California Court Limits Scope Of Medical Marijuana Laws

With the passage of the marijuana compassionate use laws several years ago there has been a plethora of legal cases defining how far reaching the statute applies to criminal and DUI marijuana offenses, this cases limits the ability of growers and distributors inasmuch as the person cannot simply cultivate and thereafter sell limitless amount of pot with legal immunity.

In People vs. Mitchell, The defendant formed a non-profit corporation to cultivate marijuana and projected being paid as much as 60k annually for the marijuana. He then entered into two contracts to grow marijuana every month and sell it to a for-profit corporation, the K.I.M. Collective, that operated a medical marijuana collective of which he was personally a member. Police discovered his extensive marijuana growing facility and he was convicted of marijuana cultivation (Health & Saf. Code, § 11358). On appeal, he contended that he was entitled to the protections of Health and Safety Code section 11362.775 of the MMPA. Held: Affirmed. Section 11362.775 provides that specified persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject" to certain criminal sanctions, including section 11358. However, no individual or group may cultivate medical marijuana for profit. 

In this case, the defendant was not convicted solely because of his collective or cooperative marijuana cultivation. He admitted that he intended to gain tens of thousands of dollars from his cultivation operation, expected to live off the income, and expected to be compensated for his expenses. He entered into contracts to provide marijuana to a for-profit corporation and his own corporation had no relationship with the K.I.M. Collective other than as a supplier of marijuana. Additionally, the other principal defenses available under the medical marijuana laws do not apply to the accused because the amount of marijuana he possessed exceeded the amount reasonably necessary for appellant's personal use, there was no evidence he was a primary caregiver, and the defense related to compensation for actual expenses does not apply to violations of section 11358. Thanks to (CCAP)

Torrance DUI Attorney Matthew Ruff: Weekly Case Review

The issue of what constitutes a violation of the right of confrontation in both DUI and criminal cases has been a hot topic in the last few years.  The US Supreme Court has handed down no less than 2 major cases on the issue in the last few years and the California Courts are nearly tripling that number.  At its core, the right guarantees us all from a witness testifying against us without then in Court with the ability to cross examine them.  This recent case examines that right within the context of a drug and gang case.

In People v. Archuleta, A jury convicted the accused of possession of methamphetamine and active gang participation. Police officers received information that a homicide suspect could be found at appellant's residence. At the residence, they found appellant and another suspect in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution's gang expert, a sheriff's deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert's testimony violated appellant's Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination. 

The Justices opined that the question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez's out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert's opinion, violated appellant's Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement. 

What this effectively means is that although the Court found the evidence inadmissible, they still believed that there was enough evidence to uphold the conviction.  This case sheds additional light on this crucial right.  There are other cases within the DUI context that disallow an expert to testify about blood tests without being present in Court and available for cross examnation.

DNA alone not enough to convict for a crime in California

The science in criminal and DUI cases has risen to a level of CSI proportions.  Courts have been very lenient in allowing people to be convicted based on scant scientific evidence.  Here, the courts draw the line.  The defendant herein was convicted of several crimes based solely on his DNA.  Here are the facts:  The owner of a nail salon discovered a window in the front door of his business had been broken and the store burglarized. Investigating officers swabbed for DNA evidence at the crime scene. One item tested was a palm-sized rock found inside the business. DNA from the rock was matched to appellant, who was convicted of second degree burglary. On appeal he challenged the sufficiency of the evidence. 
The appeals court threw the case out and reversed the conviction, exonerating the accused.   No evidence other than appellant's DNA on the rock tied appellant to the crime. The court noted this is "a case where the only evidence inculpating the defendant to the crime is the defendant's DNA." Relying on fingerprint-only cases, the Court of Appeal stated the issue is whether a trier of fact could reasonably conclude that "contact with an object could not have occurred other than in connection with the crime." The evidence in the trial court showed the rock was located inside the business underneath one of the nail stations, and contained appellant's DNA. There was no evidence regarding the origin of the rock and the evidence regarding its relationship to the crime was weak. The DNA expert could not say how long the DNA had been on the rock. Without evidence showing when and where appellant came in contact with the rock, the factfinder could not rely on the rock alone to convict him.  (CCAP).

California Appeals Court Upholds Red Light Camera Case

There has been a litany of cases recently by attorneys seeking to overturn the red light camera ticket laws in California.  From whether the evidence is admissible on hearsay grounds to the issue of the right to cross examine, the courts have painstakingly hashed through the legal morass to give some guidance in the area.  This case deals with yet another issue pertaining to these violations.

Vehicle Code section 21453, subdivision (a) allows a city to install automated traffic enforcement systems at intersections that will photograph a driver who fails to comply with the traffic signal. Section 21455.5, subdivision (b) requires the city to make a public announcement of the system at least 30 days prior to the commencement of the enforcement program, and to only issue warnings to violators for the first 30 days. In June 2006, Culver City installed a system at an intersection without complying with the public announcement or 30-day warning period. Two years later, the system photographed appellant as he drove through a red light, and a citation was issued. Applying rules of statutory construction, the court agreed with appellant's argument that the word "system" in section 21455.5 refers to the camera at a particular intersection rather than the entire city-wide red light camera enforcement program. Thus, for each new camera installed at an intersection, there must be compliance with the public announcement and 30-day warning period. However, these requirements are for the benefit of those violators within the initial 30 days after the system is activated and are not a jurisdictional prerequisite to enforcement of the red light traffic law. Thus, appellant's conviction for a red light violation two years after the system was installed was valid. (CCAP).

