Jul 11, 2019
What are the Schedules for Drugs?
The Federal Controlled Substances Act (The Act) was passed in 1970 in response to growing public concern about drug abuse. The Act condensed a mishmash of prior laws under one law and created a classification system for controlled substances.
Congress expressed concern about the detrimental effect on the health and welfare of Americans when the drugs were used improperly.
How Does Drug Classification Work?
The Act created five categories of drugs and created a schedule based on two main factors:
- Whether there were legitimate medical uses for the drug that is necessary to provide for health and wellbeing
- The potential of the drug to have a detrimental effect on mental or physical health, including the potential for physical or psychological addiction
Other factors that are considered when a drug is classified include the history of the substance, including whether it has been abused in the past, scientific knowledge about the substance, the drug’s relationship to other controlled substances, and the potential effects on public health.
Schedule I drugs are considered the most harmful.
Which are Drug Schedules?
Controlled substances in this category have a high potential for abuse and no accepted medical uses. The potential for abuse is derived from a combination of the mood-altering effects of the drug and whether it is addictive. Examples of Schedule I drugs include heroin, LSD, marijuana, and some club drugs, such as ecstasy.
*Note that marijuana is now legal in California for both medical and recreational uses
Schedule II drugs are distinct from Schedule I drugs because they have accepted medical uses. However, they are considered dangerous as the result of their potential to cause addiction. The addiction can be physical or psychological. In some cases, it is not the presence of a specific drug, but the quantity of the drug in a prescribed medication that determines whether it is a Schedule II drug. For example, a drug with less than 15 milligrams of hydrocodone like Vicodin is a Schedule II drug. Examples of drugs in this category include cocaine, OxyCotin, Adderall, and Ritalin.
Drugs listed on Schedule III have, at most, moderate potential for addiction and may present a low likelihood of physical or psychological dependence. The dosage is a factor in determining whether a drug is a Schedule III drug. For example, Tylenol with codeine-containing less than 90 milligrams of codeine per dose is a Schedule III drug. Other drugs in this category include testosterone, anabolic steroids, and ketamine.
Medications in this category include mood-altering drugs with a low risk of dependence, milder pain relievers such as Tramadol, and treatments for insomnia like Ambien. Other Schedule IV drugs include Xanax, Darvon, Darvocet, Valium, Soma, Ativan, and Talwin.
Substances, chemicals, and drugs with the lowest risk of abuse and addiction are classified in Schedule V. While they may contain low dosages of narcotics, the doses are very small. They are most commonly used to treat common medical problems such as diarrhea, coughs, and congestion. Examples of Schedule V drugs include Robitussin AC, Lyrica, Logen, and Kapectolin. An alphabetic list of scheduled drugs is available.
Although The Act defines controlled substances as “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V,” an unlisted drug may be treated the same as a Schedule I or II drugs for purposes of prosecution when it meets the same criteria as listed drugs in those categories.
For example, designer drugs that mimic the effect of drugs in these classifications are not approved as legal medications in the United States.
Can a Drug be Rescheduled?
Drugs may be scheduled temporarily or permanently in a variety of ways. Congress always has the authority to add or remove drugs or change their classification. Congress delegated the authority to add drugs to the United States Attorney General when it passed the Comprehensive Crime Control Act of 1984, which gives the Attorney General the authority to temporarily add substances as Schedule I controlled substances when they pose “imminent hazards to public safety.”
When the Attorney General exercises this power:
- The substance immediately becomes subject to the registration and recordkeeping requirements required for Schedule I drugs.
- The drug will remain listed for two years with the potential of adding a 3rd year before the listing must be removed or made permanent.
- The creation of synthetic drugs made it necessary to create a way to quickly respond when new and potentially dangerous drugs are introduced.
Additionally, drugs may be moved from one category to another by either Congressional or administrative action by the Drug Enforcement Agency (DEA). This includes the ability to remove a drug from the schedule entirely. The classifications make specific drug offenses subject to mandatory minimum sentencing requirements.
Anyone facing drug charges should be familiar with the classification system and the recordkeeping and registration requirements to avoid criminal prosecution.
