Archive for defense

Wrongfully convicted? There is a way to clear your record.

Wrongfully Convicted? There is a way to clear your record.

Once upon a time, if you were wrongfully convicted of a crime and you had already served your time, vacating the underlying conviction was limited and difficult. Thankfully, in 2003, the California Legislature noted the increased number of cases wherein it was proven that a defendant was wrongfully convicted based on false testimony of a police officer or DNA exoneration long after the defendant’s sentence had been served and, therefore, promulgated California Penal Code section 1473.6.

This statute provides the means for you to vacate a wrongful conviction. To qualify for this relief, you must have completely served your sentence and:

  • (1)  Newly discovered evidence of fraud by a government official that completely undermines the prosecution’s case, is conclusive, and points unerringly to his or her innocence.
  • (2)  Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.
  • (3)  Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment. Evidence of misconduct in other cases is not sufficient to warrant relief under this paragraph.

It is important to note that, once you have information tending to prove your innocence, you must act upon that within one year. Moreover, if there is actual evidence of misconduct by the police, you must act within 6 months to avail yourself of money damages. If this happened to you, don’t hesitate to contact Santa Rosa Criminal Defense attorney Gabriel Quinnan here at Quinnan Law. In a brief, free consultation, Mr. Quinnan can help determine your next steps.

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Police Abuse of Authority and 42 U.S.C. section 1983 Claims

Policing the Police; You CAN Get Compensated For The Deprivation Of Your Constitutional Rights.

With the advent of cell phone video and body cameras, the public has become increasingly aware of a disturbing amount of police violence and dishonesty. For years, my clients have complained of serious deprivation of their rights, from factual dishonesty in their investigations to fabrication of evidence to physical abuse. For example, it was recently discovered that a crime lab in New Jersey had been fabricating lab results, possibly resulting in thousands of convictions overturned: http://www.sciencealert.com/forensic-lab-tech-caught-fabricating-results-casts-doubt-over-almost-8-000-criminal-cases. It must be remembered that the reality of those convictions means years and years of jail for innocent people. And, of course, there are the almost daily reports of police physical abuse.

When someone’s constitutional rights have been deprived, what, if anything can be done? Thankfully, both federal and state law provides remedies, commonly referred to section 1983 actions. In 1983 claims, one must show that the officer, acting under the color of authority, deprived a citizen of his rights. The important thing to remember is that, while the cause of action is similar between state and federal law, state actions require extra steps to ensure that you are able to even bring your case to court. The first thing you must do is file a Tort Claim, which is usually a standard form provided by the city or county in which the law enforcement agent is employed. That form must be filled out within six  months, or you will have abandoned the claim. My advice is to have an attorney fill out the form on your behalf so that you can avoid making any statements that they can use against you later.

Once the claim is rejected, you will have two years from the date of the incident to file your federal and state claim. The federal action adopts statute of limitations of the state in which the incident occurred, which in California is two years. Once the matter is properly filed, expect to spend a few years fighting tooth and nail over the complaint. In recent years, local governments have been loathe to admit liability in these cases and will put up a significant fight before settling; so do not expect a quick pay day.

Santa Rosa criminal defense attorney Gabriel M. Quinnan can help you seek damages for police abuses. While you cannot get back the time and effort spent originally defending yourself, he can help ensure you get compensated.

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Regulation of Marijuana facing local challenges

Regulation of Marijuana Challenging for North Bay Growers

With the recent legalization of marijuana in California, would-be growers and producers are, for the first time, experiencing greater hurdles than in the heady days of the black market. As argued by proponents of legalization over the years, government regulation of marijuana will result in less tax evasion, pollution and crime because of a combination of factors.

The most important of these factors will be the decrease of the price of the product due to the advent of huge, legal/corporate cultivation and distribution operations. With the price per pound plummeting (some have reported $800/lb, compared to upwards of $3000/lb during pre-legalization days), the opportunity costs no longer make remote, black market grows viable. When pot was at $3000/lb, it made sense to live off the grid, far away from the main roads (and the cops) and protected by unsavory itinerant labor. However, with the inevitable price drop, they will no longer command the same profit at market. There will still be markets across state lines, but even so, the general market price of legal pot in California, generally, should experience a downward pressure such that even pot intended for illegal export will be negatively affected. Right at this moment, there are black market growers desperately seeking a market for their product and finding few places where they can earn enough profit that will justify their businesses.

