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When the new year rang in California's recreational pot laws have taken affect.  California has broad new legalization of Marijuana for recreational use under new laws that take affect on the new year.  Remember California was the first state to legalize medicinal Marijurana use and the law was criticized for being under inclusive and abused at the same time.  The move came almost two decades after the State was the first to legalize medicinal Marijuana.  

California joins the state of Colorado and the District of Columbia in legalizing the recreational use of Marijuana.  

THE FEDERAL LAW STAYS THE SAME

There has not been a change in the status of Marijuana at the federal level.  In fact, the Federal government still clasifies Marijuana as a drug on the same level of PCP, LSD, and heroin. 

there will be an affect on the Calfornia economy as the tax revenue from the sales of Marijuana will probably exceed 1 Billion although those estimates have been disputed. 

 

THE NEW RULES

You must be 21 years or older and must buy from a licenses authorized dispensary.  in an earlier blog I went over some of those exact laws and limitations on this in my article on prop 64 and the changes and penalites etc.  

In some cities there will be confusion because you will not be able to find dispensaries open that are licensed and up and running.  That is because the licensing process for those buinses which can be difficult even for an experienced Attorney  to navigate are so onerous that locals cannot meet the requirements by the January 1 legalization date. local regulation will not be approved in time for the Jan 1 date.  This includes in larger cities such as Los Angeles and San Francisco. 

LOCALLY

In Fresno has banned the sale of recreational pot and it is unclear how they will handle people that decide to ignore this law. (I would not and am not advocate anyone ignore laws) I have seen people do this to face steep penalties and cost.  Also the source of the Marijuana must be legal again creating regulatory problems that must be cleared up and only time will tell how these problems are dealt with. 

If you have any question do not hesitate to call 559 441-1418. 

 

If you have been arrested or involved in a Domestic Violence situation it is imperative that you get legal advice as soon as possible.  Many times you will be arrested or questione and believe that you do not need the advice of an Attorney this is not true.  Domestic Violence cases are more involved than they appear. 

There is a misconception that if the alleged victim of domestic violence does not testify that somehow the case will be dismissed.  This may or may not be true and it depends upon the factual circumstances of the cases before the court.  

For example if there are independent witnesses to the alleged domestic violence incident, those witnesses can be called into court, and testify as to what they have witnessed.  

Also, any statements that the person alleged to have committed the domestic assault makes to law enforcement can be used agains the person that made the statement.  

Medical Records can be used to show there was an actuall injury and there could also be expert testimony.  

Has there been previous incidences of alleged domestic violence? if there has been previous incidences of domestic violence under some circumstances those can be 

As you can see it is very difficult to know exactly when a domestic violence case will be dismissed and depends on the factors listed above. 

 

If you have been arrested for domestic violence or a related charge.  You should call us immediately at 559441-1418.   When you are arrested for domestic violence you should know that even if it is a misdemeanor arrest the repurcutions could be big, including restraining orders, turning over guns, and you must be present at your court appearances even for a misdemeanor domestic violence case.  Usually, you can hire an Attorney to make all court appearances for you in a domestic violence case.  However, if you have been charged with domestic violence you must be personally present for your court appearances, at least the first court appearance.  Usually you will be served with a protective order at that appearance. 

As you can see you definitely need experienced legal counsel to help you through what could be a very difficult process.  

 

If you are charged with certain crimes or are the subject of a restraining order you will be probibited from owning or possessing firearms.  Pursuant to Penal Code section 29800, The California Department of Justice provides a form for individuals who are prohibited under the law from possessing firearms such as 1. any person who was convicted of a felony, a specified misdemanor, or a specific firearms offense.  2. Any person who is addicted to Narcotics; 3. any person who is the subject to a protective order; or 4. any person who was found bya  court or menatl health facility to have certain mental disabilities.  There is a list on the DOJ website of all people prohibited from owning or possessing firearms.  

The exact duration of the prohibitions vary and there could be subject to federal law which may or may not be more restrictive than the states restrictions.  

The prohibition against firearm possession is effective immediately upon the occurence of the prohibition even sucha s the date of the conviction or the date when a protective order is issued.  and that prohitbition requires immediate relinquishement of all firearms.  

There is a form that gives the person a power of Attorney over firearms The form helps people who are prohibited from owning firearms to transfer the firearms, relinquish or sell the firearms on behalf of the person so that the person prohibited from owning the firearm can sell or get rid of the firearms on behalf of the other person.  

This doesnt transfer ownership but instaed gives the other person the power to deal with the firearms.  

A person subject to a protective order (as defined in Family Code section 6218) is subject to special rules.

1.  Within 24 hours of being served wiht notice of the protective order, surrrender all firearms to the control of local law enforcement officials, or sell the firearms  to a local licesnsed gun dealer immediately or transfer to a licensed gun dealer.  and immediately surrender the gun to law enforcement officer upon the officers request.   Family code section 6389 sub c 2.

