San Diego Drug Crimes Lawyer Answers Legal Questions – Law Office of David P. Shapiro.


– We’re with Dave Shapiro, David is a Criminal
Defense Attorney in San Diego, California
and he’s agreed to answer some online
questions that were posted. With that said, David, let’s go into the
first questions. These are all about
drug crimes, by the way. So the first question
was from Ruben. Ruben says, I’ve been
charged with drug possession for the first time. Cocaine, but it wasn’t a lot. Can I avoid jail time? – Ruben, depending
on your record, you probably will
avoid jail time. If you don’t have
a record you might be eligible for a
diversion program. You would, you know, ultimately enter a
plea to the charge if it can be proven against you. You put off
sentencing 18 months, you stay outta trouble, you complete an outpatient
drug treatment program. The plea gets withdrawn, the case ultimately
gets dismissed. That’s known as a
P.C. 1000 program. Even if, and maybe if you have a pretty lengthy criminal
history, you know, you would technically
be facing up to one year or 364 days in jail, if convicted. How realistic a jail
time you’d get depends on the amount of drugs your
prior criminal history, but generally for simple
possession offences, you know, we’re
pretty successful and most attorneys
are pretty successful trying to get you out
of actual jail time. But nevertheless, you
still want to make sure you leave no stone
unturned in your defense because there are a lot
of different programs and different options in
defenses you might have. – Okay, next question
we have was from Janet. Janet says, how do the police decide what is possession and what is possession with
intent to distribute? – Well if it were up to police, I think they’d charge everybody with possession with
intent to distribute. They tend to overcharge, or are a little cynical
on what a user would use that over the course
of a day or a week. But it’s ultimately
going to be up to, on the front end the
police make the arrest, they may make their
recommendation what they book people in jail on but it’s ultimately going
to be up to the prosecutor if they decide to file charges, and if they decide
to file charges as a simple possession
or possession with intent to
sell or distribute. Laws in California have
changed dramatically in the last couple of years. Not necessarily decriminalizing
simple possession but reducing simple
possession of cocaine and heroin from felonies to misdemeanors. Reducing simple possession
of methamphetamine from a wobbler, a
felony or a misdemeanor, to just a misdemeanor in
almost all situations. What that has done, in one
regard that’s a good thing but on the flip side, it’s increased the disparity
in sentencing ranges between simple possession
and possession for sale. If you’re convicted of
possession for sale, it’s a non-reducible felony, that’s a felony conviction that can never be reduced
to a misdemeanor. It’s also priorable, and
would add three years onto any future possession
for sale’s case. So the tendency sometimes is to overcharge these cases, meaning where they’ll charge
it as possession for sale and it’s become more difficult to actually work out a
resolution for simple possession because the DA doesn’t
want to give up the felony. The DA doesn’t want to
give up the priorability that the felony
charges would carry. But, if they’re
being unreasonable, if the facts don’t support it, you know there’s many
things your attorney can do. They can take the matter
to preliminary hearing, they could hire their own expert to sort of rebuff
what the DA is saying. You know, some
investigation as to what your drug habits may
be, if you’re using. And all those factors
that go into it. And in all honesty,
especially if you don’t have a record,
and the DA wants you to plea to what
you’re charged with, you may not have incentive
to resolve a case. It may be in your best
interest to fight on, even if you don’t have the
greatest defense in the world. Only an experienced
defense attorney, well versed in the law,
well versed and practiced, can be able to advise you on what’s in your best
interest in that regard. – Okay, next question
was from Marian. If an undercover officer
tries to offer you drugs for sale and you haven’t
asked, is that entrapment? – Well. (clears throat) Entrapment’s an
affirmative defense and basically what
that means is, first off, the officer, undercover officer
offers you drugs, I’m assuming you would have
had to have accepted them and then ultimately
gotten arrested. You hear that a lot,
wasn’t that entrapment? In prostitution cases
and in drug cases. But as far as the drug cases go, generally what you would
need to show for entrapment is that you weren’t intended or inclined to do that. Meaning to take
possession of the drugs. But for, and only because
of, the insistence of the other person is how
you came into possession. You know if you were
inclined to do it just because the
undercover came up to you doesn’t make it entrapment. You know if you were
walking away and said, hey man I’m good,
leave me alone. And they kept pressuring you, and kept pressuring you, and kept pressuring you, and kept pressuring you, maybe you have a borderline
entrapment defense. But you know, it’s not as common, and
certainly not nearly as successful as a defense as many would hope it would be. – Okay, next question was
a very short one from Jay, can anyone smoke marijuana
now that it’s legal? – Not anyone, if
you’re on probation and it’s a condition
of your probation not to smoke marijuana, you can’t. You’re respective of
what the laws for people who aren’t on probation. You know you would need to
modify your probation terms. There are certain offences that, there are certain
offenders or people with certain backgrounds where, you know simple possession
which would be an infraction or you know, low
end misdemeanor. You can still be
prosecuted very seriously as misdemeanors or felonies,
depending on your record So not everyone, no. – Okay, the last question
we have is from Melissa. In what ways is a drug
related DUI different from an alcohol related DUI
as far as the penalty? – Well as far as
penalty goes, you know they tend to be treated
relatively the same. But as far as penalty goes
if you’re convicted of a drug related DUI,
your license would be suspended for
at least a year, even on a first time. And you would not
be allowed to get a restricted license
the way you would if it was an alcohol
first time DUI. That’s one main difference. Another difference is, is it’s a lot more
difficult sometimes to prove those types of
cases to drug cases because there is
no hard and fast, you know line in the sand
type of offense level where it’s, hey it’s this many, 90 grams per milliliter
of something, or this many whatever, you know of THC. It is good enough for a DUI. But you know the penalties
increase sometimes if you are under the influence of a controlled
substance, and DUI because of that controlled substance. Because then you could
also be charged with being under the influence of
a controlled substance in general under the
Health and Safety Code, which doesn’t
necessarily require proof that you operated
a motor vehicle. So a lot of times
on DUIs with drugs, we see the underlying
misdemeanor of driving under a, driving under the influence
of a controlled substance as well as just being
under the influence of a controlled
substance as well. So a lot of times it’s actually a whole other misdemeanor charge that you need to defend against. – Excellent. Well, I hope that answers
all your questions, if you have more
just post them in the comments section below, and David’s agreed to get
back to you with an answer. And thanks for answering
the questions, David. – Yeah sure, my pleasure. And again, I can
always be reached at 619-295-3555. Thank you. (chair clicking)

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