DRIVING UNDER THE INFLUENCE.  VC 23152(a)


Vehicle Code 23152(a) VC is the California DUI law that makes it a crime to operate a motor vehicle "under the influence" of alcohol. "Under the influence" means that your physical or mental abilities are impaired to the extent that you can no longer drive as well as a cautious sober person.1 In California, motorists can be prosecuted under this statute even if their blood alcohol concentration was below 0.08%. 

First, second and third offense Vehicle Code 23152(a) charges are prosecuted as misdemeanors in California. Penalties for a DUI conviction include misdemeanor probation, fines, DUI school, a drivers license suspension, and in some cases jail time and a requirement of installing an ignition interlock device on the offender's vehicle. 

Vehicle Code 23152(a) reads: "(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle."

VC 23152(a) DUI is the "subjective" standard for DUI. In contrast, Vehicle Code 23152(b) sets forth the "per se" definition of DUI, which in most cases is driving with a blood alcohol content (BAC) of 0.08% or higher.

Vehicle Code 23152(a) VC is the California DUI law that makes it a crime to operate a motor vehicle "under the influence" of alcohol. "Under the influence" means that your physical or mental abilities are impaired to the extent that you can no longer drive as well as a cautious sober person.1 In California, motorists can be prosecuted under this statute even if their blood alcohol concentration was below 0.08%. 


The prosecution will prove this by calling the arresting officer to testify at trial, that you were driving erratically, unable to drive, had red watery eyes, dilated pupils, slurred speech, smelled alcohol on your breath and other objective signs of alcohol toxicity.  

 






CALIFORNIA PROPOSITION 47 AND IT'S IMPACT


California Proposition 47, the Reduced Penalties for Some Crimes Initiative, was on the November 4, 2014, ballot in California as an initiated state statute. The measure was approved. 


The measure required felony convictions reduced to misdemeanors for the following crimes:

Shoplifting, where the value of property stolen does not exceed $950
Grand theft, where the value of the stolen property does not exceed $950
Receiving stolen property, where the value of the property does not exceed $950
Forgery, where the value of forged check, bond or bill does not exceed $950
Fraud, where the value of the fraudulent check, draft does not exceed $950
Writing a bad check, where the value of the check does not exceed $950
Personal use of most illegal drugs

In January 2015, it was announced that as many as 1 million Californians could be eligible to change past felony convictions on their records under Proposition 47. 


No one is automatically released from state prison because of Proposition 47. The new law allows people who are already serving a felony conviction for these crimes to petition the court for resentencing. In addition, Proposition 47 allows a person who has completed his/her sentence for the specified offenses to file an application before the trial court to have the felony conviction reduced to a misdemeanor.

Not all offenders can petition the court, even if their convictions were felonies that are now misdemeanors. Offenders cannot petition a court if they have previous convictions for: sex offenses including rape, child molestation and other sex 



SHOPLIFTING THEFT AND ITS DEFENSES
General Defense’s for theft
Specific Intent

Every theft requires the defendant to have specific intent to commit the theft.  If the prosecution fails to prove that the accused had the required specific intent then he is entitled to a verdict of not guilty.

Asportation

To constitute a completed theft, the property must be
asported or carried away.  Asportation requires three things:

(1)    The goods are severed from the possession of the owner,
(2)    The goods are in the complete possession of the thief or thieves, AND
(3)    The property is moved, however slightly.

Therefore, if the property or item was never taken from the owner, or ever in complete possession of the defendant, or the property was never moved by the defendant, there cannot be a completed theft.

Claim of Right

If a person actually believes that he or she has a right to the property even if that belief is mistaken or unreasonable, such belief is a defense to theft.

Defendant Actually Owned Property

A defendant cannot be charged with larceny if the property was actually owned by the defendant.

Theft by False Pretense- California Penal Code Section 484

If false pretenses cannot be proven, the defendant cannot be charged with theft by false pretense.
•    It is a defense to this charge if the defendant gave information that he or she did not know was false.
•    It is a defense to this charge if the defendant had a reasonable belief of a misrepresented statement.
•    It is a defense to this charge if the defendant did not have an obligation to give information, and the defendant is accused of withholding information that he or she was obligated to give.
•    It is a defense to this charge if the defendant made a promise and intended to do what he or she promised, even if the defendant ultimately did not do what he or she promised.


