Category: Drug Crimes

Drug Crimes | No Cuffs

Non-judicial forfeiture proceedings

Asset forfeiture is the process by which the government seizes one’s property that it believes is “reasonably” connected to illegal activities. With respect to marijuana or other drug offenses, this property can be anything from the facility used to manufacture or store the drug, to the vehicle used to transport the drug to any money that is associated with the purchase or the sale of the drug. Because the government has a relatively low burden to meet in order to obtain one’s property under forfeiture law, it is absolutely necessary for an individual who has been accused of any marijuana-related activity to immediately contact one of the well versed and experienced criminal attorneys at The Kavinoky Law Firm in order to protect his or her rights and assets.

Non-judicial forfeiture proceedings are one type of asset forfeiture proceeding – civil and criminal are the other two. Non-judicial forfeiture proceedings include “summary forfeiture” and “administrative forfeiture” proceedings, neither of which requires judicial involvement. A “summary forfeiture” is the process by which the government seizes property without any notice to or hearing for the owner. The only type of property that may be summarily forfeited is that which is illegal “per se,” which means illegal on its face and includes dangerous, toxic or hazardous raw materials or products and their containers. “Administrative forfeiture” must be specifically permitted by law, otherwise property may only be forfeited through formal court action. An administrative forfeiture is the process by which property is forfeited to the government by the investigative agency that seized it.

A non-judicial, administrative forfeiture proceeding, if applicable, pertains to property that does not exceed $500,000 (which includes vehicles, merchandise or baggage), is illegally imported (regardless of its value), is a vehicle that was used to import, export, transport or store marijuana (regardless of its value) or is a monetary instrument (that is, any money, domestic or foreign, traveler’s checks, stocks, checks, bank notes and money orders) whose value again, is irrelevant. Real property (such as buildings and homes) and multiple items of property that are seized that total more than $500,000 must be forfeited through judicial proceedings.

Property that has been seized may be returned to an individual who shares an ownership in the property if it is proven that the individual had no knowledge or reason to know of the property’s illegal use or of the accused individual’s criminal record or reputation. Property that is likely to perish, waste, greatly depreciate in value or that is simply too expensive to maintain during the administrative proceeding may be sold by the seizing agency (under certain conditions) and the proceeds will be treated as a substitute for the original property in the ensuing forfeiture.

When an agency decides to proceed with an administrative forfeiture proceeding, it must inform the owner within 60 days of the date of seizure (in most circumstances) in order to avoid a claim by the property owner that his or her Constitutional rights were violated. There are very specific guidelines that regulate how notice must be given, which is one of the reasons why it is so important to retain a skilled attorney who has mastered this area of the law and who therefore knows when rules and regulations have not been followed.

Judicial review of an administrative forfeiture may take place if the property owner feels that he or she is entitled to lawful possession of the property because his or her property was accidentally, fraudulently or improperly seized. In order to obtain such a review, the property owner must overcome some serious hurdles. The outstanding attorneys at The Kavinoky Law Firm are dedicated to protecting the rights and property of their clients and know what arguments to raise to effectively challenge asset forfeitures. To speak to one of their exceptional lawyers, contact the firm today for a free consultation.

Personal possession of marijuana – entrapment

Personal possession of marijuana – entrapment

Personal possession of marijuana, in California, may be charged as either a misdemeanor or as a felony, depending on the circumstances of the alleged offense. While the crime isn’t as serious as a possession of marijuana for sale charge, an individual convicted of this offense still faces jail or prison time, heavy fines, probation and a variety of additional consequences, which is why the accused should immediately contact a criminal defense lawyer who is knowledgeable on this subject and who knows what defenses are most likely to result in the acquittal of his or her client.

Entrapment is one such defense. If the defense attorney can prove by a “preponderance of the evidence” (that is, that the defense’s version of events is even slightly more believable than the prosecution’s) that the entrapment of his or her client took place, the accused will be entitled to an acquittal on the possession charge.

