Category Archives: Drug Crimes

“Weed” at Coachella Fest

Forest was quoted in an article about “weed” at Coachella Fest:

. . . Attorney Forest Wilkerson gives some insight for having drugs inside the gates. She denounces the notion that asking “Are you a cop?” will force an admission from narcs. Indeed, undercover police can appear in all forms; even a sexy rave kitty could be doing the government’s work. To be safe, only talk about and do drugs with people that you know personally.

If charged, it’s relevant to be aware of different severities. “Simple possession” implies that the drug quantity was for personal use. This charge usually allows for a drug program and eventual dismissal.

“Possession for sales” is a different animal; selling a controlled substance is a non-reducible charge that carries jail time. Law enforcement looks for these things when deciding which charge to make:

– quantity of the drug

– separate versus individual packaging

– large quantities of cash

– multiple cell phones

– written or digital records of sales

If you do get charged, say nothing. Criminal law is the art of manipulating the notion of justice. With such high stakes, always have a lawyer!

Do I Need an Attorney on My Misdemeanor Case?

It is becoming much more common that people who are charged with a misdemeanor simply go to court and plead guilty at their arraignment, without ever speaking to an attorney.  The judge will sometimes convey the prosecutor’s offer, or will tell the defendant what the sentence will be if they plead guilty, and the defendant will simply accept the consequences. Any attorney will strongly discourage this practice because ANY criminal conviction can have extraordinary consequences that may not be immediately known without further information.  While pleading guilty may seem easier and more convenient than hiring an attorney, it can later lead to extreme inconvenience and loss of a professional license or a job.

Consider this example – a resident alien is driving under the influence of both alcohol and Vicodin.  A plea to driving under the influence of drugs has severe immigration consequences, whereas a plea to driving under the influence of alcohol does not.  The defense attorney will structure the plea to avoid immigration consequences.  The direct penalties will be the same, but the defendant will not be deported later.  Another example is vandalism – a charge of vandalism will result in a driver’s license suspension if the defendant is under age 25. This is only the beginning of a non-exhaustive list of possible “collateral consequences” of misdemeanor convictions: loss of professional license, loss of driver’s license, bar to military service, loss of right to own or possess guns, deportation, or a bar to receiving student loans.

Good attorneys will be able to talk to you about your job, your background, and your life plans in order to figure out the best result in your case.

Some people go to court and plead guilty because they feel they did the crime and it is best to just face the consequences.  A person should read the charges carefully and at least consult with an attorney (usually office or phone consultations are free) before simply accepting guilt.  Many prosecutors will file cases alleging the most serious possible charges even where there is only a slight possibility that the defendant would be found guilty of the most serious charge.  Take this simple example, a person may be charged with battery where they are only factually guilty of fighting in public.  The person who goes to court and pleads guilty to battery, failing to ask for the lesser charge, will lose the right to own guns.  Another common issue is the per se driving under the influence violations, also known as driving with a blood alcohol content of .08 or higher.  Most non-lawyers will not know how to evaluate evidence that they had .08 blood-alcohol content and that this level could (and should) be challenged at trial. To know how to properly evaluate evidence and the science behind the evidence, the accused needs to have experience reviewing results and familiarity with the (in)accuracy of the science behind it to understand when the results will be upheld as valid.

The issues raised above are simply the most common evidentiary issues that are overlooked by individuals who do not have an attorney.  This list does not include legal errors where accused individuals plead guilty, but otherwise would had charges dismissed because, for example, their speedy trial right or 4th Amendment rights were violated.  When you or someone you love is facing what seem like insignificant charges, consult with an attorney before making a decision that can have extraordinary collateral consequences for you in the future.

Drug Addiction in the Justice System

Unfortunately, drug and alcohol addiction touches the lives of almost everybody at some point.  Drug abuse and addiction is one of the main factors that gets people in legal trouble and destroys family relationships.

Fortunately, the California legislature, the voters, and the courts have made good progress in the last decade at recognizing the link between crime and drug use and now offer some programs for people struggling with addiction.  People arrested for possession of drugs for personal use will generally be allowed to complete a basic drug program for their first couple cases.

More complicated situations arise where an addict has been stealing or selling drugs to support the habit.  Depending on the individual, they may be sentenced to complete a drug rehabilitation program that will often include 90 days to 1 year of intensive work examining their life, accepting that their drug use is a problem, talking about the pain they have caused others, and getting to the root of the cause of their reliance on drugs.  Rehabilitation is not a “free lunch”, which can be the public perception, but is incredibly difficult.

An even more difficult issue is where a person has attempted to hide or deal with mental health issues by using drugs. Many families are torn apart by family members who have this “dual-diagnosis” because the addict family member can lack insight into their addiction due to their mental illness. Alternatively, the addiction can keep the individual from having insight into their mental illness. Sadly, individuals in this position are often rejected from both mental health courts and drug courts because the players in those courts believe that they can not treat both issues at once, and feel the individual will not be successful. So these most needy people are rejected from the very treatment that they need the most.

If you have a family member who is addicted to drugs, get them help immediately before they end up in legal trouble. Beginning with AA or NA meetings, or an intervention (there are amazing interventionists available to help) is the beginning of the road to success. Rehabilitation centers are also amazing in helping people to overcome addiction and place the addict in a place where they are helped in their recovery by professionals. The best rehab centers are expensive, but there are several competent local rehab facilities that have charity beds and provide essentially the same service in much more humble surroundings.

