schedule or whether one should be released OR, the judge considers the severity of the offense (whether any aggravating factors were present), the accused individual’s criminal history, his or her ties to the community and public safety. When reviewing these issues, the judge assumes that the accused is guilty of the offense, which is another reason why it is so important to be represented by qualified counsel during every stage involved in criminal proceedings who knows how to make sure that his or her clients receive the most favorable results at all times.

If one must post bail, he or she has the option of posting cash bail, which means that he or she must pay the full amount that the court has ordered (which will be refunded once the case is over if the accused attended all of his or her court appearances), or has the option of posting a bail bond. Bail bonds are contracts with bail agents or “bondsmen” whereby they agree to pay the full bail in exchange for ten-percent of the total amount (which is non-refundable). Bail agents also typically require collateral as further security that the individual will make all of his or her court appearances so that the bond will be returned at the end of the case. Under either scenario, if the accused fails to appear, the bail is forfeited to the court.

The outstanding California criminal defense lawyers at The Kavinoky Law Firm excel in successfully representing their clients who were accused of marijuana-related charges during these and all phases of the court process. To learn more about how these exceptional attorneys can help, contact them today for a free consultation.

In California, anyone charged with marijuana related offense may face forfeiture proceedings. Asset forfeiture involves the government taking property – almost any kind of property – that was illegally used or obtained without compensating the owner for its value. An individual need not be convicted for or even charged with a crime before his or her property may be seized and forfeited, so long as the government provides a reasonable connection between the property and the marijuana. Because the laws that regulate asset forfeiture are numerous, technical and complex, it is vital that anyone who has been accused of a marijuana related offense immediately contacts a skilled California criminal defense lawyer who specializes in defending marijuana cases and, as a result, knows how to successfully protect his or her client’s property.

Asset forfeiture proceedings may be non-judicial in nature. These types of proceedings are also known as “summary forfeitures” or “administrative forfeitures”. Non-judicial “summary forfeitures” take place when the property is “per se” illegal – that is, that the property is, on its face, illegal – and includes dangerous, toxic or hazardous raw materials or products and their containers. “Administrative forfeitures” (governed by federal law) typically take place when the property is forfeited to the government by the investigative agency that seized it. This type of procedure applies to property that is worth $500,000 or less, to property that is illegally imported, to vehicles that are used to import, export, transport or store marijuana or to any “monetary instrument” (that is, domestic or foreign money, traveler’s checks, stocks, checks, bank notes and money orders). When such is the case, the government is only required to give the owner notice that the property may be forfeited and judicial proceedings are not required.

Civil judicial forfeiture proceedings take place when the property exceeds $500,000, is forfeitable pursuant to federal law, is not a transporting vehicle or an item that has been illegally imported and is not a monetary instrument. These proceedings also apply when the property is forfeitable pursuant to IRS procedures that exceed $100,000 in value, to all real property (that is, homes, buildings, etc.) regardless of its value and to all property that is forfeitable according to California law.

Criminal forfeiture proceedings may target property that is located outside the United States and includes property that has been involved in a federal criminal offense of which the accused was convicted and only to property in which the accused has a personal interest.

RICO (Racketeer Influenced and Corrupt Organizations) laws fall under criminal forfeiture proceedings and apply when the accused has violated or conspired to violate a RICO statute. The violations include using funds derived from a pattern of racketeering activity to acquire or maintain an interest in an enterprise that deals in interstate commerce, acquiring or maintaining interest in an enterprise through a pattern of racketeering activity and/or using an enterprise to purse a pattern of racketeering activity.

Either an affected individual or the government may file for an appellate review of forfeiture proceedings if he, she or it was the losing party. The laws that typically govern these types of proceedings are those that govern civil appeals. A civil forfeiture case must be appealed within 60 days of the judgment and a criminal forfeiture case must be appealed within 30 days of that same date.

Asset forfeiture is clearly an area of the law where special knowledge is required. When accused of a marijuana related offense, it is imperative for that individual to immediately contact the exceptional criminal attorneys at The Kavinoky Law Firm who have mastered this field of law as it relates to marijuana and other drug offenses. Their experience and in-depth knowledge with respect to forfeiture proceedings gives their clients a tremendous advantage when it comes to defeating the government’s attempts at seizing one’s property. To learn more about how these outstanding attorneys can help, contact The Kavinoky Law Firm today for a free consultation.

Marijuana-related cases, in California, involve a number of different charges, ranging from some relatively minor infractions (such as possession of less than one ounce of marijuana) to serious felonies (such as manufacturing the drug). Regardless of the charge, an experienced California criminal defense lawyer will want to ensure that he or she has any and all evidence that is relevant to the defense case and, as a result, will typically file a motion for discovery during the pre-trial stages of his or her client’s case.