Entrapment takes place when a law enforcement officer or agency persuades an otherwise law-abiding person to commit a crime, where that person’s motive is based on something other than ordinary criminal intent. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or another typical criminal purpose. Affirmative acts by the officer or agency that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or that the crime will go undetected, an offer of exorbitant consideration or any similar enticement. It should be noted that when a judge or jury evaluates an entrapment defense, they are looking at the conduct of the law enforcement officer or agency and at what a reasonable person would have done under the same circumstances – they are not concerned with the character of the accused, with his or her predisposition to commit the crime or with his or her subjective intent.

For entrapment to apply to a personal possession charge, the defendant’s criminal attorney must prove that, had the entrapment not taken place, his or her client would not have possessed marijuana. For law enforcement to take the time to induce an otherwise innocent individual to possess marijuana just to procure his or her arrest for this charge would be unlikely – the solicitation would more likely be a part of a bigger “sting” operation – perhaps to ultimately arrest the individual for possession of marijuana for sale. In any event, a good criminal attorney will know what arguments to make to convince a judge and jury that the officer’s or agency’s conduct was so outrageous and/or persuasive that it would have provoked anyone to commit the same offense.

The outstanding attorneys at The Kavinoky Law Firm have mastered everything related to California’s drug laws, including the variety of defenses that are relevant to these crimes. They meticulously review each client’s case, looking for as many applicable defenses as they can. They understand the ways that an entrapment defense can be successfully argued in a California possession of marijuana for personal use case and how to effectively articulate its merits to a judge and jury. With law offices throughout California, including several in Los Angeles, The Kavinoky Law Firm is conveniently located for anyone in need of an exceptional drug crime defense attorney. For the most trusted legal advice and unparalleled representation, contact them today for a free consultation.

Clandestine Labs and Prior Convictions

Clandestine Labs and Prior Convictions

Operating a clandestine lab is an extremely serious offense under California drug laws, and factors called sentencing enhancements can increase the potential repercussions even more. One possible sentencing enhancement in a California clandestine lab case is for prior convictions.

If you’ve already been convicted of certain drug offenses in California, those priors can be used to substantially increase your potential sentence. A skilled California drug lawyer from The Kavinoky Law Firm will fight to protect you from the consequences of both the underlying clandestine lab drug charge and any sentencing enhancements.

You cannot be punished for the prior convictions if you aren’t convicted of the underlying drug charges, so it’s critical to have an aggressive defense strategy. Your defense lawyer will fight your underlying drug charges and likely seek to have your prior convictions stricken from the record so that you can’t receive additional punishment for them.

These are the sentencing enhancements that can be filed for prior convictions in a California clandestine lab case:

Code Section Enhancement Sentence 11370.2b,c New 11379.6 or 11383 with prior 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11383 Add three years for each prior conviction PC 1203.073b8 Any new 11379.6,11382, 11383 with prior 11378, 11379, 11379.6, 11380, 11382, 11383 No probation, judge has discretion PC 667.5b For each prior prison commitment
(Not imposed if the defendant remained free of further felonies and prison commitments for five years after release)

Add one year
11366.5c Prior 11366.5a with new 11366.5a 2-3-4

Because a sentencing enhancement for one or more prior convictions can add substantially to your sentence in a California clandestine lab case, it’s in your best interests to aggressively fight the underlying drug charges. Seasoned California drug lawyers from The Kavinoky Law Firm have the skills and experience to craft a comprehensive defense to your clandestine lab case. Please contact us today at 1.800.NO.CUFFS for a free consultation.

Location and a Methamphetamine Charge

Sentencing Enhancement: Location and a Methamphetamine Charge

Certain factors known as sentencing enhancements can significantly increase your punishment in a California methamphetamine case. The location of the alleged criminal activity is one possible sentencing enhancement in a meth case.

If you’re facing a methamphetamine charge in California, you want an attorney on your side who will do everything possible to minimize or even eliminate negative repercussions. Experienced California defense attorneys from The Kavinoky Law Firm is well-versed in the latest defense techniques and will fight aggressively to protect your rights.