Matthew Ruff is a Culver City DUI Attorney with nearly 20 years experience in criminal defense.  His articles address the ever changing world of criminal law in the state.

California Court Clarifies Driving While Texting Law

Recently, the California lawmakers made it illegal to text and drive.  Many DUI drivers violate this statute.  The law was instantly applauded by safety groups as innovative and necessary in the age of technology .  But what about those drivers that use their devices for looking at maps?  The law seemed to apply to those drivers, not so says a Central Valley appellate court.  In this case a CHP officer cited The driver for prohibited use of a wireless telephone while driving after the officer saw him check a traffic map on his phone. (Veh. Code, § 23123, subd. (a).) driver claimed he was not "using" the phone within the meaning of the statute. 

The defendant appealed the ruling by the trial judge and the appeals court overturned the conviction. Section 23123, subdivision (a) prohibits a driver from using a wireless telephone unless it is configured for hands-free "listening and talking" and is used in that manner while driving. Based on the wording of the statute, it does not require that the phone be used in a manner that allows for "hands-free looking," or "hands-free operation." The legislative history of the law reflects it was focused on prohibiting a driver from holding a wireless telephone while conversing on it. This interpretation is supported by subsequent laws, such as section Vehicle Code 23123.5, which prohibit texting while driving, as they would not have been necessary if section 23123 applied to all non-hands-free "uses" of wireless telephones while driving. (Thanks to CCAP).

This statute will likely be used often in the context of DUI enforcement.  Indeed, in one recent case,  Torrance DUI Attorney Matthew Ruff represented a motorist that was pulled over for this reason, we took the case to trial and the driver was acquitted.  Time will tell how police apply the law to those seen staring at there phone while driving.

DMV Appeal For DUI Suspension

The law in California allows a person to appeal an adverse DMV decision for APS hearings.  The technical name for the appeal is called a departmental review.  Thousands of hearings are conducted every month throughout the state for driving above a .08 or refusal to submit to a chemical test such as blood of breath.  The consensus among attorneys handling these types of cases is that the odds are generally against the licensee.  With that being said, there are instances when the DMV takes away someone's driving privilege without a sufficient legal basis and it is in these cases when an appeal is appropriate.

The framework of an administrative hearing, commonly referred to as an APS, is quite complex and not easy to understand from the lay men's perspective.  For starters, the same person that is assigned to be the judge is also appointed as the prosecutor and jury, for lack of a better word.  This inherent conflict gives rise to many bad decisions that are influenced by a lack of objectivity.  Many would argue that the system needs to be revamped to allow a neutral fact finder to oversee the proceedings, but these attempts have all been shot down by the Department.

So, back to the topic of an administrative appeal.  First, the review itself must be requested within 14 days of the final decision by the hearing officer.  Failure to comply with this time deadline is fatal to the appeal.  Second, the cost to file an appeal of a APS decision is $120.  This fee is non refundable even if the appeal goes in the drivers favor.  Once the review is filed it often takes several weeks to complete.  The file is sent to Sacramento along with a copy of the tape recorded hearing.

Any administrative reviews are denied, the DMV will not allow for new evidence or witnesses to be presented.  The evidence that was submitted at the hearing is what is considered, period.  For hearings held in El Segundo California, the process usually takes a couple weeks and the drivers license suspension will not be stayed pending the review .

I hope this article is helpful to those considering filing a appeal for a license suspension for DUI, driving with a .08 or higher and refusal cases.

California Courts Rule A Motor Home Is Not A House For Arson Crime

Many decisions have come down in the Torrance Court concluding that a motor home is the same as a house for many purposes, such as whether the police are required to obtain a search warrant prior to entry, for example.  In this recent case, the California appeals court went the other way.  Though this case has little to do with DUI, the principles set forth are interesting and could come into play within the context of drunk driving cases involving motor homes.

Here are the facts: Following an argument with his girlfriend, defendant used a vehicle to push an inoperable motor home next to the one in which he was living and in which his girlfriend was sleeping. He then set fire to it. The girlfriend escaped, but the fire spread to the home in which she had been sleeping, destroying both. A jury found defendant guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b) and was sentenced to 25 years to life under "Three Strikes." 

I his appeal, the defendant contended that the evidence was insufficient to show that the motor home in which he and girlfriend were then living was a "structure." The appellate court agreed and reversed. The motor home at issue is not a structure as that term is defined in the arson statutes. The court also held that because the only other crime on which the trial court instructed was arson of property, which is not a lesser included offense, the court could not exercise its authority under section 1181, subdivision 6, to reduce the conviction to that offense. Further, remand and a subsequent trial would constitute a new prosecution of the defendant based on the same evidence to prosecute the original charge, and is therefore prohibited. The District Attorney failed to prove its case against the accused offender, and the only option is reversal with instructions to the trial court to dismiss the charges. (Courtesy CCAP)

The DA now has a decision to make.  He can dismiss the charge and close the case.  He can proceed on a different theory of a crime or strike a deal for a lesses offense.