MEDICAL MARIJUANA DISPENSARIES AND FEDERAL LAW

 
The United States Controlled Substances Act

The United States "Controlled Substances Act"...the nation's controlling federal legislation regarding drugs...classifies marijuana as a Schedule I drug.5 When a drug is listed as "Schedule I", it means that the drug has

1.    a high potential for abuse, and

2.    no currently accepted medical use in the United States.6

This means that even if you are properly using, growing, cultivating or distributing medical marijuana in California, you are nevertheless violating federal law.  As a result, if you want to open a marijuana dispensary in California, you must be prepared to deal with this dichotomy. In 2009 and again in 2013, the U.S. Department of Justice issued guidelines to federal prosecutors that said their priority should include eight significant issues raised by drugs, including the operation of drug cartels, narcotics activity leading to violence and preventing drugs from being provided to minors. Lesser priorities, wrote Deputy Atty. Gen. James M. Cole in 2013, should be left to enforcement by the state.
 


California

Proposition 215, passed in 1996, was the nation's first medical marijuana law (California Bureau of Medical Cannabis). Eligible patients must present a "written or oral recommendation" from their physician. Guidelines passed in 2003 set limits for possession and cultivation of marijuana by eligible patients and their caregivers. Although the state issues medical marijuana identification cards, registration is not mandatory for compliance.

Illnesses: arthritis; cachexia; cancer; chronic pain; HIV/AIDS; epilepsy; migraine; multiple sclerosis (physicians may recommend medical marijuana for other illnesses)
Possession: 8 ounces of usable marijuana (or more, if a doctor recommends it)
Cultivation: Six mature or 12 immature marijuana plants (some counties allow a grow space of up to 100 square feet)
Dispensaries: State-licensed dispensaries must not be within 600 feet of a school and cannot operate for a profit but otherwise are regulated at the local level
Statute: Health and Safety Code § 11362.5.


Proposition 64


Proposition 64 legalized the recreational use of marijuana for adults aged 21 years or older, permitting smoking in a private home or at a business licensed for on-site marijuana consumption. Smoking was to remain illegal while driving a vehicle, anywhere smoking tobacco is, and in all public places. Up to 28.5 grams of marijuana and 8 grams of concentrated marijuana are legal to possess under this measure. However, possession on the grounds of a school, day care center, or youth center while children are present remains illegal. An individual is permitted to grow up to six plants within a private home as long as the area is locked and not visible from a public place.















4. Engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, disturbing the peace of the other party.

The act(s) of abuse/violence must be recent, within thirty days, and the batterer must be a spouse ex-spouse, boyfriend/girlfriend, ex-boyfriend/ex-girlfriend, someone with whom the victim has or has had a dating relationship, an immediate family member (mother, father, in-laws, siblings, adult children), or a person with whom a party has a children together. A victim that is a target of abuse but does not have the necessary relationship to the batterer may file a civil harassment restraining order, discussed below.

The restraining order can include the following: restraints on personal conduct by the
batterer; orders for the batterer to stay-away from the victim's home/work and/or children's
school; orders for the batterer to be removed from the residence; child custody and visitation and 
and support orders and other miscellaneous orders.

A violation of the restraining order will often lead to an arrest which is then prosecuted by the City Attorneys Office. The Los Angeles city attorney follows a no drop policy. If there are visible signs of bodily injury, even a scratch, slight bruise, skin discoloration, a tear or a missing shirt button can often result in a felony battery arrest. Under those circumstances the matter is prosecuted by the District Attorneys office. At the Law Offices of Allen Farshi, we have been representing clients in such matters for the passed nineteen years.  Even In instances were a permanent restraining order (3-5 years) has already been issued, we may be still able to modify the restraining order. Under proper circumstances, the restraining order can even be terminated.  





-Probation violations
-Early termination of probation
-Modifying probation

-Attempted murder
-Conspiracy charges
-Attempt crimes
​-Bail Issues

-PC1275 hold and Bail reductions
-Proposition 47 matters
-Record Expungement
​-Medical marijuana dispensary issues
​ and Federal prosecution.






DOMESTIC VIOLENCE RESTRAINING                      ORDERS
California Penal Code Section 273.5 deals directly with injuries caused by an intimate partner; however, there are many other crimes that occur when violence enters an intimate relationship. For example, Penal Code section 243(e)(1) [Battery against an intimate partner]; Penal Code Section 646.9 [Stalking]; Penal Code Section 245 [Assault with a Deadly Weapon]; Penal Code Section 602 [Trespass]; Penal Code Section 459 [Burglary]; Penal Code Section 594 [Vandalism]; Penal Code Section 273.6 [Violation of a Domestic Violence Protective Order].


Domestic violence cases are most often reported by neighbors, who initiate the matter by calling 911. The 911 callers audio recording, often becomes critical evidence and is presented by the prosecution at trial. On some occasions, the complaining witness has a history of prior physical abuse by the domestic partner. In many cases, the emotional bond, is still strong and may induce the victim to recant or even bail out her assailant from jail. However, should the prosecution chose to do so, the prosecution can still call a psychologist to the stand who will  testify, that the witness recanting was motivated by emotions not fact, and that the jurors should convict.  