The prosecutor in your California methamphetamine case must prove both the underlying drug charge and the sentencing enhancement beyond a reasonable doubt in order for you to receive additional punishment. You can’t be convicted of a sentencing enhancement unless you’re found guilty of the underlying charge.

California determinate sentencing law calls for one of three prison terms in felony cases — the lower term, the middle term and the upper term, expressed in months or years. The sentence that’s applied after a conviction depends on aggravating and mitigating factors — issues that prompt harshness or leniency — and the facts of the case.

The following location sentencing enhancements can be filed in a California methamphetamine case:

Section Number Charge Sentence 11366 Maintaining a place for sale or use 16-2-3 11366.5a Rents or makes available 16-2-3 for manufacture or distribution 11366.6 Using a 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 or manufacture upon school grounds or within 1,000 feet of school (in a public place, or place legally open to minors), while school was in session or while children were using the school facility 3-4-5 11379b Transports for sale to non-contiguous county 3-6-9 11380.5 Possession for sale or sale at public park or ocean-front beach if drug-free zone (includes library, pool, youth center) Add one year

 

11380.1a1 If 11380 and offense occurs upon grounds of playground, church, childcare, pool, when open or when minors using the facility Add one year 11380.1a2 If 11380 and offense occurs upon grounds of, or within 1,000 feet of school in session or when minors using facility Add two years

Transactions involving substances that have been falsely represented as marijuana

California has declared that all activities related to marijuana (with the exception of those that fall under the state’s medical marijuana laws) are illegal and will therefore be criminally prosecuted. Most of these offenses carry severe penalties, which may include drug treatment or education programs, jail or prison sentences and fines. In an effort to protect public health and safety, the legislature has also declared it a crime to sell, furnish, transport, administer or give away a substance that one falsely represents is marijuana and consequently imposes the same penalties on an individual convicted of this offense. As a result, when an individual is accused of this offense, he or she should immediately contact a California defense lawyer who has mastered the laws and defenses that regulate marijuana in this state.

According to California’s Health and Safety Code, every person who agrees, consents or in any manner offers to unlawfully sell, furnish, transport, administer or give away marijuana to another or who offers, arranges or negotiates to have marijuana unlawfully sold, delivered, transported, furnished, administered or given to another and who then sells, delivers, furnishes, transports, administers or gives or offers, arranges or negotiates to have sold, delivered, transported, furnished, administered or given to another any other liquid, substance or material in lieu of the marijuana faces a misdemeanor, punishable by up to one year in the county jail or a felony, punishable by imprisonment in the state prison.

This type of charge requires the skill and experience of a criminal attorney who regularly practices this area of the law and who knows the defenses that will successfully protect his or her client from the penalties associated with this offense. Because this charge is a bit unusual, in that an illicit drug is not necessarily involved in the transaction, defending it calls for the knowledge, creativity and insight that only a California drug crime defense lawyer possesses. He or she must employ the defenses that typically apply to offenses where marijuana is involved, such as illegal search and seizure and lack of intent, which could still apply to this type of situation.

The unsurpassed criminal defense lawyers at The Kavinoky Law Firm are here to help. They receive on-going training and education with respect to California’s drug laws, the ever-changing policies that serve as the basis for them and the many defenses that apply to these laws, giving them a leg up on the competition when it comes to cutting-edge trial strategies and procedural tactics. With law offices throughout the state, including several in and around Los Angeles, they are conveniently located for anyone in need of an exceptional California drug crime defense attorney. For the most trusted legal advice and outstanding representation, contact The Kavinoky Law Firm today for a free case evaluation.

Cocaine Charges Involving Minors

Cocaine Charges Involving Minors

California law allows for numerous sentencing enhancements to be added to a cocaine charge. One possible sentencing enhancement in a California powder cocaine case stems from the involvement of minors in the alleged drug activity. If you’re facing a California cocaine charge with a sentencing enhancement involving minors, you face serious repercussions. Skilled California defense attorneys from The Kavinoky Law Firm can review your case and begin planning a strategic defense.

The court cannot impose the additional punishment of a sentencing enhancement unless the prosecutor proves both the underlying drug charge and the enhancement beyond a reasonable doubt. You cannot be punished for a sentencing enhancement if you’re not convicted of the underlying charge.

