CA proposition 47 and drug possession charges and the possibility of dismissals or reductions of these crimes is something about which everyone either accused or convicted of a drug crime in California ought to seek legal advice and counseling. With the passage of proposition 47 in California, felony charges for certain drug possession charges are now handled as misdemeanors in most instances. (see http://www.latimes.com/local/politics/la-me-ff-pol-proposition47-20141106-story.html#page=1) Traditionally an arrest for possession of narcotics such as cocaine, heroin or methamphetamine were always charged as felonies and could not be reduced to misdemeanors. However, as discussed below, such simple possession charges were defended in different ways by experienced criminal defense attorneys including filing a motion to suppress evidence based upon an illegal search, seeking to have the case eventually dismissed through a diversion program or seeking disposition of charges through a drug court program. Although these options are still available in defending a criminal case in California, the passage of proposition 47 has now made it possible for defendants to avoid felony charges as long as certain facts apply to their arrest for possession of drugs or narcotics.
Drug possession charges that are now misdemeanors under California Prop. 47
California Health and Safety Code section 11350 prohibits the unlawful possession of opiates such as heroin, hallucinogens, and various prescription drugs. Prior to the passage of proposition 47, possession of such drugs would be considered a felony if convicted leaving the possibility of a state prison sentence. Moreover, California Health and Safety Code section 11357(a) prohibiting the possession of concentrated cannabis (marijuana) is now as a misdemeanor instead of felony charge. Finally, California Health and Safety Code section 11377(a) which is typically applied to possession of methamphetamine charges is now also a misdemeanor in California.
Prosecutors will try and get around these new laws by charging person with possession of drugs or narcotics for sale which is still a felony charge not subject to reduction to a misdemeanor. If the quanity of drugs seized from a defendant is large and there is other evidence of an intent to sell such as the seizure of scales, a large amount of individual baggies and large quanities of cash, a prosecutor will often seek a conviction of possession of narcotics for sale. Such conviction can be life altering which can include registration as a narcotics offender, a felony record and a sentence which may include time in state prison. When facing such charges it is always advisable to seek the counsel of an experienced criminal defense lawyer who has knowledge of the drug laws in California including proposition 47 which may be used to negotiate a reduction or amendment of charges to a misdemeanor.
Diversion of Drug Charges in Los Angeles and California
Prior to the passage of Proposition 47 in California, most California counties including Los Angeles, Orange, Riverside, Ventura and San Bernardino County allowed for a post-plea diversion deal to qualifying defendants charged with possession of narcotics or drugs. . In diversion cases, the defendant enters a plea of guilty to the drug possession charge(s) but no sentence is pronounced and no conviction is entered. Instead, a California Superior Court will normally continue or suspends the charges for usually 18 months. During the time the case is pending, the defendant most often must complete a drug program which can involve attending Narcotics Anonymous meetings and in some cases submitting to drug testing. If a diversion program is successfully completed by a defendant, the criminal case is then dismissed by the Court and no conviction appears on the defendant’s record. Clearly, the dismissal of felony or misdemeanor charges by diversion is better than being subjected to a felony or misdemeanor conviction. Even a conviction of misdemeanor drug possession can lead to jail time of up to 1 year in a California county jail.
It does not appear that proposition 47 has abrogated a Court’s ability to allow for diversion of charges under California Penal Code section 1000 and a person charged with drug possession charges should always consult with a qualified criminal defense attorney to determine their eligibility for diversion and dismissal of their criminal charges.
Challenging Drug Charges Pursuant to a Motion to Suppress under California Penal Code 1538.5
Just because proposition 47 may allow for a person charged with drug possession to enter a plea or be convicted at trial for a misdemeanor, a defendant facing such charges should always explore trying to get the charges dismissed by prevailing on a motion to suppress the evidence seized pursuant to a drug possession arrest. The Fourth Amended to the United States Constitution protects individuals from unlawful searches and seizure by the government whether it is a local police officer, sheriff, chp officer or a federal law enforcement agent. The United States Supreme Court has found that persons have reasonable expectation of privacy against the search and seizure of their person or property, as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. In California, Penal Code section 1538.5 (a) provides that a defendant facing criminal charges including charges for drug possession may make a motion with the Court to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure including drugs or drug paraphernalia on the grounds that the search of a defendant’s person or property and the seizure of items was without a warrant was unreasonable.
Importance of seeking out legal advice from an experienced Los Angeles criminal defense attorney in drug possession cases:
In my 20 years of practicing criminal defense, the majority of drug possession cases derive from the search of a person or vehicle after a routine traffic stop. The majority of searches of vehicles are without a warrant. An experienced California Criminal defense attorney can challenge drug charges in certain cases based on favorable California and United States Constitutional law concerning warrantless searches of vehicles. In People v.Williams (1999) 20 Cal.4th 124, the California Supreme Court found that the burden of justifying a warrantless search or seizure falls upon the government prosecution. A criminal defense lawyer will often file a successful motion arguing that a defendant arrested pursuant to a warrantless search only burden is to show, by competent evidence presented or stipulation entered into at the hearing, that the search or seizure occurred without a search or arrest warrant and that the evidence sought to be suppressed is a fruit of that act. Often times, a prosecutor will have a hard time opposing a viable motion to suppress brought by an experienced criminal lawyer and persons arrested for such charges should immediately consult with and/or retain an attorney to determine all defenses to criminal drug charges which may lead not only to reduction of charges from a felony to a misdemeanor but to the dismissal of criminal charges.