“Discovery” refers to all of the evidence that will be used to prosecute or defend a case. It typically includes, but is not limited to, a witness’s personal information (including his or her name, address and any relevant criminal history), any statements that were made by the accused, written or recorded statements that were made by witnesses, any evidence that was seized or otherwise obtained during the arrest or subsequent criminal investigation, the results of any chemical tests that were performed and any exculpatory evidence – that is, evidence that points to the defendant’s innocence. This evidence is usually provided by the prosecution to the defense without the defense having to file a motion, as the law regulates discovery in the interest of fairness. This type of discovery is generally provided to the defense at the defendant’s arraignment, unless it isn’t available at that time. It must be noted that discovery is an ongoing process, as new information and evidence is often uncovered or revealed even up through one’s trial. When new discovery is uncovered, it is up to the discovering party to promptly disclose it to the other side in order to avoid sanctions.

Discovery, as stated above, it an ongoing process and is generally informal as well. Both sides are expected to “turn over” their relevant evidence to the other, either automatically (under certain circumstances) or upon request by the adverse party. If those requests are denied or ignored, a formal motion will likely be filed. Formal discovery takes place when one side files a motion for discovery, which is then heard and ruled on by the judge. If the judge orders one of the parties to disclose information to the other and his or her order is subsequently ignored, the judge may issue sanctions and/or additional penalties, as he or she deems appropriate.

The defense attorney will typically file a motion for discovery when it believes that some or all of the prosecution’s evidence hasn’t been “turned over” after informally requesting it or when he or she has a “hunch” that otherwise protected evidence may be relevant to his or her client’s case. An example includes a Pitchess motion, where the defense seeks private information contained in an officer’s personnel file that they believe will be relevant to their case.

Motions for discovery are extremely important to the defendant’s case. It is crucial that the criminal attorney for the accused has mastered the technical laws that regulate discovery so that he or she knows exactly what information he or she is entitled to, what information he or she has a right not to disclose and how to convince a judge to rule in his or her favor when it comes time to determine whether evidence should be “turned over” to either side. The outstanding attorneys at The Kavinoky Law Firm specialize in California marijuana defense and know the types of evidence that they need in order to successfully defend their client’s cases. They will ensure that their client’s case isn’t blindly processed through the criminal court system without the best defense. These exceptional attorneys are in it to win! For more information about how they are determined to provide unsurpassed representation, contact them today for a free consultation.

Motions to suppress evidence are pre-trial motions that are typically filed by the defense in a California case involving marijuana and are argued in an effort to keep certain evidence or witness testimony out of the trial. If the defense successfully argues this motion, the prosecution may be forced to drop the charges and dismiss the case altogether. Because of the importance of this type of motion, it is critical that the accused hires a skilled criminal attorney who knows what types of issues a judge would be likely to seriously consider when hearing this kind of motion and what arguments are most likely to convince the judge to rule in the defense’s favor.

Motions to suppress evidence are usually filed when the defense believes that certain evidence (whether it is the marijuana, statements or other evidence) in a drug case was obtained during an illegal search and/or seizure in violation of the Fourth Amendment to the United States Constitution. Because prevailing at this type of hearing depends on not only knowing the state laws that are relevant to the procedures involved in filing this type of motion but on also having an in-depth knowledge about federal law and what constitutes an illegal search and seizure, only an experienced criminal defense lawyer should attempt to file and argue a motion to suppress evidence.

The Constitution protects U.S. residents from “unreasonable searches and seizures” of their property, as well as of their person. In order to be reasonable, an officer must have a court-issued warrant before conducting a search or probable cause to believe that an individual is involved in illegal activity. It must be noted that a “search” necessarily involves an invasion of privacy, because, for example, an officer who observes an individual openly smoking a marijuana cigarette on the street has not had to search him or her to witness the illegal activity. However, if the officer simply decided to stop an otherwise unassuming individual to check his or her pocket for the drug, a search would have ensured. A “seizure” (using the same scenario) would then refer to the officer taking the marijuana and the individual into police custody. Searches and seizures are premised on one’s “reasonable expectation of privacy” – if there is no reasonable expectation of privacy, an illegal search will not be declared – if there was such an expectation, it becomes a judicial issue. It generally follows that if the search was illegal, the seizure was, too.

Motions to suppress evidence may also be premised on the fact that the officer illegally obtained statements in violation of one’s constitutionally protected right against self-incrimination. If the accused was taken into custody and questioned about the alleged incident, he or she would first be legally entitled to receive his or her Miranda warnings. These are commonly read in movies and on television and advise a suspect of his or her “right to remain silent…” Incriminating statements elicited without those warnings may very well be illegal and the defense will move to suppress those statements during this hearing. Any evidence that was seized as a result of an illegal confession will also be declared illegal and should be additionally suppressed.

When reviewing a client’s case, an experienced California drug defense attorney will look for the types of issues that will trigger a motion to suppress evidence. The outstanding lawyers at The Kavinoky Law Firm pride themselves on their ability to spot these issues, critically analyze them and deliver the most compelling legal arguments in their support that are sure to convince a judge that evidence and/or statements were illegally obtained and should therefore be suppressed. These exceptional attorneys have mastered everything related to California marijuana cases and are well qualified to successfully represent anyone charged with a marijuana-related offense in this state. To learn more about a suppression motion or about their unsurpassed defense strategies, contact The Kavinoky Law Firm today for a free consultation.