California’s determinate sentencing laws specify the punishment for felonies and certain sentencing enhancements as a lower, middle or upper term, usually expressed in years. Aggravating or mitigating factors — information that prompts the judge to treat you more harshly or leniently — help the judge decide which sentence to impose.

The following sentencing enhancements can be filed in a California powder cocaine case involving minors:

Code Section Enhancement Punishment 11353 Induce minor to possess, possess for sale, sell, etc. OR hire minor to sell OR sell to minor 3-6-9 11353.1(a)(1) Violation of 11353 at a church, youth center, day care, pool, etc. Add one year 11353.1(a)(2) Violation of 11353 on or near school grounds Add two years 11353.1(a)(3) 11353 with minor four years younger than defendant Add full 1-2-3 11370b 11353 (sale) no probation, no suspension, no discretion PC 1170.72 11353, 11353.5, 11353.7, 11354, 11361, 11380 or 11353.1(a)(3), 11353.6, or 11380.1(a)(3) and the minor is younger than 12 Aggravating circumstance for sentencing

Powder cocaine cases involving minors are treated extremely seriously, so you need a top defense lawyer aggressively defending your case. Skilled California defense attorneys from The Kavinoky Law Firm are ready to review your cocaine case and help you determine your next step. Please contact an experienced California drug defense lawyer today at 1.800.NO.CUFFS for a free consultation.

Patients and caregivers

Patients and caregivers

California has legalized medical marijuana use, cultivation and distribution for those who are seriously ill and in need of the drug (so long as they have a doctor’s recommendation or prescription for it) and for their primary caregivers. These laws are detailed in Proposition 215 – also known as the Compassionate Use Act – and Senate Bill 420. While California has legalized marijuana for medicinal purposes, any use of the drug is still prohibited by federal law. As a result, an individual living in California who has the right to use, grow or distribute medical marijuana may still be brought up on federal charges. It should also be noted that such an individual may still be arrested in California by his or her local police department, as law enforcement is quick to arrest those who have any dealings with this drug. These are just a few of the reasons why it is necessary for an individual who has been arrested for any activity dealing with marijuana to contact an experienced criminal defense lawyer who specializes in drug offenses.

SB420 expands the Compassionate Use Act to allow caregivers to have more than one patient in their home county but still restricts caregivers to one patient if their patient lives out of their county. The law protects qualified patients, patients with identification cards and their primary caregivers from prosecution for using, transporting or processing small amounts of medical marijuana and makes it more difficult for prosecutors to charge them with intent to sell. As previously mentioned, law enforcement officials may nonetheless arrest an individual who participates in these activities, but the law is designed to protect these individuals, so long as they follow the rules that are associated with its use and growth. As for possession or growth, a patient or his or her caregiver may possess or grow up to eight ounces of dried bud or conversion (not leaf, seeds or stems) and up to six mature or twelve immature plants unless a doctor or the community have authorized more.

Qualified patients are those who have a doctor’s permission to use marijuana for medical purposes. They are entitled to possess and cultivate marijuana, so long as it is in accordance with a doctor’s recommendation. Persons with an identification card hold government issued cards that entitle them to the same protections as qualified patients, but in exchange for the card, the rules regarding the marijuana use are more strictly regulated. Primary caregivers are persons, designated by a qualified patient or by a person with an identification card, who have consistently assumed responsibility for the housing, health or safety of that patient. Primary caregivers must be at least 18 years old (unless they are the parents of a minor child who is a qualified patient or a person with an identification card or the caregiver is otherwise entitled to make legal medical decisions) and may be private caretakers if so designated by a patient, a licensed clinic or health care facility, a residential care facility for the elderly, a hospice or a licensed home health agency.

These definitions and law apply to California state law. Cities and counties can adopt and enact their own legislation that regulates medicinal marijuana use, possession and cultivation to supplement these existing laws. As mentioned above, current law only permits a patient or caregiver to possess or grow up to eight ounces of dried bud or conversion (not leaf, seeds or stems) and up to six mature or twelve immature plants. Depending on where one lives, the local citizens or lawmakers of that city or county may have expanded those amounts.

