Field sobriety tests in a DUID case

Field sobriety tests (commonly referred to as FSTs) are routinely conducted in California driving under the influence investigations, whether the driver is suspected of driving under the influence of alcohol or drugs. When testifying about the driver’s performance on these tests, the arresting officer will do his or her best to convince the judge and jury that the accused performed them improperly and displayed obvious signs of impairment. Because this type of testimony is typical in a driving under the influence of marijuana case, it is critical that the accused hires a skilled criminal defense lawyer who knows how to successfully challenge this type of evidence to help his or her client avoid the harsh penalties that are frequently imposed with this offense.

Field sobriety tests vary from state to state, from county to county and from officer to officer. Although many officers won’t tell the driver that these tests are voluntary, they are. FSTs are designed to test balance, coordination and divided attention – the skills that are deemed necessary to safely drive a car. There are a wide variety of tests that are used, but there are three that the National Highway and Traffic Safety Administration have classified as “standard,” which means that there are standard approaches for their administration and evaluation. These three FSTs include the Horizontal Gaze Nystagmus (HGN) test, which is an eye test, the one-leg stand and the walk and turn test. The main problem with these (as well as the non-standardized tests that are frequently used, such as the finger-to-nose, finger count and the hand-pat tests) as they relate to a driving under the influence of drugs (DUID) investigation is that they were designed to test a driver impaired by alcohol, not drugs. Studies have been conducted that reveal that individuals who have used marijuana have shown impaired abilities when it comes to maintaining balance, however, illness, fatigue and nerves can also contribute to this phenomenon.

In a vigorous effort to convict the accused, the prosecutor will have the arresting officer testify about and demonstrate all of the ways that the accused didn’t perform the tests as he or she was instructed. The prosecutor will then argue that the accused displayed mental and/or physical impairment when he or she could not mentally or physically follow the simple instructions that were provided at the beginning of the FSTs. However, a savvy criminal attorney will use those exact same tests to show a lack of physical and mental impairment and will simultaneously reveal the officer’s true bias towards making an arrest. The lawyer will ask the officer to testify about the overwhelming number of things that the accused did correctly when performing these tests, pointing out for the judge and jury that the discrepancy clearly indicates mental and physical competence and that the officer was only concerned with those issues that pointed to the driver’s guilt.

Clearly, the accused faces a tough situation when all the evidence seems to be pointing to his or her guilt. Seasoned officers and prosecutors know exactly what type of evidence to present to the judge and jury to make it seem like a suspected drugged driver is overwhelmingly guilty of driving under the influence of marijuana. The good news, however, is that a seasoned DUI defense attorney is just as capable as challenging this evidence to show that not only did the driver display signs that showed that he or she was perfectly capable of driving safely but that the officer conducted a biased investigation, only collecting evidence that pointed to guilt, dismissing evidence that pointed to innocence. The outstanding California DUID attorneys at The Kavinoky Law Firm have mastered the defenses that are available to an individual facing this charge. With law offices located throughout California, including several in Los Angeles, they are easily accessible for anyone in need of unsurpassed representation. For the most trusted legal advice, contact them today for a free consultation.

California Marijuana Laws – Possession of marijuana for sale – medical marijuana

Possession of marijuana for sale is a felony in California, punishable by sixteen months, two or three years in state prison. The charge, in essence, consists of possessing marijuana with the intent to sell it. If charged with this offense, it is critical for the accused to contact an experienced California drug defense attorney who not only knows all of the defenses that are applicable to this charge but who also knows how to effectively convey them to a judge and jury.

Possession of marijuana for sale has three basic “elements” or facts that require proof before an individual can be convicted of the crime, which include an “intent to sell” the drug, knowledge of the presence of the drug and knowledge of its illegal character. Possessing marijuana for medical purposes provides a defense to this charge.