2.  Within 48 hours of recieving the order, provide proof to the court that issued the order that all firearms have been relinquished.  

if a person has a power of attorney for firearms relinquishment, sale or must relinquish the firearms to local law enforcement officials, or sell the firearms, to a licensed gun dealer on behalf of the gun owner within the times set forth above so that the gun owner is able to comply with the law.  

in other cases that do not involve a protective order but or a more specific court order the person with the power of attorney for firearm relinquishement, sale or disposal, must do one of the following: 

1. Take the firearm to a licnesed firearm dealer so that it can be sold or transferred.

2. Surrender the firearm to a California law enforcement agency so that it can be held for the purpose of safekeeping. 

3. Surrender the firearm to the California law enforcement agency for the purposes of destruction. 

4. Under no circumstances does the transfer to a power of Attorney allow the person to possess firearms past the 30 day period. 

special rules apply to assault weapons.  

If you have any more questions please call us 559-441-1418.

This article will be dealing with the extradition process for someone if they are considered a fugitive of justice.  If you are in a Calfornia Jail, either here in Fresno or somewhere else you should seek legal help immeditiately.  

There are strict timelines that must be adhered to in the processs. 

1st if there is a identification issue. There will be a hearing within 10 days to determine the identity of the person is the correct person.  In other words if the person is the person listed as the fugitive of Justice.  This can be done through fingerprints, photographs, or through circumstantial evidence, many times in court the tattoos and other identifying information will be looked at and booking photos etc. After that the state has 30 days to come pick up the person.  This time period can be longer if the Judge orders an additional 60 day hold. 

there are two types of extradition

1. Exradition From Calfornia 

2. Extradition to California.

 

For example extradition into California typically means you committed a crime in California and either fled the state or left while out on bail and you are picked up in another state. 

In the other situation you are being held in Calfornia for a crime that has allegedly been committed in another state and that state wants you back.  

 

If you hav committed a crime in California and flee to another state for example several steps will take place regarding the extradition.  

Before California will demand your return, it will weigh the time and expense of having you returned to California against the the severity of the crime alleged to have been committed.  

If California decides to extradite you they must 

1. Issue a proper demand for extradition

2. send and agent to pick up within 30 days.

3. bring you back to the state to 

answer charges 

be sentenced 

or be reincarcerated

If you are incarcerated here in California, it is required that California actually insures you are the person being sought before the extradition.  

there must be a proper demeand from the home state

an issuance of a governors warrant

conducting a probable cause / identification hearing to ensure you are not being falsely accused or improperly subject to extradition.

there are certain conditions when you can post bond

have the case resolved here while incarcerated in california 

or prove tha you are not the person being sought.

Sometimes clients will want to voluntarily surrender to the home state especially if the charges are serious and they are unikely to be bailed out pending the outcome of the case.  

If you have any questions let us know and give us a call 559-441-1418.

 

If you have been accused of a crime you should seek legal representation as soon as possible.  Many people come to my office and are unaware of where they are exactly in the legal system.  

Most of the time in California Courts at least you have the case negotiation, before the preliminary hearing and if the case settles than there is no need for a preliminary hearing. 

However, there is many different exceptions to that rule.  Many times there I have revcieved offers in the middle of a preliminary hearing.  And immediately after the preliminary hearing that are better than the last offer given depending on the circumstances and how things went during the preliminary hearing. 

WHAT IS A PRELIMINARY HEARING

A preliminary hearing is a probable cause determination.  Simetimes you will hear a Judge say reaonable probability to believe a crime was committed and this person committed the crime.  

This is inocmprehensible and basically means that there is probable cause to hold the defendant over for trial.  This means that the case will not be dismissed by the Judge. 

If the Judge dismisses the case the proseuction can refill one time and bring more evidence.  Or the prosecution can choose to bring the case to a grand jury for a determination of probable cause.  If the defendant loses he can bring what is called a 995 motion to have the decision of probable cause reavaluated by the same Judge that made the original determination.  This is often the case some Attorneys rarely file the 995 motions but some are granted. 

If you are doing a motion to suprress they must be heard befor the prelim usually scheduled on the same day.  You cannot argue the validity of a search during a prelim instead you should file the motion to suppress before the hearing. 

If you lose the motion to suppress you can file a appeal on just the issues pertaining to the motion to suppress.  

If you have any further questions you can give us a call at 559 441 1418. 

There are several changes that prop 64 made to the penalties for possession of Marijuana.  Most of these changes deal with adults, but also affect minors.  Or people under the age of 21.  

POSSESSION OF LESS THAN 28.5 GRAMS OF MARIJUANA

Over the age of 21 it is legal to posssess under 28.5 grams of marijuana.

if you are ages 18-20. It is an infraction with a $100.00 fine. 

if you are 18 than it is a misdemeanor max 6 months in jail and a $500.00 fine. 

POSSESSION OF CONCENTRATED CANNIBAS

Up to 8 grams is legal; more than 8 grams is a misdemeanor (max 6 months in jail and or $500.00 fine.) 

18 to 20 under 4 grams is an infraction with $100.00 fine ; more than 4 grams is a misdemeanor (max 6 months in jail and or $500.00 fine.) 

POSSESSION ON SCHOOL GROUNDS

1ST Offense misdemeanor max $250.00 fine.

2nd offense or subsequent offense misdemeanor max 10 days in jail and or $500.00 fine.

POSSESSION WITH INTENT TO SALE MARIJUANA 11359 

Misdemeanor max 6 month jail $500.00 fine.

if amount was under 28.5 grams and intent was to share, not sell it is legal per health and safety code section 11362.1

there is no charge for giving away marijuana to a person over the age of 21. 

 

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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