The second factor will be community backlash itself. Look no further than a recent opinion piece in the Ukiah Daily Journal (http://www.ukiahdailyjournal.com/opinion/20170423/in-our-opinion-growers-need-to-grow-up) regarding the raft of regulations and taxes passed by Mendocino County locals. As a result, growers are outraged by having to submit to a regulatory and tax structure. While Mendocino was widely believed to be the future Marijuana Mecca by growers and users alike, as it turns out, years of unregulated abuses by black market growers in the form of exposure to pollution, water theft, and criminal activity has apparently left a bad taste in the mouths of the voting public. This opinion piece makes clear that the marijuana grower’s vocal hysteria about having to pay taxes is particularly galling to the citizenry after decades of unmitigated profits at the community’s expense. The result: now that cultivators are forced from the shadows, they are facing substantial resistance from the people.

While the process of change will be difficult for some, the end result of the end of marijuana prohibition will likely result in a safer community. After all, you don’t see a lot of crime regarding moon shining anymore.

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Collective defense Santa Rosa Criminal Defense

You don’t need collective documents to assert a collective defense 

colorfuljudgeRecently, the requirement to have collective documents to assert a collective marijuana cultivation defense was eliminated. The ruling came on January 16, 2015, in People v. Orlosky, a criminal appeal filed in the Fourth District Court of Appeal.[i]

The court stated that collective documents may be a relevant factor for juries to evaluate. Such documents are not a mandatory requirement preventing a defendant from asserting a collective defense regarding “informal joint cultivation arrangements between two qualified patients who grow marijuana exclusively for their own medical use.”[ii]

The new rule applies to you if your circumstances are similar to those of the appellant. Robert Orlosky argued he and his roommate, who lived in a trailer on rural property, were growing marijuana together solely for medical purposes. Orlosky asserted his defense under the Compassionate Use Act (CUA). Law enforcement officers had argued that Orlosky and his roommate were growing more marijuana than was needed for their medical use.

Although the court has eliminated the requirement to have collective documents, possessing these documents may be helpful to you. If you want to review these documents with an attorney or have been charged with felony cultivation, contact Gabriel Quinnan. Quinnan is a skilled criminal defense attorney based in Santa Rosa, available to represent clients in Mendocino, Sonoma, Lake, Marin, and Napa counties. Call Gabriel Quinnan at (707) 540-2356 to discuss your case.

[i] People v. Orlosky, No. D064468, Court of Appeals of California, Fourth District, Division One. Filed January 16, 2015.

[ii] See People v. Orlosky.

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Vehicular Manslaughter Santa Rosa Criminal Defense

What is vehicular manslaughter?

colorfullawbookThe recent tragic accident that occurred at 3rd and B Streets in downtown Santa Rosa raises the question: what is vehicular manslaughter?

This offense is defined as the unlawful killing of a human being without malice, committed while driving a vehicle.[i] A driver must have demonstrated ordinary or gross negligence.[ii] Ordinary negligence means the driver failed to use reasonable care to prevent reasonably foreseeable harm to another person. Gross negligence means the driver acted recklessly, in a way that created a high risk of death or great bodily injury.

Vehicular manslaughter is a “wobbler,” and can be charged as a misdemeanor or felony. A driver’s criminal and driving history are relevant. A misdemeanor is punishable by a fine up to $1,000, informal probation, and/or a year in jail. A felony is punishable by a fine up to $10,000, formal probation, and/or two, four, or six years in prison.[iii]

At this point, police cannot determine which, if any, driver acted negligently. The cause of the crash remains under investigation.[iv]

In many cases such as the one above, facing a possible manslaughter charge can be a terrifying ordeal. If it is possible that you can be charged with vehicular manslaughter, call Santa Rosa criminal defense attorney Gabriel Quinnan. He has experience in handling such matters in both DMV and the criminal courts. Quinnan is a skilled practitioner available to represent you in Sonoma, Marin, Lake, Mendocino, and Napa counties. Call Gabriel Quinnan today at (707) 540-2356 to learn how he can defend you.

[i] California Penal Code (PC) § 192(c).

[ii] PC §§ 192(c)(1) and (2).

[iii] PC §§ 19 and 193.