Medical marijuana laws apply to qualified patients and their caregivers and to patients and caregivers who hold valid state-issued identification cards. “Patients” are those who have received a doctor’s recommendation to use marijuana for its noteworthy health benefits and their caregivers are those who provide their care on a regular basis. Those known as “qualified patients” are those who do not hold I.D. cards – they and their caregivers are supposed to be exempt from California’s personal possession and cultivation laws. Under a separate law, patients and caregivers (those who hold identification cards and those who don’t) are additionally protected from this charge, from transporting marijuana and from certain other laws that refer to unlawful activities in unlawful places. Even though this is the case, they are often arrested and charged due to overzealous police officers and prosecutors. When such is the case, it is extremely important that the accused immediately consults with a skilled criminal defense lawyer who practices this area of the law so that the case can be resolved as quickly as possible.

Possession of marijuana for medical purposes may serve as a defense for any of these individuals, as they do not have the required “intent” to sell marijuana, nor is there any knowledge of an illegal character, since they are legally entitled to possess the drug. So while a patient or caregiver may possess marijuana and all of the paraphernalia that is commonly associated with a “for sale” offense, he or she should be able to beat this charge with the help of a knowledgeable lawyer.

It should be noted that patients and caregivers who are either additionally or exclusively charged with personal possession (which is considered a much less serious offense), are also entitled to use this defense if they have otherwise abided by the laws that regulate marijuana’s medical use.

Unfortunately, many law enforcement officers are skeptical of a medical marijuana defense, which is why they are quick to arrest anyone who has anything to do with this drug. The result is that an attorney must be hired to resolve the situation. When this happens, it is imperative that the accused contacts the unsurpassed criminal attorneys at The Kavinoky Law Firm to get the matter taken care of in an efficient and favorable manner. These attorneys specialize in California drug crime laws and their defenses and are dedicated to protecting the rights of their clients. They have law offices throughout California, enabling them to provide their outstanding services to anyone in need. For the most trusted legal advice and exceptional representation, contact them today for a free consultation.

Crack and Base Cocaine Charges Involving Minors

The punishment for a California crack or cocaine base conviction can be significantly increased by sentencing enhancements based on the involvement of minors. If you’ve been charged with a California cocaine base or crack charge with a sentencing enhancement alleging a minor was involved, you need a qualified drug defense lawyer on your side.

Knowledgeable California drug attorneys from The Kavinoky Law Firm can design a comprehensive defense strategy designed to protect you from the substantial repercussions of a cocaine base or crack charge and any accompanying sentencing enhancements.

You can’t be punished for any sentencing enhancement if the prosecutor is unable to convict you of the underlying narcotics charge. Also, the prosecutor must prove your guilt in the sentencing enhancement beyond a reasonable doubt, or you cannot receive additional punishment.

These are the sentencing enhancements that can be filed in a California cocaine base or crack case based on the alleged involvement of minors:

Code Section Enhancement Sentence 11353 Induce minor to possess, possess for sale, sell, etc. OR hire minor to sell, etc. OR sell, etc. to minor 3-6-9 11353.1(a)(1) If 11353 at church, youth center, day care center, pool, etc. Add one full year 11353.1(a)(2) If 11353 and on or near school Add two full years 11353.1(a)(3) If 11353 and minor four years or more younger than defendant Add 1-2-3 11370b If 11353 (sale) No probation, no suspension, no discretion PC 1170.72 If 11353, 11353.5, 11353.7, 11354, 11361, 11380, or 11353.1(a)(3), 11353.6, 11380. 1(a)(3) and minor is 11 years old or younger Circumstance in aggravation for sentencing

The allegation that a California crack or cocaine base offense involved a minor is a serious sentencing enhancement that can add years to your punishment if proven, so it’s essential to aggressively fight these allegations. Experienced California defense attorneys from The Kavinoky Law Firm are ready to review your case and prepare a comprehensive strategy. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Clandestine Labs and Locations

In California, a conviction for operating or contributing to a clandestine drug lab carries extremely harsh repercussions, and factors called sentencing enhancements can increase the consequences even more. One type of sentencing enhancement that can be filed in cases dealing with California clandestine labs is based on the location of the alleged drug manufacturing operation. If you’re charged with operating a clandestine lab, with or without sentencing enhancements, a knowledgeable California defense attorneys from The Kavinoky Law Firm has the skills needed to aggressively fight for your rights.