Where facing sexual assault or battery charges, in many cases the complaining victim will attempt to obtain a Domestic violence, civil harassment restraining order or emergency protective order while the police department investigation is pending. In those instances It is critical to immediately contact an experienced attorney to represent you at the hearing. Damaging testimony you may give in your defense, at the restraining order hearing can often be admitted against you in the pending criminal case to follow. 


A restraining order is a Court order issued to prevent the recurrence of acts of abuse by a batterer. Under the Domestic Violence Prevention Act, abuse is defined as any of the following:

1. Intentionally or recklessly causing or attempting to cause bodily injury.
2. Sexual assault.
3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another. 



-Burglary
-Grant theft
-Robbery
-Criminal trespass
-Vandalism
-Insurance fraud
-Forgery
-Money Laundering
-Selling Stolen Art
-Corporate White Color Crimes
-Professional license revocation issues
-Unlicensed home editions
-Counterfeit sales
-Landlord Reap cases

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In order to convict you of driving under the influence, the prosecution will have to prove the following two elements: 1. that you were driving a vehicle and 2. You were driving under the influence. Circumstantial evidence of your driving and a slight movement in the presence of an officer is sufficient to prove the second element Henslee v. DMV (1985) 168 Cal.App.3d 445,450-453.


The prosecution will prove this by calling the arresting officer to testify at trial, that you were driving erratically, unable to drive, had red watery eyes
dilated pupils, slurred speech, or that the officer smelled alcohol on your breath. Besides objective signs of alcohol toxicity, the officer may testify that you failed the field sobriety test. 


Penalties if convicted.Ist, second and third DUI offenses are misdemeanors. Fourth and subsequent cases are charged as a felony DUI case. The penalties for misdemeanor cases are:


1. Informal probation for 3 to 5 years
2. County jail time 
3. A bases fine of $390 plus penalty assessments 
4- DUI Class attendance and completion
5. MAD class attendance
6. Ignition interlock installation
7. A five-month drivers license suspension by the DMV.


Note: For out of state residents who are facing a DUI conviction in California,  we can negotiate to have them complete an online DUI class, or their resident states functional equivalent. For Canadian citizens caught while driving under the influence in California, we have negotiated similar but different arrangements. 


If you are arrested and charged with driving under the influence, it is important that you immediately call us for an initial office consultation. The Law Offices of Allen Farshi, has two offices.  Los Angeles Tel (310) 882 6500.  Sherman Oaks. Tel (818) 666 3183.




offenses; murder, attempted murder and solicitation to commit murder; assault with a machine gun on an officer; or any serious or violent crime punishable by a life sentence or death are not eligible to petition a court for resentencing under Proposition 47. Any inmate required to register as a sex offender is not eligible.


The process for resentencing:

-Inmates need to file a petition for a recall of sentence with the trial court. -  Inmates can file an application with the sentencing court to have a previous conviction designated as a misdemeanor.
-The county court will determine whether the inmate’s criminal offense history makes him/her eligible for resentencing.

Under the new law, the court is required to resentence eligible offenders unless it determines that resentencing would pose an unreasonable risk to public safety, as specified.

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.
Offenders whose requests for resentencing are denied by the courts would continue to serve their terms as originally sentenced.





Theft by Trick

Never using deceit or fraud to obtain the property or item is a defense to a charge of theft by trick. Obtaining the owner’s consent to use the property for a specified purpose while intending to use it in a different way constitutes fraud or deceit.If the owner intended to transfer ownership of the property or item, this can be used as a defense to a charge of theft by trick.

Theft by Embezzlement
Permission

If the defendant had permission to convert or use property for his or her own benefit, whether through bylaws or by anyone who has the power to grant such permission, the defendant cannot be charged with theft by embezzlement.

Alter Ego Defense

A partner can be guilty of embezzling from his own partnership. The Penal Code requires that the property be ‘of another’ for larceny, it does not require that the property be ‘of another’ for embezzlement.

Grand Theft Defenses
Authorization of Use

A good faith belief in acting with authorization to use the property is a defense.  The jury will consider all the facts known to the defendant at the time the defendant obtained the property, along with all other evidence in the case.  The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable.

If the property does not fall under any definition of grand theft under California Penal Code 487, any theft crime committed cannot be grand theft.  However, the defendant may still be convicted of petty theft.  Petty theft is any theft that is not grand theft.