[iv] The Press Democrat, January 28, 2015. Pedestrian killed in crash on sidewalk was longtime Santa Rosa resident. See:

http://www.pressdemocrat.com/news/3449571-181/pedestrian-killed-in-crash-on?page=0

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Heien police search seizure santa rosa criminal defense

U.S. Supreme Court Rules That Police Can Stop for “Reasonable Mistake of Law”

 

colorfuljudgeRecently, the U.S. Supreme Court ruled that a law enforcement officer can stop a vehicle based on a reasonable mistake of law. fn1. This ruling both defines and restricts your Fourth Amendment rights. A law enforcement officer can stop you on the street or while you are driving if he or she thinks you are breaking the law. This is true even if the officer is wrong. Such a stop does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The stop is defined as reasonable.

In the pertinent case, Heien v. North Carolina, the officer stopped a vehicle which appeared to have only one working brake light. The officer thought it was a violation of state law to drive a vehicle with one broken brake light. It was not. North Carolina only requires a vehicle to have one working brake light.

 Obviously, there are a lot of interesting issues presented in this ruling, not the least of which is the obvious: the police are able to legally detain you based on a mistake of law, however, a mistake of law is never a defense for those accused of a crime. Secondly, is this ruling opens the door for law enforcement officers to claim a “mistake”, which will undoubtedly be upheld by friendly (and so often former prosecutor) judges. But, to me, the most interesting implied admission by this court is that the law, generally, has simply become so complicated that even those tasked with enforcing it can’t keep it straight.

By law, we, the citizens (but no longer the police citizens), are deemed to know every single code, regulation, tax provision, etc. and are expected to be in full compliance. This is so even if the law is so confusing that law enforcement officers can’t figure it out. However, we are seeing the accelerated passage of laws every single legislative session by local, state and federal governments; sometimes by the hundreds. And yet, we are deemed to have perfect knowledge of every one of them. The Supreme Court is, for the very first time, recognizing this complexity, but only as it applies to the government, the very people who are in the best position to know what the law is. It’s hypocritical and further decays our ability to defend against unreasonable police intrusion.

Cases about reasonable mistakes of law often arise after an officer has stopped a person and conducted a search of the person’s body and clothing or vehicle. If an officer has stopped you, conducted a search, and found anything incriminating, call Gabriel Quinnan, an experienced criminal defense attorney.

Gabe Quinnan can tell you if the officer’s mistake of law was reasonable. He can represent you in trial or negotiate for an improved plea offer. Gabe Quinnan is available to represent you if you live in Sonoma, Marin, Mendocino, Napa, or Lake County. Call Gabe Quinnan at (707) 540-2356 today.

1. Heien v. North Carolina, 574 U.S. ___ (2014).

 

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Marijuana sales in native tribal land

Can Tribes Grow and Sell Marijuana?

bookiconOn December 11, 2014, the U.S. Department of Justice (DOJ) said Native American tribes can grow and sell marijuana on their lands. So far, only three tribes across the country, and one in California, has shown an interest in doing so. DOJ did not name the California tribe.

Marijuana remains illegal under federal law. Although DOJ has the authority to prosecute marijuana felonies on tribal lands, the agency stated generally it will not enforce federal marijuana laws on federally recognized tribes that choose to grow and sell marijuana. The tribes must meet eight federal guidelines, including not selling marijuana to minors and not transporting marijuana to areas that prohibit it.

The question is how federally recognized tribes in northern California will react to this change. It is also unknown how DOJ will implement the policy in the manner it stated: on a case by case basis. Reaction to the delay may be slow. Tribes will likely need to reach a consensus and implement their own policies.

DOJ’s change does not make it legal for those who are members of a tribe or not members of a tribe to grow marijuana on Native American lands and sell marijuana without the tribe’s permission. If you have been charged with marijuana possession or sale, call Gabe Quinnan at (707) 540-2356. Gabe Quinnan is an experienced criminal defense attorney who has represented clients facing marijuana-related charges in Mendocino, Sonoma, Lake, and Marin Counties. He help you reach the best possible resolution in your case.

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police body camera criminal defense Santa Rosa

Police body cameras: how they can change your case

courthouseiconAcross California, local law enforcement agencies are purchasing body cameras. Here’s some facts about these devices.

* Officers determine when and where to turn them on.
* The category of camera determines where the officer will wear the device: usually in the center of their chest or on their lapel.
* The resolution and quality of the camera determines what can be seen and heard.
* The law enforcement agency that buys the cameras will determine how long a recording will be kept and who should have access. Distributing video to individuals who are not charged with a crime or connected to a case could be seen as violating privacy rights.

The fact that a body camera is rolling can discourage an officer to use excessive force. Yet footage from a camera could hurt your case if you appear more violent or out of control than you remember.