Most sentencing enhancements in California drug cases carry the same constitutional protections that apply to the underlying drug charges – your guilt must be proven beyond a reasonable doubt or you cannot receive additional punishment. Also, you cannot be punished for a sentencing enhancement if you aren’t convicted of the underlying drug charge.

Many California felony charges and sentencing enhancements are punishable by a range of prison terms referred to as the lower, the middle and the upper term. The sentence that the judge hands down will depend on aggravating and mitigating factors – issues that prompt the court to treat you more harshly or leniently.

These are the possible sentencing enhancements based on location that can be filed in a California clandestine lab case:

Code Section Enhancement Sentence 11366.5a Rents or makes available for manufacture Misdemeanor or 16-2-3 11366.6 Utilizing fortified location to manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11353.6 Manufacture on school grounds or within 1,000 feet of school (in a public place or place legally open to minors) when school was in session or when children using the school facility Add 3-4-5 11380.1a1 If 11380 and offense occurs upon ground of playground, church, child care, pool, when open or when minors using facility Add one year

A sentencing enhancement based on location can add many years to an already substantial prison sentence, so it’s in your best interests to aggressively fight both the clandestine lab charges and any sentencing enhancements.

Knowledgeable California defense attorneys from The Kavinoky Law Firm are well-versed in aggressive defenses to clandestine lab charges. Please contact a skilled California drug lawyer today at 1.800.NO.CUFFS for a free consultation.

California not only prosecutes those who use, sell, transport or cultivate marijuana but also prosecutes those who permit such activities on their property. Engaging in the opening, maintaining, renting or leasing of a place used for marijuana-related activities or selling items that will be used to unlawfully manufacture, process or prepare marijuana will be prosecuted as either misdemeanor or felony offenses at the prosecutor’s discretion. An individual who is accused of any of these offenses should therefore immediately contact a skilled California drug crime defense attorney who knows how to persuade a prosecutor that a misdemeanor filing is appropriate and who also knows how to then persuade a judge to further reduce or dismiss that charge.

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using marijuana faces either a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison. In order to convict an individual of this offense, the prosecutor must prove that he or she opened or maintained a place and, in doing so, had the specific intent to sell, give away or use marijuana on a repetitive or continuous basis. Because this law deals with “using” marijuana, it isn’t necessary that marijuana be sold on the premises, as an individual accused of this offense can be so charged by simply providing a place for marijuana users to gather.

A single or isolated instance of conduct that is prohibited under this law will not suffice for prosecution under this charge, as “maintaining” a place necessarily implies a continuous or ongoing activity that takes place on the property. Similarly, this law does not apply to repeated solo use in one’s own home.

Every person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, that property for the purpose of unlawfully manufacturing, storing, or distributing marijuana for sale or distribution faces either a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison. An individual who is convicted of this offense for the second time faces an automatic felony, punishable by two, three or four years in the state prison. In order to convict the accused of this offense, the prosecutor must prove that the owner had knowledge that the manufacturing of the marijuana was for the purpose of selling or distributing it – absent that knowledge, one can’t be convicted of this offense for simply making a property available to manufacture marijuana.

In addition to the jail or prison terms that may accompany these offenses, every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away marijuana will be declared a “nuisance,” and will be subject to forfeiture.

Any retailer or wholesaler who sells marijuana or a laboratory apparatus or device with the knowledge or intent that it will be used to unlawfully manufacture, compound, convert, process, or prepare marijuana for unlawful sale or distribution faces a misdemeanor, punishable by up to one year in county jail or a felony, punishable by imprisonment in the state prison and a maximum fine of $25,000.