The bottom line is that although California has legalized the use of medical marijuana, the laws and their enforcement are still flawed. The outstanding criminal attorneys at The Kavinoky Law Firm are here to help. They have mastered the area of drug crime defense and know how to effectively convey a medical marijuana defense to judges and jurors. For unsurpassed representation, contact them today for a free consultation.

Personal possession of marijuana – illegal searches and seizures

Personal possession of marijuana – illegal searches and seizures

Possession of marijuana for personal use may be charged as either a misdemeanor or a felony in California, depending on the circumstances under which the drug was discovered. While the penalties for this offense aren’t as severe as possessing marijuana for sale, they can still be serious, which is why an individual accused of this offense should contact a criminal attorney who understands this area of the law and all of the defenses that are applicable to it.

An illegal search and/or seizure will be one of the most useful defenses if properly argued and proven, as Constitutional violations can result in the exclusion of incriminating evidence and a dismissal of one’s criminal charges. Because this defense requires a thorough understanding of both California and federal laws, only a skilled criminal defense lawyer should attempt to present this type of evidence.

The Fourth Amendment to the United States Constitution protects an individual against unreasonable searches and seizures of his or her person or property. This law prohibits unreasonable invasions of privacy, which basically means that police must have a warrant before conducting a search and that police must have probable cause to believe that an individual either possesses something illegal or is involved in illegal activity before stopping that person. It must be noted that a “search” doesn’t technically take place unless the individual being searched had a “reasonable expectation of privacy”. For example, if the police saw a marijuana cigarette coming out of someone’s pocket, that wouldn’t qualify as a search. A search would take place, however, if the police had to look inside that person’s bedroom dresser to find that same cigarette. Because a “search” didn’t take place in the first scenario, a warrant would be unnecessary.

Most personal possession of marijuana cases involve an arrest and evidence that resulted from a search and seizure. When the police suspect that an individual possesses marijuana, a search may involve an inspection of that individual, his or her surroundings and/or his or her property in order to locate all of the drugs. If found, a seizure refers to the confiscation of the marijuana and/or to taking the individual possessing the marijuana into custody. Generally speaking, if the seizure is invalid it is because it was preceded by an invalid search.

Both persons and property may legitimately be searched and seized by the police (either with or without a warrant), as long as circumstances justified the officers actions. If, however, law enforcement act without reasonable or “probable cause” or exceed their Constitutional limitations, their searches and seizures may be declared invalid and any evidence that they subsequently retrieved will be excluded from one’s case. An experienced California drug crime defense attorney will meticulously review a client’s file to see if the arresting law enforcement agency violated his or her client’s Constitutional rights in any way.

The outstanding attorneys at The Kavinoky Law Firm have mastered the laws (both state and federal) that are relevant to California drug offenses. When examining a personal possession case, they know how to immediately spot an illegal search and/or seizure and how to effectively convey this type of defense to the judge and jury. They are dedicated to protecting the rights of their clients and will aggressively pursue acquittals when they believe that illegal searches and/or seizures have taken place and where acquittals aren’t possible, they know the most effective arguments to convince a judge to impose alternative sentencing that will permit their client’s convicted of possessing marijuana for personal use to receive treatment instead of a jail sentence. For questions about illegal searches and seizures or the many other defenses that are applicable to a possession charge, contact The Kavinoky Law Firm today for a free consultation and for unsurpassed legal representation.

Federal Crimes

The vast majority of criminal offenses are prosecuted in state superior courts. In California, many offenses fall under the jurisdiction of state courts, including most DUI / DWI offenses, drug crimes, domestic violence offenses, assaults, sex crimes, and homicides. However, certain crimes are prosecuted in federal court. Below are examples of Federal Crimes.

