Drug Possession- Personal Use

Under Penal Code Section 11350, the possession of heroin or crack cocaine can only be charged as a felony. The possession of almost all other controlled substances can be charged as either a misdemeanor or a felony. The maximum sentence for possession for personal use is three years in prison.

Persons charged with a possession offense are often eligible for a probation only sentence. This means they have a right to drug treatment in lieu of prison or jail. In California, these programs are called 'Deferred Entry of Judgement' and 'Proposition 36 Treatment'. Each program has different requirements for eligibility. If a person is sentenced under either of these programs, they have a right to have their case dismissed if they complete probation successfully.

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Consent to Search

Without a warrant or other valid exception, the government is not allowed to search one's person or property. This protection stems from an expectation of privacy in the protected areas. Law enforcement often requests permission to search in order to avoid the necessity of getting a warrant. Many feel that law enforcement puts pressure on them to give such permission. Any pressure exerted by law enforcement is improper and illegal. Consent given as a result of police coercion is invalid. You have a right to say, 'No.'Denying consent cannot be used against you.

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Miranda Rights Cannot Be Equivocal

A request for an attorney must be conveyed to law enforcement in a clear unambiguous manner. Should there be any question as to the true intention of the speaker, law enforcement is not required to take steps to determine the statement's meaning. In other words, law enforcement can continue to question a suspect as if he or she never asserted a right for counsel. To avoid any undue prejudice, request an attorney in a clear manner and immediately upon being taken into custody.

Additionally, the request for an attorney is offense specific. This means that a person who is being investigated for more than one offense, must specifically request an attorney as it relates to each matter. In other words, if someone is being investigated for two separate offenses, he or she must make it clear that the request for an attorney applies to each offense. The same holds true if a person is being investigated for a new offense in conjunction with a probation violation.

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Law on Expungement

Under Penal Code Section 1203.4, a person who has been convicted of a crime and granted probation is entitled to have his record expunged, with the case dismissed, if (a) he has fulfilled the terms of his probation; (b) his period of probation is over; or (c) the court, in its discretion, finds that defendant, in the interest of justice, is entitled to relief.

Furthermore, Penal Code Section 1203.4 allows for probation to be terminated early to allow someone to expunge their conviction.

People v. McLernon states that a person is eligible for an expungement even if they suffered a probation violation, such as a 'dirty' drug test. A court can look at any relevant information in determining whether to grant an expungement, including post-conviction good behavior. Good conduct such as employment, education, or other methods of rehabilitation are factors which may qualify someone for expungement.

People v. McLernon also states that a person can reapply for expungement even if their request has been previously denied.

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Restraining Orders- Know Your Rights

A restraining order can be obtained by victims of harassment. This order can keep the restrained party away from a person's home, work, vehicle and family. Typically, restraining orders require the restrained party to stay 100 yards away. Restraining orders are often valid for three years.

A person seeking a restraining order needs to establish that he or she is a victim of violence, a credible threat of violence, or a course of conduct intended to seriously alarm, annoy, or harasses a person.

Each violation of a restraining order can result in criminal charges.

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