Plea negotiations or plea bargains describe the phase where most California cases involving marijuana are resolved. Plea negotiations typically begin as early as the arraignment phase of the criminal court process and can last up until (and, in some cases, even during) one’s trial. In order to obtain the most favorable plea bargain possible, it is vital that the accused hires a California criminal defense lawyer who specializes in marijuana cases and who knows how to critically analyze the flaws in the prosecution’s case.

Plea negotiations help create a path by which both parties can reach a compromise with respect to the charges. While engaging in plea negotiations, both sides generally consider the seriousness of the charged offense, the strengths and weaknesses in the case and the most likely verdict in the event that the case goes to trial. In a typical plea bargain, the accused agrees to plead guilty or “no contest” to at least one charge (usually a lesser or reduced charge than the one he or she was originally charged with) in exchange for a lighter sentence than he or she would receive if convicted by a judge or jury following a trial. For example, a possession for sale charge may be plea bargained down to a simple possession charge, enabling the accused to participate in a drug treatment program instead of being sentenced to jail or prison. Although this is the most common scenario, there are a wide variety of others that parties agree to when participating in plea negotiations, including, but not limited to, a dismissal of some or all of the remaining charges, having a felony reduced to a misdemeanor and providing information about another crime, such as the name of one who manufactures marijuana or the location where another is cultivating marijuana. Because of the overwhelming number of cases that pass through the criminal court system and due to the overcrowding that takes place in jails, the courts generally encourage these types of deals.

Prosecutors don’t have the authority to “force” a judge to accept a plea bargain, although judges typically don’t interfere with deals to which both parties have agreed. Once the prosecutor has recommended the bargain to the judge, the judge’s primary concern will be making sure that the bargain was legally entered into. In order for a plea negotiation to be legally binding, three elements must be satisfied: that the defendant knowingly waived his or her right to a trial, that he or she did so voluntarily and that there is a factual basis to support the charges to which the accused will be pleading guilty or no contest. Assuming that these components have been met, the judge will likely “accept” the plea bargain and take the defendant’s plea “on the record” and in open court.

Plea negotiations are truly an art, where only the savvy will prevail. In order to successfully negotiate a California marijuana-related offense, the defense attorney must be familiar with every element of the charged offense, have a thorough understanding of the actual and potential evidence that may come into play, knowledge of all “lesser included” and related offenses and know how sentencing guidelines regulate those offenses. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered these areas and, as a result, have an excellent success record when it comes to negotiating their clients’ cases. They keep current with all of the issues that are relevant to California laws regarding marijuana so that they are always able to recognize the weaknesses in the government’s case. For the most trusted legal advice and to be represented by an unsurpassed advocate, contact The Kavinoky Law Firm today for a free consultation.

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In the American judicial system, evidence is the essence of how the defense and prosecution attempt to argue their case in criminal court. Both sides also seek to discredit and suppress the evidence submitted by the other, giving rise to several potential evidentiary issues that form an entire field of criminal law. A Los Angeles criminal defense attorney that is an expert in evidence law at the federal, state, and local level will be significantly better at building the strongest case for the client and weakening the opposing counsel’s case at the same time.

Because evidence is such a central issue to criminal law, the field of issues that can be discussed is nearly insurmountable. It takes law students multiple semesters to learn the basics of evidence law. However, there are a few key issues that people concerned for their own criminal defense should understand. The first is that one of the best ways for a criminal defense attorney in Los Angeles to help the client’s case is by filing a successful motion to suppress evidence. If evidence is collected incorrectly or its collection was made possible by an illegal or unconstitutional act, and this can be proven, the judge can be convinced to suppress the evidence. That means it won’t enter into the case and the criminal jury will never see or hear it. Of course, many lawyers will try to get evidence suppressed even when the arguments for doing so are weak, and this is a viable strategy for the defense and sometimes for the prosecution. But as far as understanding what is important to remember and explain to your lawyer, the reasons why evidence should be inadmissible are more relevant.

Any police action that wasn’t based on due process or probable cause and any evidence collected during that action or any action that follows should be inadmissible. This relates to any number of things. For example, if a police officer pulls a person over and that driver can prove, such as with a police car’s onboard video camera, that there was absolutely no good reason why the officer should have been suspicious, that demonstrates the absence of probably cause. If the officer then sees drugs on the back seat of the car, searches the car based on that fact and discovers any other punishable crimes, all of that evidence should be inadmissible. This is an example of a lack of probable cause, as well as of the police officer failing to satisfy due process and unknowingly committing an illegal search and seizure.

There are a number of ways that due process, probable cause, and search and seizure laws can be violated. This is why, for the sake of taking advantage of common evidentiary issues in criminal trials, it is so important for the client to go over absolutely every detail of the events leading up to the arrest with counsel. Likewise, it is important to be sure that the Los Angeles criminal defense attorney goes to every length to investigate all the details from the police officers’ end to check for mistakes that could result in evidence being inadmissible.