Recent FBI reports indicate that nationwide, drugs and drug-related crimes account for approximately one-third of all arrests. California has led the nation in arrests for simple possession of controlled substance (illegal drugs). The California Department of Correction statistics affirm that drug or drug related crimes continue to account for high percentage of the offenses committed by the confined inmates.
In recent years, certain drugs have emerged and very popular among teens and young adults at clubs or “raves.” These drugs, collectively defines as “club drugs,” include MDMA/Ecstasy, Rohypnol, GHB, and Ketamine. The tasteless and odorless depressants Rohypnol and GHB are often used in commission of sexual assaults due to their ability to sedate and intoxicate unsuspecting victims.
Cases involving drugs give rise to many issues, and many possible defenses and ultimate results may vary greatly. Punishments for drug convictions are very broad. Arrest on a drug charge may subject your property to forfeiture, may require you to register with the police as a narcotics offender, adversely affect your driver’s license and subject you to jail or prison. It is also not rare that a drug charge may be filed with other charges such as Child Endangerment (if a minor is at or near the scene) and has serious consequences for child custody and immigration status.
Most drug offenses in California are now felonies. It is still a misdemeanor to possess less than an ounce of marijuana. However, possession for even the smallest amount of cocaine is a felony. The penalties for drug crimes can be very severe. The charges are based upon quantity, intent to sell or distribute and other factors such as weapons possession or use, evidence of sales activity, having large amounts of money, etc. The seriousness and ultimate punishment for drug crimes normally depends upon the quantity of the drug, the classification under the drug schedule, and the purpose of the possession (for personal use or for sale).
Recent passages of California’s Proposition 215 – which legalized medical marijuana and Proposition 36, a ballot initiative that sends drug offenders to treatment instead of prison – has great potential for treating abusers of drugs rather than simply sending them to jail.
In 1996, the California voters enacted The Compassionate Use Act (California Health & Safety Code, Section 11362.51), which amended state law to allow legal access to marijuana when recommended or approved by a physician. The governing principle is that the individual must prove use, possession and/or cultivation are for medical needs. This law protects patients and their primary caregivers from criminal conviction. It does not however, protect persons engaging in conduct that endanger others nor does it allow the use of marijuana for non-medical purposes. As you may already know, this law only protects very few people.
The law that took effect on July 1, 2001, Proposition 36, the “Substance Abuse and Crime Prevention Act of 2000” is more relevant to broader range of individuals. These are persons who have been convicted of a “nonviolent drug possession offense. They must receive probation and diversion into a drug treatment program. This is not available to individuals accused of sale or manufacture of drugs, or has been convicted of one or more serious or violent felonies.
In many counties in California, there is also “Drug Court” which is responsible for the close supervision of select felony and misdemeanor cases involving non-violent drug offenders. Again, this would exclude drug users who have prior convictions of serious crimes and mainly provides heavy addicts an opportunity to be rehabilitated. Both Proposition 36 and Drug Court are diversion programs which upon successful completion entitles the individual a dismissal at the end of the program.
Many readers who followed Nora Aunor’s arrest in 2005 for possession of methamphetamine and a glass pipe at Los Angeles International Airport may be familiar with drug diversion programs. By entering a plea of guilty on March 29, 2006, Ms. Aunor was subsequently placed on a drug diversion program called Deferred Entry of Judgment (DEJ). A plea is entered but sentence is deferred for a period of time. If the individual is diligent in fulfilling all the requirements and testing “clean,” the program generally lasts six months. Upon successful completion, the case in its entirety shall be dismissed by the court.
However, if the individual fails DEJ, the court with the DA’s consent, may place the individual on Proposition 36 which requires a greater supervision by both the court and the Probation Department. If the individual still fails to successfully complete Proposition 36, the judge may sentence the person to state prison.
But how about those convicted of sales, transportation, manufacture, conspiracy to manufacture or sell? For the drug offenses that are not a “simple possession,” diversion programs are not available. However, review of the case may bring forth a valid defense of a violation of one’s Fourth Amendment rights against improper search and seizure.
This right guarantees against searches or seizures without a warrant or probable cause. Illegally-seized evidence must be suppressed and excluded in the criminal prosecution. If this occurs, it is very likely that without the seized drugs as evidence, the case will be dismissed.
If the case is not dismissed for Fourth Amendment violations, alternative sentencing should be explored by your criminal defense attorney. The lesson is that when you when you are arrested for any drug offense, do not immediately plead guilty to the charge, there are many options that should be explored. It is very common for me to talk to prosecutor’s supervisors to see if I can get the best deal for my client.