If your loved one does end up in legal trouble, it is imperative to get an attorney to help through the process. There are many collateral consequences to a drug conviction, and even drug diversion, that are not generally known, such as the denial of federal student loans or deportation. Getting a dedicated and knowledgeable attorney involved early in the process can help you to find proper rehabilitation services to present the best case possible when appearing in court. In addition to helping address the addiction problems immediately, when a person is pursuing rehabilitation, most judges will be at least hesitant to hand down a prison sentence that pulls him or her out of the program.

If you or somebody you love is an addict facing charges, treat this event as a wake-up call, get into treatment, and use it as an opportunity to turn a troubled life around.

Much Needed Revision Possibly Coming to “Transportation” Drug Law

California Health and Safety Codes 11352 and 11379 prohibit “transportation” of controlled substances (most importantly, cocaine, heroin, and methamphetamine), and provide for more prison time than simple possession of the drugs, .  The legislature never gave a specific meaning for “transportation”, though reasonable and rational people can infer that the enhance penalties provided by the statute should only be applied to defendants actually trafficking in drugs and transporting drugs with the intent to sell them.  So a particularly cruel and idiotic string of court decisions has held that anybody simply moving any quantity of drugs for any reason is guilty of “transportation”.  (See, e.g. People v. Ormiston (2003) 105 Cal.App.4th 676.  This case approves a transportation conviction for a defendant who had drugs on him while walking across a parking lot.  Ormiston also gives an excellent summary of the case law).

These statutes are particular favorites for bullying prosecutors who want to pointlessly lock drug offenders up longer or want to arbitrarily exclude defendants from drug treatment programs – no treatment programs for anybody charged with transportation.  I have personally represented dozens (hundreds?) of defendants charged with transportation for having small quantities of drugs in their car or in their pocket while riding a bicycle.

AB 721 provide a little sensible reform, allowing prosecutors to only charge transportation when the narcotics are actually intended for sale.  The bill has been approved by the legislator and is heading to Governor Brown’s desk now.

Doing drugs at the Coachella Music Festival

If you are determined to do drugs at Coachella, here are some tips to be smart about it.  Coachella is crawling with undercover cops, and a felony arrest is the worst way to end your vacation.  The law is very different for marijuana and other drugs, so I will address the issues relating to their use and sales separately:

1) Medical Marijuana

Marijuana is not legal in California.  If you are a California resident with a valid prescription  you may possess an amount of marijuana appropriate to your medical needs (don’t expect to get caught will a pound of bud in your backpack and avoid arrest because you have a card).  Prescriptions from other states are also probably not valid.

2) Strictly Recreational Marijuana

Possession of less than one ounce of marijuana is an infraction, not a criminal offense.  This means that if you are caught with less than an ounce, the police will just take your bud and issue you a ticket – similar to j-walking.  A fine of a few hundred dollars is the highest penalty, and the ticket can be contested in traffic court, but there is no right to a jury trial.  Possession of more than one ounce is a misdemeanor and can result in arrest, jail, and expensive fines.

Most troubling marijuana cases involve sales, possession for sales, or furnishing.  A guy who shares his marijuana with another person is furnishing drugs, and is technically guilty of a felony.  A person who gives his last joint to an undercover cop who repeatedly asks, even begs, for the joint will be arrested and charged with sales, especially if the person reluctantly accepts a $10 “donation” for the joint.

 3) Meth, Cocaine, Ecstasy, and LSD

Possession of any of these drugs will result in arrest and a felony charge, including possible jail time.  That said, there is a vast difference between simple possession (for personal use only) and possession for sale or actual sales.

When a person is charged with simple possession (personal use), they will typically be permitted to complete a drug program and have their case dismissed.  People with extensive criminal records, especially “strikes” are sometimes excluded.  Also, be warned that such charges may result in ineligibility for student financial aid and deportation for non-citizens.

Sales and possession for sales are completely different.  Sales charges are non-reducible felonies and will typically involve real jail time.  Police will look for a combination of factors when determining whether to charge for possession for sales or simple possession: 1) larger quantities of the drug; 2) separate or individual packaging; 3) large quantities of cash indicate sales; 4) multiple cell phones; and 5) written notes keeping track of drug sales.  If you don’t want to be charged with sales, avoid any of these indicators.

4) Urban Legends (“Are you a cop?” and Entrapment)

It seems to be a typical piece of street wisdom among drug dealers and prostitutes that cops cannot lie to you if you ask directly before selling to them, “are you a cop?”  This is complete nonsense.  If you ask the undercover cop if he is a cop, he will tell you “no”, then buy drugs from you and arrest you.  Police can and do lie to suspects.  It is part of typical police technique and training.

Entrapment is also another common complaint coming from people who inadvertently sold drugs at the Coachella Music Festival.  Suppose an undercover cop in tiny shorts and a bikini top flirts with you and asks ten times for a hit of X, so you go score some X for her from a friend of a friend you know is also at the concert.  You will be charged with sales.  You may possibly have an entrapment defense at trial, and it could work.  But that won’t prevent you arrest, charging, and being brought to trial.  Entrapment really amounts to a complicated legal defense at trial.  The police can and will entrap you.  Be prepared for a large investment of time and money getting your case in front of a jury.

5) How to Spot an Undercover Cop or Police Informant

Don’t even try, you can’t.  The informant may be a sexy girl in a bikini (this is documented and very true) or a convincing stoner.  Don’t give drugs to anybody you don’t know!

6) What do I do if I am Arrested?

Don’t make any statements to the police.  Tell them you need to speak with an attorney first.  Contact an experienced criminal defense attorney.

Check out this article if you are looking for tips on have a safe, legal, and fun time at Coachella!