Jun 20, 2019
Part of the job of a law enforcement officer is to search for evidence of a crime, take that evidence for examination, then use it in a trial. This is called “search and seizure”. The Fourth Amendment of the U.S. Constitution and Article I, Section 13 California Constitution have laws against “unreasonable search and seizure”. The laws surrounding what makes a search reasonable or unreasonable are complex. We will explain them in this article.
What Makes A Search And Seizure Legal in California?
There are three components to look at. The first is whether or not the area searched is considered to be private by society. This is called “reasonable expectation of privacy.” Places like your home, your electronic devices, or even a hotel room or a tent fall into this category. But the abandoned property, like trash you’ve thrown out or something you threw out of a car, do not have this expectation and are fair game for search and seizure.
If it is private, the police may still search it if one of two things apply. The first is if they have a search warrant. The laws in California for search warrants can be found here. Police have to convince a judge that there may be evidence that a felony was committed. If the judge believes there is probable cause that this is true, they will write a warrant that gives the police the right to search that area for evidence related to that crime alone. The last thing to consider is whether the search would fall into one of the many exceptions to the warrant law.
These include things like:
- The owner of the property gave consent to a search.
- You’ve been arrested lawfully and the police want to safeguard evidence that might be destroyed.
- There is an immediate danger to life or property.
- An item is in plain view and obviously incriminating.
There are also specific exceptions for vehicles and electronic devices that are derived from these ideas.
Take vehicles, for instance:
- During temporary detention, an officer might believe you have access to a weapon or is otherwise dangerous. The police can search to preserve the safety of everyone.
- Your car is impounded after a legal arrest. Police can take the time to search that vehicle for evidence.
- A shakier reason is if the police believe they have probable cause that a vehicle contains evidence of a crime, like if they believe they smell alcohol or drugs.
For electronic devices:
- Police can access the device in an emergency situation or aid in pursuing a fleeing suspect.
- Police can also search devices when you’re crossing an international border if they have probable cause.
Note that police can still take an electronic device and hold it until they get a warrant for a legal search.
Remember if you give consent to the police for a search then any evidence they find is legal! It doesn’t matter if the area has a reasonable expectation of privacy. If you consent to a search, you waive your Fourth Amendment rights.
What Constitutes An Illegal Search And Seizure?
If the police or the judge doesn’t follow the rules, then the search and seizure could be deemed illegal. For example, a warrant could be challenged if it can be proven that:
- The police mislead the judge.
- The warrant was too broad.
- The search exceeded the limits of the warrant.
- The judge was biased
If the police do a search based on probable cause or due to one of the exceptions, they will have to prove that their search fell under the exceptions. If it can be proven otherwise, the search and any evidence collected in relation to the search will be illegal evidence.
The trickiest areas are when it’s unclear whether or not society has decided there is a reasonable expectation of privacy. Electronic devices are used to fall into this category. Prior to 2014, there was no reasonable expectation of privacy for electronic devices in California. Police were free to search phones and computers as they pleased. However, that is now illegal without a warrant thanks to a California Supreme Court ruling.
What Happens If An Unlawful Search And Seizure Is Discovered?
Unlawful search and seizure does happen, but how can you challenge it? Your criminal defense lawyer can file something called a “motion to suppress” before your trial starts. In the motion, your criminal defense lawyer will offer their arguments about why a search and seizure was illegal and why the evidence found should not count under California’s “exclusionary rule”.
If the judge agrees that the search was unlawful, the state will be unable to use any evidence collected in that search. Depending on the nature of the crime and the evidence suppressed, the prosecution may be forced to use a lesser charge or to drop all charges because they lack the evidence to proceed.
There is also a second way your lawyer can challenge the legality of a search and seizure. Sometimes the police will gain legal evidence indirectly through an illegal manner. If there is no way they could have found that evidence without the illegal search and seizure, that evidence can be excluded under the “fruit of the poisonous tree” rule. However, the prosecution does have ways to challenge this so it is a weaker way to suppress evidence.
One of the things that a criminal lawyer will do for you is to examine how the police obtained their evidence. If they believe that it was obtained illegally through an unlawful search and seizure it will be challenged. If the circumstances fall in your favor, you may never have to go to trial.