On December 9, 2014, the Sonoma County Board of Supervisors approved a $1.2 million contract to outfit all county’s sheriff’s deputies with lapel cameras for 5 years. Current policies allow deputies to deactivate their cameras at any time they believe the use of the camera is unnecessary.

If you need a skilled criminal defense attorney, call Gabe Quinnan at (707) 540-2356. Gabe Quinnan is an experienced and determined criminal lawyer who is able to analyze the footage from a police body camera and determine whether it can help your case. Gabe Quinnan is available to represent you if you live Sonoma, Lake, Mendocino, or Marin County.

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Prop 47 Santa Rosa Lawyer Reduction

See If Your Felony Can Be Reduced to a Misdemeanor and You Can Get Out of Prison:
Recent Changes Because of Proposition 47

colorfulhandcuffsIf you were recently convicted of a property crime for $950 or less or possession of an illegal drug for personal use, think of calling Gabriel Quinnan, skilled criminal defense attorney. He can assess your case to help you determine whether you are eligible to have a felony offense downgraded to a misdemeanor. He can also argue for your release from jail or prison.

In early November, California voters said yes to Proposition 47. This was a retroactive ballot measure meant to lower the state’s prison costs. The law covers shoplifting, theft, writing bad checks, forgery, and possession of stolen goods. Individuals without prior convictions for murder, rape, certain sex offenses, or certain gun crimes are eligible for sentence reduction and prison release.

A felony conviction negatively affects your chances for employment and housing. If you do not pay off a debt related to a felony conviction, this can negatively affect your credit score. Public defender’s offices throughout the state have been overwhelmed with Prop. 47-related requests. Your petition for relief may move faster through the criminal justice system if you hire a private attorney to research your background and assist with your paperwork.

Gabriel Quinnan is available to represent you in Mendocino, Lake, Sonoma, and Marin counties. He is a thorough, patient, and competent criminal law attorney who has defended individuals in cases ranging from burglary and robbery to drug possession and sales. Call at him in Santa Rosa, California to learn more about how he can help you.

 

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Jury trial nullification

Jurors: Do I Have To Convict?

colorfuljudgeThis is a question I am often asked by non lawyer friends called upon to serve as jurors. What if, after all the evidence is presented, you believe beyond a reasonable doubt that the defendant committed the crime as charged, but you still don’t want to convict? Surprisingly, this happens more often than you think.

Let’s examine the case of a hungry homeless man stealing a loaf of bread. After trial, it is clear that the guy did it. However, during the course of trial, you learn that the guy hadn’t eaten anything for days, that he suffers from a mental illness that deprives him of a job, and has no familial support of any kind. Clearly, there are some fairly serious sympathetic facts that do not technically relieve him of guilt. However, it puts you in the difficult position of heaping further misfortune on him if you were to follow the law.

At the outset, the judge and prosecutor will spend lots of time ensuring that you will follow the law, no matter what. You will see people being excused from the jury for equivocating on this issue. For example, lots of people believe drug offenses should not be crimes and will say so in court. They will be excused. Once you are empaneled on the jury, the judge will strongly emphasize many times that you must follow the letter of the law regardless of your personal feelings about the law you are supposed to uphold. All of that is smoke and mirrors.

The power of a jury to nullify law is based on a principle has been well-established in U.S. law. As early as the 1800’s, jurors refused to convict persons found in violation law prohibiting aid to fugitive slaves. During alcohol prohibition, as many as 60% of cases regarding alcohol possession and consumption were nullified at trial. Recently, there has been a similar increase in nullification regarding drug prohibition, particularly in the case of marijuana possession and cultivation.

Jury nullifications’ roots lay in the common law power of the people to act as the final say in the propriety of any given law. In the example above regarding the hungry man stealing food, one may condemn stealing as a general principle, but decline to convict as applied under specific circumstances. The reason for this is that there can be no panacea law that can account for every factual circumstance. Therefore, the power of jury nullification acts as the final “people’s pardon” in cases where it is deserved.

And, we know such power exists because there are no legal consequences against a juror who simply refuses to convict. Moreover, the defendant cannot be tried a second time if the jury unanimously votes to refuse to convict based on nullification. Therefore, a rule without consequence is no rule at all.

If you find yourself a juror (especially in one of my cases!) I strongly encourage you to include fairness in your ultimate decision in addition to the mandates of the law. And let not guilty be a serious option regardless of the technical legal analysis.

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