Because the stakes are so high, it is mandatory that an individual accused of one of these offenses hires an attorney who is qualified to defend against these charges. The outstanding criminal attorneys at The Kavinoky Law Firm have mastered everything related to California marijuana defense and know the most compelling arguments to have their clients’ charges either reduced in an effort to provide their clients with the opportunity to receive drug treatment as an alternative sentencing option to jail or prison or dismissed entirely. To learn more, contact these unparalleled attorneys today for a free consultation.

Powder Cocaine Charges with Weight Enhancements

California cocaine charges are extremely serious allegations that carry substantial punishment, and the repercussions can be made even harsher by sentencing enhancements — factors that prompt the court to impose additional consequences.

One possible sentencing enhancement in a California cocaine case is a weight enhancement. If you’re facing a California cocaine charge with a weight enhancement, you need a qualified drug defense lawyer fighting your case. Experienced California drug attorneys from The Kavinoky Law Firm is ready to review your case and build a strong defense strategy.

The prosecutor must prove your guilt in both the underlying cocaine charge and the weight enhancement in order to prompt the court to impose the additional punishment. You cannot be convicted of, or punished for, the weight enhancement without being found guilty of the underlying drug charge.

The following weight enhancements can be filed in a California cocaine case:

Code Section Weight Sentence 1203.073b1 Two ounces of a substance containing cocaine or one ounce of pure cocaine No probation, judge has discretion 11370.4a1 More than one kilogram (approx. 2.2 lbs) Add three years 11370.4a2 More than four kilo Add five years 11370.4a3 More than 10 kilos Add 10 years 11370.4a4 More than 20 kilos Add 15 years 11370.4a5 More than 40 kilos Add 20 years 11370.4a6 More than 80 kilos Add 25 years

Fortunately, experienced California defense attorneys can aggressively defend both a cocaine charge and the accompanying weight enhancement. One possible defense strategy that your defense attorney may employ is a motion to suppress evidence. If the drug evidence against you wasn’t properly obtained, it cannot be used to convict you.

In some California cocaine cases, you may be eligible for alternative sentencing, which may include a deferred entry of judgment (DEJ), Proposition 36, or drug court. Your defense lawyer can review your case and determine whether any of these sentencing alternatives may be an option in your California cocaine case.

If you’re facing a California cocaine charge with weight enhancements, you need a knowledgeable defense lawyer aggressively fighting for your freedom. A skilled California drug lawyer from The Kavinoky Law Firm can review your cocaine case and develop a comprehensive defense strategy anywhere in the state. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Motion to recover evidence

Medical marijuana cases are unlike other marijuana-related offenses, in that, if the accused can prove that the marijuana was legitimately possessed or cultivated for medicinal purposes, its possession, use or cultivation will be excused. If this is established, it may be possible for the patient and/or his or her primary caregiver to recover the marijuana that was therefore improperly seized or to recover damages to cover the expenses to replant or repurchase the drug. Retaining an experienced attorney is the key to prevailing on this type of motion.

Motions for a return of property may be filed if no charges were ultimately filed following one’s arrest for possessing or cultivating marijuana, if the accused succeeded in having his or her charges dismissed during a pre-trial or Mower hearing or if he or she was acquitted following a judge or jury trial. This type of motion would be to recover one’s improperly seized marijuana, whether the marijuana was confiscated pursuant to a warrant or not.

Alternatively, the accused could initiate a civil lawsuit to recover monetary damages in the event that the seized marijuana had spoiled or otherwise been harmed or improperly destroyed by the police. The trusted and compassionate criminal attorneys at The Kavinoky Law Firm may be able to refer a skilled civil attorney should the accused choose to pursue this approach.

Another similar type of criminal motion that an individual who has been cleared of the legal charges associated with his medical marijuana possession or cultivation may raise is a motion for a determination of factual innocence. If it can be proven that no reasonable cause existed to believe that the accused committed the offense for which he or she was arrested, he or she may be able to have the court declare him or her factually innocent of the charges, which will result in the sealing and subsequent destruction of the arrest report and all related records.

