Can the side-effects of a prescribed medication, or even one that is illegally taken, be a factor in sentencing, or even in determining criminal liability? The answer is yes, but it varies with the crime and the mental state required to commit the crime. It also matters with the quantity taken and if this amount was in compliance with the prescription. Most importantly, did the medication prevent the defendant from understanding the nature and consequence of what he or she was doing? These can be tough questions to answer. To read more about this common issue, click on the following link.
There are certain types of charges that invite overbroad searches, so defense attorneys must closely evaluate police misconduct. In the following case, police found a laptop belonging to a police officer and searched it, finding child pornography. However, the search warrant authorizing a search only described the front house of two houses on the property and the police officer did not live in the front house. He lived in a separate house behind the front house. Was the search still valid? Click on the following link to find out.
What is the unlicensed practice of pharmacy (Business & Professions Code § 4067)? In what context does it arise? What are the defenses? What is the punishment? Can selling prescription drugs over Craigslist trigger such an arrest and charges? To read more about this increasingly common crime with rising healthcare costs, click on the following link.
Many defense attorneys, judges and prosecutors are surprisingly unaware of what is known as the “automobile exception” to the Fourth Amendment. Instead, such attorneys and judges evaluate a search of a car using the traditional plain view, exigency, inventory search and inevitable discovery analysis that pervades analysis of other areas searched. So what is the automobile exception to the Fourth Amendment? Click on the following link to find out.
Under Penal Code § 422, the statute prohibiting the making of criminal threats, it is a crime to threaten the infliction of great bodily injury or death to another or the immediate family of another. The threat must be made with the specific intent that the statement, made orally or in writing or by electronic means, be understood as a threat. In past cases, making a gesture toward another was considered sufficient to constitute a criminal threat. What about showing a tattoo to another? Is that sufficient to be a criminal threat? Click on the following link to find out.
As one may aware, Proposition 57 passed about a year ago, barring the direct filing of juvenile cases in adult court, even for murders, forcible sex offenses and other serious crimes. This new law raises the issue of whether a past conviction of a juvenile that arose after a direct filing of the case is improper. Does this mean that any prior conviction is vacated if it involved a juvenile case filed directly in adult court? More fundamentally, is Prop 57 retroactive? For answers to these questions, click on the following link.
If the first ten days after a case has been assigned to a judge has passed, one cannot request that a judge be removed peremptorily, or without a stated reason. After the tenth day passes, one must file a motion to disqualify a judge. What types of arguments succeed and what is the legal standard for removing a judge? Click on the following link to find out –
We have a lot of people call us to ask how they can get a judge removed from their case. The caller will tell us that the judge is not listening to them, is biased against a particular racial group, or is has some history with a family member in a past case. The caller wants to know if there is a way to remove the judge from the case. There are indeed grounds to request that a judge be removed, but they are very limited. What are they and how does one request this? Click on the following link to find out.
It is not uncommon for an important witness, either lay or expert (or both), to become unavailable for an important hearing or even trial. How does one ask the judge to delay the hearing or trial and what issues will the judge be keen to know in deciding whether to grant such a request? What should one do? To read about this common problem, click on the following link.
If one wants to delay a hearing, a written motion under Penal Code § 1050 is the generally best way to ask the judge for this. However, what if one just is not prepared and needs more time? That may be a proper ground to continue a hearing, depending on the reason one is not prepared in time? Were you hospitalized? Is there new case law that applies? Is there new evidence? To read about how to handle these contingencies with a judge, click on the following link.