Law Offices of Kenneth T Holder
CRIMINAL LAW
Drug Related Crimes
Drug related crimes can be catogorized into three Health and Safety Code Sections, depending on the type of controlled substance obtained.
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Do You Need a Lawyer?
It’s unfortunate, but too many attorneys treat their practice as a business and less like the profession our law office believes it should be. To make matters worse, there are many occasions where paying an attorney thousands of dollars is unnecessary, but because of the sales and fear tactics employed by an attorney consultation; many clients retain an attorney needlessly and become locked into a non-refundable retainer where very little representation (if any) by the attorney is rendered. Our office is committed to not engage in this type of practice. When we offer you a free consultation, you are guaranteed to become a well-informed client, confident that you are making the right decision as to whether you need to hire an attorney and making sure that you are hiring the right attorney who will give you the type of representation you were told you would receive.
Drug Related Offenses
In most cases, if you are arrested for possession of a controlled substance, you may be charged with Health and Safety Code Sections 11350, 11357, or 11377 depending upon what type of controlled substance you have. The quantity of the controlled substance also affects the severity of the charge and the punishment. These charges can be filed as either a misdemeanor or a felony and it’s important for defendants to understand that there is a possible sentence of 1 year in a county jail if filed as a misdemeanor, while there is a possible sentence for up to three years in state prison if filed as a felony. In several cases where criminal defendants were charged with less than 1 ounce of marijuana (Penal Code §11357), Ken Holder was able to avoid the clients from having a misdemeanor criminal record altogether by merely paying a fine. Even more important, the first task Ken looks to regarding any drug charge is the actions of law enforcement in accosting you in the first place. California law enforcement is notorious for “pushing the envelope” of our citizens’ 4th Amendment Constitutional rights (i.e. illegal searches).
Analyzing and understanding your case.
Although it may take some time and patience on your part, you can review the Penal Code yourself on-line and learn the requirements that must be met in order to prosecute and the penalties that could result if a prosecution against you is successful.
NOTE: Need to insert a link to the Penal Code at www.leginfo.ca.gov
Once you have studied the elements of your case, you still should follow through with an attorney consultation. The reason is that despite the penalties and punishments you discover in your research, there are many alternatives, which the California Penal Code does not discuss and that you may not be aware of. Even more important, one of our attorneys can make the legal language in the Penal Code easier for you to understand. Our office is committed to constantly explore all of the alternatives and options for our clients. If you have a case that is likely to turn against you, then it is our commitment to ensure that you do not suffer needless penalties or time in custody by what has increasingly become an uncaring and overreaching judicial process that often overlooks factors that can minimize a punishment against you. Not all cases go to trial and most probably should not. With you as an active participant in your own defense, we can ensure that your facts are reviewed in detail, brought to light in the courtroom, and given proper weight in our pretrial conversations with the prosecutors
Selecting your Attorney.
Your objective in hiring an attorney to get the best possible outcome for your legal matter. It is a well-known adage that “you get what you pay for”. In other words, if you have a “free” attorney representing you, then be prepared to get a result that is indicative of very little, if any, effort on your behalf. Similarly, if you hire a tax attorney or a worker’s compensation attorney to represent you in your criminal case, be prepared to get a result from an attorney who has no experience in dealing with the criminal courts system. If it helps to clear up the dilemma, you can imagine the outcome of a foot specialist doctor performing open-heart surgery on a patient. The outcome is highly unlikely to end very well for the patient. When you are discussing your case over the phone with an attorney, look for the following warning signs:
The initial phone call:
- Is the attorney going through the facts of your case so that he clearly understands them; or is he simply glossing over the facts, trying to end the call quickly, and pressing you to come into the office? This is indicative of an attorney who is focused more on treating his practice as a “business” and less likely as a “profession”.
- Is the attorney willing to discuss fees with you frankly; or is he vague as to how much your case is going to cost you? Since criminal cases are typically based upon a flat-fee structure, an experienced criminal attorney should be able to provide you a fairly close idea of the legal costs you are likely to incur.
Getting the “biggest bang for your buck”.
- The experience level of your attorney can often be a “double-edged sword”. On one hand, an experienced attorney has a lengthy association with the law and is probably familiar with the court personnel, the courts themselves, and often has a good grasp of the likely outcome, even before your first court date.
- However, this experience and familiarity with the likelihood of the outcome can limit an experienced attorney’s devotion to your case to where he may simply pursue the same outcome as he did with all similar clients that came before you. This can often prevent the attorney from looking into the details of your case that might make a result more favorable in our matter.
The fact is: Very quickly, even new criminal attorneys can be brought up to the familiarity levels required in criminal courts. One reason is because BY LAW, they are obligated to do so. Oftentimes, however, less experienced attorneys are not so jaded by the system and are willing to look beyond the closed box in which more experienced attorneys operate. This can be an important factor in deciding to hire the commitment level of a lesser inexperienced attorney who will go “all out” to avoid his client doing jail time vs. hiring a more experienced attorney who simply conducts business as usual.
About: Possession of a Controlled Substance
Health and Safety Code Sections 11350 – 11382.5
In order to convict a defendant of a possession drug offense, the prosecuting attorney must prove:
- An accused person exercised control over (or the right to control) an amount of a controlled substance;
- The accused knew of its presence;
- The accused knew the nature of the controlled substance; and
- The substance was in an amount sufficient to be used as a controlled substance.
Note that the accused person does not have to have the actual controlled substance on his person. It is sufficient for the accused to have “control” over the substance or the right to exercise control. The law treats this as a constructive possession and it is just as viable a theory as if the accused person had actual possession.
About: Possession of a Controlled Substance for Sale
Health and Safety Code Sections 11350 – 11382.5
In order to convict a defendant of a possession drug offense, the prosecuting attorney must prove:
- An accused person exercised control over (or purchased) an amount of a controlled substance;
- The accused knew of its presence;
- The accused knew the nature of the controlled substance;
- The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and
- The accused possessed or purchased the controlled substance with the specific intent to sell it. *
*For instance, quantities that are often an amount sufficient for sales often lead the District Attorney’s office to file sales charges regardless of whether the defendant ever, in fact, intended to sell. Even if you are charged with a felony, there is a possibility that you may be able to avoid serving time in custody. With these types of cases, it is perhaps more important than with other types of crimes that you get quality representation very early on. Ken Holder can then work with the prosecution to establish factors, which may tend to negate the sales nature of the charge and preclude a harsher punishment against you than is necessary.
About: Drug Diversion Programs
Health and Safety Code Sections 11350 – 11382.5
Many possession offenders with little or no prior criminal history can avoid a conviction by making a pre-guilty plea under Penal Code Section 1000. Upon a successful completion of PC 1000, the offense is dismissed and therefore, our clients are able to keep their criminal records clean. Even if you are ineligible for PC1000, a drug diversion program such as Prop 36 (Penal Code §1210) can still result in no jail time; and the charges can be expunged from their record after two years under Health and Safety Code Sections 11361.5 and 11361.7 .