Federal crimes are, by definition, serious offenses that carry severe consequences, so it’s critical to have a top defense lawyer fighting for your rights. If you’re accused of committing a federal crime in Los Angeles, Riverside, San Bernardino, San Diego, Orange or Ventura counties, or anywhere in California, you need expert legal help. The experienced California Federal Crimes defense attorneys of The Kavinoky Law Firm will fight aggressively for your rights in federal court and work to shield you from any adverse repercussions.

There are several factors that determine whether an offense will be prosecuted in state or federal court. The first is the nature of the offense itself. Tax evasion and mail fraud, fall under the exclusive control of the federal government and thus will be pursued as a federal offense.

Other offenses that would normally be pursued in state courts are prosecuted as federal crimes because the defendant is alleged to have crossed state lines in the commission of the offense. Offenses such as kidnapping, murder, rape and child molestation are examples of crimes that can be pursued in federal court if, for example, the defendant is accused of traveling from California to another state during the commission of the crime.

Drug trafficking is commonly pursued as a federal crime under the authority of the Commerce Clause of the U.S. Constitution. Federal drug offenses generally carry far greater repercussions than the same offenses pursued in state courts.

Any offense that is committed in a location under the exclusive control of the federal government will also be pursued in federal courts. The District of Columbia, national parks, military bases, and U.S. territories such as Puerto Rico and Guam, are examples of locations where even relatively minor offenses such as DUI / DWI, will be pursued as federal crimes. Also, any offense committed in a federal courthouse or prison or aboard an aircraft or oceangoing vessel will be prosecuted in federal courts.

Federal crimes often carry far more severe consequences than similar offenses prosecuted in state courts. Also, if you are sentenced to federal prison, you may be sent to a facility much farther away from your home than a defendant sentenced to state prison.

Fortunately, it’s possible to aggressively fight federal criminal charges and create reasonable doubt of your guilt. The experienced California Federal Criminal defense attorneys of The Kavinoky Law Firm have the skills needed to effectively fight your federal charges and protect your rights. To learn more about aggressive defenses to federal crimes in California, contact us today for a free consultation.

California Methamphetamine Charges

California Methamphetamine Charges

California drug charges for methamphetamines are extremely strict. So if you’re caught using, possessing, selling or manufacturing meth you face harsh repercussions according to the California drug laws. Fortunately, it’s possible to aggressively fight a California meth charge. Skilled California defense attorneys from The Kavinoky Law Firm are ready to review your case and begin developing a strong defense strategy to fight your California drug charge.

Methamphetamine is a schedule II drug under California Health & Safety Code section 11055 (d) (2)). Some offenses can be charged as either misdemeanors or felonies. California drug laws have a complex sentencing structure when it comes to felonies that allows for a lower term, a middle term and an upper term. The sentence is determined by the facts of the case and aggravating and mitigating factors — issues that would prompt the court to treat you more harshly or more leniently.

One or more of the following meth charges can be brought in a California methamphetamine case:

Section number Charge Sentence (in months or years) 11377 Possession of methamphetamine Misdemeanor or 16-2-3 11378 Possession for sale 16-2-3 11379 Sale (transport, import, furnish, administer, give away or offers) 2-3-4 11379.6 Manufacturing 3-5-7 plus $50,000 11382 Agrees to sell then sells another substance in lieu Misdemeanor or 16-2-3 of 11383 a,c Possession of precursor chemicals with intent to manufacture 2-4-6 11366.8a Possess or use false compartment in vehicle to store or transport Misdemeanor or 16-2-3 11366.8b Design or construct false compartment in vehicle to store or transport 16-2-3 11401 Analog of methamphetamine (controlled substance) (i.e. substantially similar chemical structure or effect) PC 182 a1 Conspiracy to do any of the above (substantive charge) 11532 Loitering in a public place with intent to commit a narcotics offense Misdemeanor PC 1170.74 Meth in crystalline form is an aggravating sentencing factor

In addition to the methamphetamine charges listed above, there are a number of sentencing enhancements that can be added in a California methamphetamine case that can greatly increase the potential punishment. The possible sentencing enhancements in a California meth case include weight enhancements, prior convictions, firearms, certain locations and minors. This is where the defense attorneys from the Kavinoky Law Firm can help fight your meth charge.