Is It Illegal to Be Present When Others Are Using Drugs?

Guilt by association is not a valid theory of legal liability. After all, except in limited circumstances, there is an almost constitutional right to associate with others. The U.S. Constitution allows freedom of speech, which necessarily bars prosecution for associating with others (NAACP v. Alabama (1958), a U.S. Supreme Court case). So can someone be prosecuted for being present while others are using drugs? If so, under what circumstances? To read about this issue, click on the following link.


What Is Health & Safety Code § 11550(a)? Punishment?

Being under the influence of a controlled substance, i.e. Xanax, Oxycodone, Ecstasy, PCP, cocaine or heroin, without a valid prescription is a crime under Health & Safety Code § 11550(a). Being under the influence of
meth is punishable under a different code section, as is marijuana under certain situations. It is generally a misdemeanor, so the maximum punishment is less than for a felony, but it can be a felony if one is also found in possession of a firearm or one has a history of refusing drug treatment. To read more about this offense, click on the following link.


When Can a Prior Juvenile Offense Be Used as a Prior?

A prior adjudication of guilt (the rough equivalent of a conviction in juvenile court) may be used to enhance a sentence in adult court if it qualifies as a prior strike under California’s Three Strikes Law and the juvenile was sixteen years or older at the time of the act. Other prior adjudications cannot be used to enhance an adult sentence. To read more about this rather complicated area of sentencing, click on the following link.

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Prior Convictions Outside California – Effect Here?

Convictions outside of California often are not even known by prosecutors in many cases we have handled. However, when the prosecutor is aware of such a conviction, i.e. for DUI or what may a “strike offense” under California’s Three Strikes Law, there is a sense of urgency in knowing what effect, if any such a conviction will have on sentencing here in a pending case. It is not always an easy answer to reach. To read about such out-of-state convictions and their effect, click on the following link.

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Prior Convictions – How Can They Affect a Current Case?

Not all prior convictions will affect sentencing or even proving a pending, current case, but many prior convictions certainly do have this affect or this role. For sentencing, a prior conviction’s effect depends on how recent it was suffered and what it was for, as well as what the current case alleges. Sometimes, it disqualifies one from serving a sentence in county jail. Other times, a prior conviction can cause the sentence for the pending case to double. To read more about prior convictions and their effect on a pending case, click on the following link.

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Defendant’s Right to Not Testify & Not Take the Stand

In many cases, defendant may not want to testify because he or she is fearful a clever prosecutor will cross-examine him or her in a way that suggests guilt to the judge and/or jury. But can the prosecution, knowing defendant wishes to assert his or her Fifth Amendment right against self-incrimination, simply call the defendant to the stand just to force defendant to assert the right, thereby drawing juror and judge attention to defendant’s unwillingness to testify and thus, suggest guilt? To read more about his issue, click on the following link.

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No Cash Bail & Arraignment Deadline for One in Custody

Senate Bill 10 (SB10), while subject to a referendum vote in November of 2020, is nonetheless an intriguing possible change to California bail. If cash bail is indeed eliminated as SB10 set forth, when will one be arraigned if one is not released from jail? Will it be later than currently required, specifically 48 hours within an arrest? Will the pretrial risk assessment required by SB10 take more than 48 hours? Will California law on the exceptions to a speedy arraignment be amended to permit a proper pretrial risk assessment? To read more about this problematic issue, click on the following link.

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