Ask for Help from Illegal Search and Seizure Lawyer
However, if your case goes all the way to trial without challenging the evidence then it will be much harder to dismiss what is presented. This is why it is so crucial that you get a lawyer skilled at challenging unlawful search and seizures on your side as soon as possible after your arrest.
If you are arrested in Los Angeles, don’t wait until it is too late. Contact Manshoory Law Group for a consultation. Explain your reasons why you think the evidence against you was illegally obtained. We will fight hard to force the prosecution to prove that they did everything by the book.
Jun 17, 2019
What are Gang Databases?
Gangs are considered to be a serious threat to society. Rather than one individual robbing a merchant, for example, gangs are structured and arranged to achieve a specific end. Accordingly, law enforcement agencies have put a lot of effort into mitigating the effect of gangs. One way in which this is accomplished is through the compilation of gang databases, such as CalGang in California.
By focusing on known gang members, law enforcement is able to keep a closer watch on these individuals in an effort to keep society safe. However, in some cases, individuals may be put on CalGang without notice and without membership in a gang – they have slipped through the cracks. In these cases, it is imperative to retain the services of an experienced criminal defense attorney as soon as possible to implement a process for removal from the CalGang database.
Unfortunately, inadvertent inclusion on the CalGang database is not as far-fetched as one would think, as this article illustrates. As mentioned in the article, some have claimed that the database encourages racial profiling. A discussion of the CalGang database will follow below.
What is The CalGang Database?
CalGang, like most State gang databases, is a compilation of individuals who meet a number of criteria that, ostensibly, prove membership in a gang. Unfortunately, membership in a gang is a highly-subjective determination, and each county that participates in CalGang has differing categories for inclusion into the database.
This is actually a feature of the program, and not a bug, as law enforcement does not want gang members to hide certain aspects of their lives which would not get them placed on the database.
However, there are some factors that are common with most counties, and include the following:
- Admission of gang membership;
- Tattoos depicting gang affiliations;
- Clothing consistent with gang membership;
- Gang graffiti on personal property;
- Identification as a gang member (from another gang member, a rival gang member, a reliable informant, a family member, or another law enforcement agency);
- Association with known gang members, including prior arrests with such individuals; and
- Attendance at gang functions or known gang hangouts.
What Can I Do to Get Removed from CalGang?
For instances in which an individual is improperly placed on CalGang, California law allows him/her to petition for removal. As set forth in the statute, the individual must first request removal from the law enforcement agency responsible for placing him/her on the database. This petition gives a court the authority to review the law enforcement agency’s denial. The petition must be filed within 90 days of the denial.
In its review, the court will look at the documentation provided by the law enforcement agency as its basis for denying the individual’s request for removal. If the court determines that the law enforcement agency has failed to establish, by clear and convincing evidence, the individual’s active, associate, or affiliate status of gang membership, the court shall order the law enforcement agency to remove the name of the individual from the gang database.
Speaking to an experienced criminal defense attorney can help ensure that an individual’s petition is viable, and will use their skill to ensure that the information in front of the court gives the individual the best chance at success.
Speak to a Criminal Defense Attorney
If you have recently discovered that you are listed on the CalGang database, and are curious as to what this means, as well as how and whether you can get yourself off the database, contact the criminal attorneys at Manshoory Law Group, APC as soon as possible.
The attorneys at our office have years of experience in criminal defense matters, including an understanding of what is involved with someone’s name being added to the CalGang database.
The attorneys there are available 24/7 to take your call. Contact our lawyers today for an initial consultation.
May 2, 2019
What is Expungement in California?
Being convicted of a crime, and serving out a punishment, unfortunately, is oftentimes not the end of an individual’s ordeal. A criminal conviction is a public record that can be accessed by anyone, including potential employers, landlords, licensing agencies, and professional organizations, by simply searching a database. Having a criminal conviction on one’s record can mean a much tougher experience in obtaining a job, receiving a business license, or applying for credit, as well as any number of other barriers that society has deemed necessary.
Fortunately, California provides a procedure by which certain individuals convicted of a crime can have their records expunged. This process will take the conviction off a person’s record, and allow him/her to truthfully and legally tell an employer they have no criminal record. This is a fairly easy process once it is determined a person qualifies, but it should be noted that, unlike other states, California does not completely erase the criminal conviction from the state record system. Instead, the case is reopened and is listed as “dismissed in the interests of justice.”