Motions for the return of property and for a declaration of factual innocence are regulated by very technical and specific laws which must be strictly adhered to in order to prevail and have one’s marijuana returned. Because of this fact, it is imperative that an individual seeking return of his or her medical marijuana contacts one of the experienced attorneys at The Kavinoky Law Firm who will ensure that all procedures and filing requirements are properly met in an effort to have one’s property returned as quickly and inexpensively as possible. They have law offices throughout California, including several in and around the Los Angeles area, making them conveniently located for anyone in need of their exceptional legal advice, representation or other services. To learn more about how to successfully have one’s medical marijuana returned or about how to file a declaration of factual innocence, contact these outstanding attorneys today for a free consultation.

Possession of marijuana for sale – physical, constructive and joint possession

Possession of marijuana for sale, in California, is a felony that carries serious penalties. While there are a number of defenses that are applicable to this crime, only a skilled criminal defense lawyer who specializes in California drug defense will be prepared and qualified to present them in an effective manner.

Possession of marijuana for sale has three “elements” or facts that must be proven to convict the accused. The accused must (1) possess the marijuana, (2) have the intent to sell the marijuana and (3) have knowledge of both its presence and illegal character. “Possession” in and of itself is a gray area, as there are several types of possession that law enforcement and the prosecution can use to prove this offense. The accused can have physical (otherwise known as actual) possession, constructive possession or joint possession of the drug and any of these will be sufficient to prove the accused guilty. This is one of the reasons why an experienced criminal attorney who regularly practices this area of law is so invaluable, as he or she knows how to rebut this issue.

Physical or actual possession means that the accused individual knowingly exercised direct physical control over the drug – that he or she actually had the marijuana on his or her person. This type of possession is probably the most difficult to defend, as people tend to know what items they carry with them. However, medical marijuana use, temporary possession for disposal and illegal search and seizure are all defenses that may be applicable to this type of possession.

Constructive possession refers to situations where the accused individual didn’t have actual or physical control over the drug but instead knowingly exercised control over or had the right to control the marijuana either directly or through another person or persons. Constructive possession, along with physical and joint possession, may be proven through circumstantial evidence (that is, evidence that isn’t directly observed but is inferred from events or circumstances that surround it). A specific example demonstrating constructive possession (though not specific to a possession for sale case) lies in a case where an individual was found to have exercised control over marijuana because he was found on a remote parcel of land where marijuana plants were being grown, where there was evidence that the plants had been cared for on a regular basis and where the owner of the property had been hospitalized during the time of the arrest. Lack of knowledge, entrapment and the above defenses are most likely to be argued when constructive possession is alleged.

Joint possession will apply in situations where two or more people may be guilty of possessing marijuana with the intent to sell it. Joint control or possession will be inferred under a variety of circumstances. An example includes a case where the defendant was found barefoot in the codefendant’s house where drugs were found, that his suit and shoes were found in a closet and that there were traces of marijuana in his shirt and pants pockets. This circumstantial evidence was enough to support the belief that he and the codefendant jointly occupied the premises and had knowledge of the presence of marijuana and of its narcotic character, that they both had access to the home and that they shared joint control of the home. Lack of knowledge, medical marijuana use, temporary possession for disposal and illegal search and seizure will be the defenses most likely to apply to joint possession.

The outstanding attorneys at The Kavinoky Law Firm have mastered these defenses, as well as a variety of others, that are applicable to “possession of marijuana for sale” offenses. They excel in articulating them to judges and jurors in ways that successfully tell their client’s side of the story. With law offices in Los Angeles and throughout the state, they are easily accessible for anyone in need of an exceptional California drug defense attorney. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.

California Methamphetamine Charge Involving Minors

Certain factors called sentencing enhancements can be added to California methamphetamine cases that can add years to the potential sentence. The involvement or presence of minors is one sentencing enhancement that can be filed in a meth case.