Notes:
What things are not a defense to theft charges
1)    No Need to Use or Benefit From the Property Taken
It does not matter that the person taking the property -does not intend to use the property or benefit from it; he or she is guilty of theft if there is intent to permanently deprive the other person of the property.

Possession
2)    The victim of a theft does not have to be the owner of property only in possession of it.

3)    Intent to restore the property to its owner is not a defense.


In order to open a dispensary in accordance with California law, there are specific steps you should follow. Some of these include (but are not limited to):


Classifying the business as a non- profit organization.

Follow state and Federal law protocols required from any new business
Forming and maintaining good relationships with local, State government
and law enforcement agencies.


Failure to abide by those rules will subject you to a high risk of prosecution for violating California marijuana laws. At the Law Offices of Allen Farshi, we can advise you on the laws and procedures to obtain a marijuana dispensary license


Will banks accept business from marijuana firms?


Banks are regulated by the Federal government. One significant problem in states that have legalized marijuana is that banks have generally refused to handle the money generated because the drug is still illegal on the federal level. Banks usually cut off services after routine audits determine money is coming from drug sales.

Will marijuana businesses be able to advertise over the airwaves using Broadcast television and radio stations ?

All broadcasting is regulated by the federal government. Because of federal regulation, television and radio stations in other states where cannabis is legal have generally not accepted marijuana ads, and their attorneys have advised them not to. Proposition 64 includes a provision restricting TV and radio ads so they are not targeted to minors. "Proposition 64 can't change federal law and federal prohibitions remain in place. 


Marijuana Dispensary Start-Up Costs

According to industry analysts, opening a legal dispensary costs anywhere from $50,000 to $500,000, depending on where you open the facility and its scale. These costs include (but are not limited to): your application fee to the state / local city /county, building the store and purchasing the appropriate equipment, cultivating the marijuana, and consultations with legal and financial advisors. There are a variety of companies that will build a "turn-key" dispensary for you, which literally means that all you have to do is "turn the key" to open the door, and the establishment is completely ready for you to run.  Before you purchase this type of dispensary, you should consult with a California marijuana attorney to ensure the accuracy of the company's information.











CRIMINAL DEFENSE ATTORNEY
​DOMESTIC VIOLENCE ATTORNEY


Tel: (310) 882 6500   11620 Wilshire Blvd. Ste 900. Los Angeles
Tel: (818) 666 3183   
15303 Ventura Blvd. Ste 900. Sherman Oaks

Law Offices of Allen Farshi

 

CRIMINAL DEFENSE

California's prosecutorial process is notoriously intimidating,  fast-paced and disruptive. Prosecutors are often preoccupied with advancing careers. Bragging rights are based on convictions. Matters not reflected in a police report are where an accused's defense often lie. Yet facts favoring the defense, are often purposely omitted and constitutional rights violated. Defense witnesses, are often considered biased and eyed with suspicion. In other cases, they are treated as a mere inconvenience. The prosecutions mindset is often "Go to trial if your client is innocent". Hastily accepted plea offers and California's overcrowded prisons are a testament to this phenomenon.

Against this backdrop, Mr. Farshi, has successfully defended and tried over one thousand criminal cases in the past nineteen years. When a trial is anticipated, we can dispatch private investigators, interview witnesses, employ independent forensic labs, psychiatrists, and expert witnesses.  At the Law Offices of Allen Farshi, we have the unique ability to arrange third party financing of a misdemeanor case through trial. In felony cases, we offer competitive flat rates, payable with major credit cards. However, those charged with a felony, need not despair. Although the path to Jury trial is fraught with uncertainty, there is still a silver lining. Unless the felony is of a serious violent nature, involves drugs, the accused has serious priors, or a professional license ia at stake, we can often still plea bargain for probation, and skip trial. It's significance, is that for those individuals wanting to avoid the risks, expense and anxiety associated with trial, we can plea bargain for house arrest or work furlough. Even private jail may be an option.
Any residual conviction record can often be expunged.

Our guiding principal, is client loyalty, and the mindset that each day in court, is an opportunity to earn your trust.
Call now to reserve your free confidential consultation.  


WEBSITE CONSTRUCTION IN PROGRESS



At the Law Offices of Allen Farshi, we have successfully tried the following cases in the past nineteen years.






-DUI
-Drug Possession
-Possession with intent to sell
-Juvenile Cases
-Sealing Juvenile records
-Domestic Violence battery
-Restraining order and stay away order modifications
-Assault and Battery
-Battery with GBI Enhancements
-Firearm, related Crimes
-Restoring gun rights
-Rape and other sex crimes
-Prostitution and Solicitation
-Hit & Run
-Vehicular Manslaughter