While this may seem like a hollow victory, potential employers are not allowed to use this type of record against an applicant or even reference it in the interview. As the vast majority of individuals will need to undertake this procedure only once, it is especially important to retain the services of an experienced criminal defense attorney to assist in the expungement process, as the process is complex, and the failure to adhere to all nuances could mean denial of a petition.
However, although California has recently expanded the offenses which are eligible for expungement, as well as streamlining the process, it still is time-consuming. As a recent article illustrates, a group advocating for those who are able to have their records expunged has developed an algorithm to assist in doing just that.
What Crimes Are Eligible for Expungement?
As mentioned above, only certain crimes are eligible for expungement under the current procedure. Specifically, expungement is not available for the following crimes:
- Sodomy with a child;
- Committing a lewd or lascivious act with a child;
- Oral copulation of a child;
- Statutory rape, which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16;
- Any offense involving child pornography;
- Forcible penetration with a foreign object; and
Additionally, if an individual served time in State prison, that individual would only be eligible for expungement if the underlying crime is one that would qualify for a sentence to serve time in a county prison at the time of filing the petition for expungement.
Who Is Eligible To Have Their Records Expunged In California?
Expungement isn’t available to everyone, only certain individuals can receive this benefit. If you are unsure whether or not you qualify for having your record expunged, talking to a Southern California criminal defense lawyer who can examine your criminal history is a good place to start.
These legal professionals are going to check your history against the following measures:
- Your conviction occurred in a state court, not a federal court
- You did not go to state prison
- You did go to state prison when you could have served your time in county jail if your crimes occurred after Realignment in Proposition 47 was passed
- You meet the requirements to be eligible for a certificate of rehabilitation and expungement
- You finished your probation or you were able to have your probation terminated early via a petition
- You successfully completed all of your conviction requirements such as classes or community service
- You are not facing any other charges for a criminal defense
Who May Not Have Their Record Expunged In California?
Those who have any of the following, are not able to have their records expunged:
- You are looking at charges for a criminal offense
- You are currently on probation for a criminal offense
- You are currently serving a sentence for a criminal offense
- You are convicted of certain sex crimes against children
When Can Someone Apply?
A person can request an expungement as soon as probation is completed or he/she receives an early termination of probation. Unlike many other legal procedures, expunging a criminal record is a fairly quick process that usually takes one to two months.
While expungement can help with employment and obtaining professional licenses, there are certain things it cannot do, including:
- overturn a driver’s license suspension or revocation;
- restore gun rights;
- end a duty to register as a sexual offender; or
- eliminate the conviction from being used toward sentence enhancements under the three-strikes law for any future criminal offenses.
How Does Expungement Work?
To have a record expunged, an individual who meets the above eligibility requirements, as well as the above crime requirements, may petition the State for expungement. In doing so, he/she will need to acquire a copy of his/her criminal record, and submit it for review by the ruling judge.
If all the required elements are met, then, thanks to the new process for expungement, the judge is given no discretion on whether to grant the request and, instead, is required by statute to expunge the individual’s record.
Accordingly, speaking with an experienced criminal defense attorney before beginning the expungement process will serve to ascertain whether a case is eligible for expungement.
What Happens After Your Record is Expunged in California?
There are several benefits to expungement but it doesn’t alleviate all issues that are connected with a criminal conviction in California.
This is what expungement will do:
- Adjust the court record to indicate that your case was dismissed.
- Provide more flexibility to answer no regarding your conviction when you apply to most jobs. You should answer yes regarding your conviction when you are pursuing a government job. The same is true for professions where it is necessary to have a license, certificate, permit, or any level of security clearance but you can also disclose that you had your conviction expunged.
- Unless you are facing trial for another offense, you will be able to testify in court as a witness.
- Potentially allow you to get a pardon if your expungement was for a felony.
An expungement in California will not do the following:
- Your criminal history will still show your conviction and expungement that the state of California, as well as the FBI, can see.
- If your conviction resulted in making it unlawful to have a firearm, expungement doesn’t reinstate that right.
- You will still have to register as a sex offender if you were convicted of sex crimes.