Because the repercussions from California methamphetamine charges are so severe, it’s imperative to have skilled California defense attorneys on your side. A knowledgeable California drug defense lawyer from The Kavinoky Law Firm thoroughly understands the complexities of a methamphetamine charge and will aggressively defend you against both the underlying charges and any sentencing enhancements.

A prosecutor must prove both the underlying drug charge and any sentencing enhancements beyond a reasonable doubt in order for you to receive the additional punishment. If you aren’t convicted of the underlying charge, you cannot be punished for the sentencing enhancement.

California sentencing guidelines spell out a lower term, a middle term and an upper term for certain offenses. The sentence that is meted out depends on aggravating and mitigating factors — information that prompts the judge to treat you more harshly or leniently — and the facts of each case. The sentence for each offense or enhancement is spelled out in months or years in prison.

The California Health and Safety Code allows for the following sentencing enhancements to be filed in methamphetamine cases involving minors:

* 11380 — Utilizing, soliciting, furnishing a minor re: methamphetamine — 3-6-9
* 11379.7 — Manufacturing methamphetamine (H&S 11379.6) or possession of precursor chemicals with intent to manufacture (H&S 11383) with a child under 16 present, add two years. If a child under 16 suffers great bodily injury during the commission of these offenses, add five years.

A California methamphetamine charge involving minors can bring sentencing enhancements that add years to a prison commitment, so it’s critical to aggressively fight both the underlying drug charge and any enhancements.

Experienced California defense attorneys from The Kavinoky Law Firm can thoroughly review your methamphetamine case and help you determine your next step. Please contact a skilled California drug defense lawyer today at 1.800.NO.CUFFS for a free consultation.

Heroin Charges and Location of Crime

Violating California’s heroin laws can result in a lengthy prison term, and factors known as sentencing enhancements can add substantially to your sentence. One possible sentencing enhancement in a California heroin case has to do with the location where the alleged offense occurred.

If you’re facing a California heroin charge, it’s important to fight for your rights and your freedom with the help of skilled California defense attorneys. An experienced California drug lawyer from The Kavinoky Law Firm is ready to review your case and build an aggressive defense strategy.

Sentencing enhancements must be proven beyond a reasonable doubt, just like the underlying drug charge, in order to result in additional punishment. If you are not convicted of the underlying drug charge, you can’t be punished for the sentencing enhancement.

Sentencing enhancements based on location in California heroin cases are triggered by either the allegation that you maintained a place to commit the alleged heroin offense or committed the offense in close proximity to a school, youth center or another place where children gather.

Felony offenses and certain sentencing enhancements follow California’s determinate sentencing laws — there is a lower term, a middle term and an upper term. The sentence the judge imposes if you’re convicted will depend on issues that include aggravating and mitigating factors — information that prompts the court to treat you more harshly or leniently.

These are the sentencing enhancements based on location that can be filed in a California heroin case:

Code Section Enhancement Sentence 11366 Maintain a place for sale or use Misdemeanor or 16-2-3 11366.5a Rents or makes available for manufacture or distribution Misdemeanor or 16-2-3 11366.6 Utilizing fortified location to possess for sale, sell, or manufacture 3-4-5 11366.5b Derive excessive profit and allow to be fortified 2-3-4 11353.6 Possess for sale, sell, manufacture upon grounds of school or within 1,000 feet of school (in a public place or place legally open to minors) when school was in session or when children using the school facility Add 3-4-5 11352b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or oceanfront beach if drug-free zone (includes library, pool, youth center) Add one year

A location sentencing enhancement can add years to your prison sentence in a California heroin case, but not if you avoid being convicted in the first place. Knowledgeable California defense attorneys from The Kavinoky Law Firm will thoroughly examine all of the evidence in your heroin case and determine the appropriate challenges. Please contact us today at 1.800.NO.CUFFS for a free consultation.