Proposition 47: The Safe Neighborhood and Schools Act

election-buttonProposition 47, on this November’s ballot, would bring sweeping changes to how various crimes in California are classified.  If passed by California voters, Proposition 47 would reduce the classification of most “nonserious and nonviolent property and drug crimes” from a felony to a misdemeanor. 

The single greatest area of impact this act would have is the reclassification of the personal use of most drugs from a felony to a misdemeanor.  This, in and of itself, is a huge step in a positive direction, on a multitude of levels.  Other crimes that would be reclassified as misdemeanors are: Shoplifting, where the value of property stolen does not exceed $950; grand theft, where the value of the stolen property does not exceed $950; receiving stolen property, where the value of the property does not exceed $950; forgery, where the value of forged check, bond or bill does not exceed $950; fraud, where the value of the fraudulent check, draft or order does not exceed $950; and writing a bad check, where the value of the check does not exceed $950. 

Further, this act would allow for re-sentencing for anyone currently serving a prison sentence for the aforementioned crimes, which could be as many as 10,000 inmates. The act would require a “thorough review” of criminal history and risk assessment of any individuals before re-sentencing to ensure that they do not pose a risk to the public.

However, one major caveat to the above relates to defendants who have prior convictions for murder, rape, certain sex offenses or certain gun crimes, as they can still receive felony sentencing for the above-enumerated crimes. 

This measure could have a huge fiscal impact at the state and county level, with annual savings projected to be in the hundreds of millions of dollars.  Savings at the state level would be passed on to school truancy and dropout prevention, mental health and substance abuse treatment, and victim services, where the money would generate exponentially greater utility than it would incarcerating individuals convicted of the above offenses.  

While reservations about some aspects of this ballot measure, such as reclassifying the theft of a firearm costing less than $950 to a misdemeanor, have been expressed, it is important to remember that Proposition 47 is a minor tweak to California’s Penal and Health & Safety Codes.  The counter-argument to the above is that in the vast majority of cases, the theft of a firearm would also constitute burglary, which would remain felonious conduct, and anyone who breaks into a commercial building or residential dwelling to steal a firearm, still faces the potential of a felony strike conviction, depending on the facts of the case. 

On the whole, I think Proposition 47 is a major step in the right direction from both a fiscal and moral perspective, especially as it relates to the personal use of controlled substances, and how we penalize such conduct. 

 

People v. Baniani: A Huge Win for California’s Medical Marijuana Patients and Collectives- Law Office of Scott C. Thomas Press Release

Santa-Ana-Court-of-AppealsOn August 22, 2014, the Court of Appeal, Fourth District, Division Three, rendered a landmark opinion in support of the rights of qualified patients and collectives in having an affirmative defense under California’s Medical Marijuana Program Act (MMPA). 

Attorney Scott C. Thomas, of the Law Office of Scott C. Thomas, and Attorney Christopher Glew, of the Law Offices of Glew & Kim, were appellate counsel on the matter. 

According to Mr. Thomas, “This is a landmark ruling which affirms the rights of qualified patients, who are members of a collective, to have a defense under the MMPA.  No longer can prosecutors make the argument that anytime money is exchanged for marijuana, between members of a collective, the defenses afforded under the MMPA are voided because any monetary transactions are per se unlawful, or that these transactions constitute a ‘profit,’ in violation of the law.  The case clearly spells out that anytime a criminal defendant raises a reasonable doubt as to his or her qualified patient status, they are afforded a defense under the MMPA, and the question of whether or not the collective made a profit is a question for the jury, not the trial judge, to decide.” 

“This decision is another giant step toward legitimacy for medical marijuana patients,” said Mr. Glew. “It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws.”

Baniani, the founder of Herbal Run, a medical marijuana collective in Newport Beach, CA, was represented by Mr. Glew during his first trial, and was afforded a defense under the MMPA.  Accordingly,the jury on his first trial hung on both the sale of marijuana, and possession of marijuana for sale, charges.  At Mr. Banianai’s second trial, the trial court denied Mr. Baniani a defense under the MMPA, because the court found that there was evidence Mr. Baniani charged for marijuana.  Mr. Baniani was subsequently convicted of possession of marijuana for sale.

The Court of Appeal reversed the trial court’s ruling, with regard to the denial of a defense under the MMPA, and remanded it for a new trial, agreeing with appellate counsel’s assertion that the denial of a defense under the MMPA was erroneous and prejudicial to Mr. Baniani, especially in light of the fact that at Mr. Baniani’s first trial, when he was afforded a defense under the MMPA, the jury hung on both counts. 

“This victory follows in the steps of the Colvin and Jackson decisions, and will put an end to prosecutors arguing that qualified patients, who collectively associate to cultivate marijuana, are not afforded a defense under the MMPA.  Now prosecutors will have to put the issue before a jury, who will receive an MMPA affirmative defense jury instruction, and prove their case beyond a reasonable doubt.  It’s a big win for the medical marijuana community,” said Mr. Thomas.

Case reference number G048535 (Super. Ct. No. 10HF1852)

The opinion, which has been certified for publication, can be found here: http://www.courts.ca.gov/opinions/documents/G048535.PDF

Know Your Rights

Coachella-five-weekends

If you’ve ever watched “Cops,” you’ve heard the phrase, “Anything you say can, and will, be used against you, in a court of law.”  With Weekend 1 of Coachella right around the corner, I thought it might be helpful to give you all a quick rundown of what your rights are, and how to invoke them, should you find yourself being questioned by the police. 