- If you require a government-issued license you have to indicate that you were convicted of a crime.
- Seal your case from the public.
- If you are arrested for another crime, your expunged crime can still be used to increase your sentencing.
- Licensing agencies can still revoke or deny you a professional license.
- The Immigration and Naturalization Service may still consider your conviction when determining your status.
How To Get Help With Expungement In California?
Despite its limitations, individuals who qualify for expungement can improve their quality of life and reclaim their future for the better after a criminal conviction. The Los Angeles criminal defense attorneys at the Manshoory Law Group can provide you with the legal guidance you need to learn about how expungement works and if your case is applicable.
Contact the California criminal defense attorneys at the Manshoory Law Group today to schedule your free case evaluation at (877) 977-7750 today.
Apr 25, 2019
As science and technology become more integrated with society, it seems inevitable that fictional crime dramas on television will eventually become reality. In these shows, many accused are convicted on the basis of DNA evidence. What the dramas do not illustrate is that DNA evidence is not the be-all-end-all and that its veracity can be contested and, in some cases, its applicability invalidated.
Retaining the services of an experienced criminal defense attorney can be crucial to negating the effects of this evidence, by persuading the judge or jury that the evidence is false, unreliable, or the like. Recently, California authorities arrested a man on suspicion of being the Golden State Killer, a serial rapist-murderer from a decades-long cold case, based on “Family Tree Forensics” – comparing the DNA collected at the crime scenes with the DNA submitted by family members to various private laboratories, and developing an educated match to the individual who is ultimately accused of committing a crime.
Deoxyribonucleic Acid (DNA)
DNA is a molecule, present in every organism, which carries the unique genetic instructions used in the growth, development, functioning, and reproduction of that organism. Essentially, DNA is the ultimate fingerprint – identifying information that is unique to every individual. An individual’s DNA is inherent in every aspect of his/her being. Thus, when an individual is at a crime scene, even portions of his/her skin that naturally falls hold DNA information. Law enforcement uses collected DNA to compare it against known samples in the state and federal databases.
California permits the collection of DNA from the following individuals:
- Any adult arrested for a felony in California;
- Any juvenile convicted or adjudicated for a felony in California;
- Any individual convicted or adjudicated of a misdemeanor, if he/she has a prior felony in any state;
- Any individual in custody or on any supervised release after a conviction for any California felony committed prior to November 3, 2004;
- Any individual currently on any supervised release for any offense, but having a prior felony in any state; and
- Any individual is required to register as a sex or arson offender.
Challenging DNA Evidence
When done properly, DNA testing is incredibly accurate. This is because the only real possibility of two people sharing the same DNA is in the case of identical twins. However, to be done properly, the collection of DNA evidence must be done under the proper circumstances, such as when one can obtain a large amount, when there is a clear chain of title, and when the processing laboratory is mistake-free.
This happens, however, in only a few circumstances. In reality, DNA evidence will almost certainly have some degree of ambiguity, and, as a result, can be challenged on any number of factors including the following:
- Bad sampling. DNA is collected at the crime scene, which is not a clean environment and can result in the contamination of DNA from other individuals. Further, some collections are less reliable than others, such as that from a door, which will almost certainly contain traces of many individuals.
- Improper lab procedures. Some crime laboratories handle many samples at one time. Accordingly, strict procedures are needed to prevent mistakes. However, mistakes do happen, and a DNA sample may be improperly stored, labeled, or analyzed. Additionally, the chain of title – a documentation of the DNA and its possessor every step of the way from collection to courtroom – may be incomplete.
- Travelling DNA. Even if a match occurs, it is not dispositive as to whether the accused individual was at the crime scene, as there is no known way to determine how DNA travels. Further, DNA can linger for months after an individual has visited a locale, further clouding the accuracy of the evidence.
Speak to a Criminal Defense Attorney
If you have been arrested on suspicion of committing a crime and DNA evidence will likely be used against you, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. Time is always of the essence in responding to criminal allegations, so it is crucial to avoid delays.
The attorneys at our office have years of experience in criminal defense and can use this to challenge any DNA evidence that the prosecution may intend to use against you. Contact the Los Angeles criminal defense firm today for an initial consultation.