First off, do not initiate contact with the police.  Why?  Well, once you initiate contact with law enforcement, it is deemed a consensual encounter, and should the officer notice that, say, you have dilated pupils, you have effectively opened the door for the officer to investigate you based on any observations made during the conversation.  Put simply, if you walk up to the horse-mounted police officers to pet the horse, you’re gonna have a bad time!

Next, if an officer approaches you, do not answer any questions; politely state that you will not answer any questions and ask the officer if you are free to leave or if you are being detained.  If the officer tells you you’re free to go, get out of there; if the officer tells you that you are being detained, politely state that you’re invoking your right to remain silent and will not answer any questions without your attorney present. 

More often than not, people think they will curry favor with law enforcement officers by answering questions or making admissions.  However, this is NEVER the case.  While it is essential to treat the officers with respect and to be polite, you will not do yourself any favors by answering questions posed by law enforcement officers.  Nothing good, in my experience, has ever come from speaking to the police who are investigating you. 

I am often asked how one should go about invoking their rights, in a polite way; the linked youtube video provides an excellent example of how to politely assert your rights to a law enforcement officer.  The video can be found at the following address: https://www.youtube.com/watch?v=qkKk5VAy59w (skip to the 1:00 mark for the good stuff).

Also, if you feel you might have trouble asserting your rights or articulating your thoughts, print out a Miranda response card, which can be handed to an officer instead of orally invoking your rights, and can be found on my Law Office’s Facebook page at the following address: https://www.facebook.com/LawOfficeOfScottCThomas/photos/pb.461049553942194.-2207520000.1397161497./632745423439272/?type=3&theater

Lastly, and most importantly, my advice is to not break the law.  Period.  That being said, be safe out there, stay hydrated, and have (legal) fun!

 

Marijuana and California DUI Law

handcuffs-marijuanaAB 2500, authored by California State Assemblyman Jim Frazier, is a proposed amendment to California’s DUI statute, Vehicle Code § 23152, et. seq.  The bill proposes the addition of a new “f” count, which states, “It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”  What does this mean?  Essentially, it would be unlawful to drive a vehicle in California with any detectable amount of THC, or any of the other enumerated substances, regardless of whether or not it is psychoactive. 

With regard to marijuana, this proposed amendment becomes particularly problematic.  Most drugs, like cocaine and methamphetamine, are water soluble, and stay in a person’s system for a couple days. Marijuana, on the other hand, is fat soluble, and can stay in a person’s system from a couple days, to up to three months, and in some cases, beyond.  Weight, body fat, amount consumed, and in particular, the frequency of usage, all determine how long a person will test positive for marijuana.

The issue with this proposed amendment is that there is no rational nexus between trying to prevent impaired driving and punishing drivers who are completely sober, but may have used a substance within the past couple days, or worse, the past couple months, and test positive on a drug test.  At its core, it seems as though this proposed amendment seeks to punish those who use marijuana and other substances, under the guise of preventing driving under the influence. 

This is especially disconcerting when you take into account that Vehicle Code § 23152(e) provides that, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”  Here, the law makes sense because we are punishing drivers who drove “under the influence of any drug,” not drivers who tested positive for a drug.

Although this bill has not yet been passed, it illustrates an alarming trend in perverting the purported purpose of a law, to target specific groups of people. 

Vehicle Searches

policenightsearchI know I have touched on this issue before in previous blog posts, but the one questions clients and friends always ask me is “Do I have to let the police search my car when they ask?”  The simple answer is a resounding NO!

Even during vehicle stops for minor traffic violations, it is not uncommon for officers to ask the stopped motorist for permission to search their car.  Why do they do this?  Well, it really comes down to the shift from American Law Enforcement being “peace officers,” and transitioning into “police officers.”  The change may seem to be nothing more than semantics, but in practce, the consequences are far reaching.  Instead of being tasked with maintianing public order (i.e. peace officer), police now actively seek out crimes for the sake of seeking out crimes.  That is to say, any opportunity a police officer has to look for criminal conduct, they will seize upon it. 

Going back to the vehicle stop for a traffic violation, this trend is put into sharp focus.  Instead of merely citing the offender and letting him or her go on their way, police officers use the traffic violation as a means of “getting their foot in the front door” for further investigation of any unrelated criminal conduct. 

Most people, when confronted by a police officer who wishes to search their car, bow to the power of the badge and aquiece for a multitude of reasons; maybe they have nothing to hide but are intimidated by the badge, or maybe they have something to hide and think cooperation will be their ticket to freedom, or maybe they just don’t know their rights.  In any case, there is no reason to ever say yes to a police officer who wishes to search your car.

I say this because, regardless of your answer, if the police have probable cause to search your vehicle, they are going to search your vehicle.  End of story.  This is why it is smart to refuse consent to search; if the cops are asking for your consent, they probably do not have probable cause to search your car, and are using intimidation or coercion to gain consent.  Remember, it is perfectly legal to refuse an officer’s request to search your car.

I hope this helps to flesh out this issue, and remember, the best answer, when a cop asks to search you or your vehicle, is NO!

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