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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16089
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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.10 of a gm is such a minute weight is it resonable to make

Resolved Question:

.10 of a gm is such a minute weight is it resonable to make a mesdemeaner a felon over such a minute weight
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Daniel Solutions replied 4 years ago.
what is the state?
Customer: replied 4 years ago.
california
Expert:  Zoey_ JD replied 4 years ago.
Hello,

There has to be a cut-off point somewhere between a felony and a misdemeanor and the law provides for one. In California, the cut-off is 28.5 g. If the weight of what you possessed is 28.6 g, that would be felony weight, and the DA would be within his rights to charge you with and prosecute you for a felony.

You asked, on the other hand, whether that's reasonable. I think that is likely to depend on all the facts and circumstances of the case. If it were your very first contact with the system, for example, I suspect that the DA may be inclined to reduce it to a misdemeanor. If, on the other hand, you have a RAP sheet with a number of marijuana arrests, this might be the time that the DA would not want to do you any favors. A defendant's criminal history is just one factor that the DA would look at. Every case is in some way unique, so there are always others.

If you wanted to go to trial on this case, the state would have to call the chemist from the forensics lab who would tesitify to the analysis of the marijuana that was performed after the arrest, which, of course, would include the weighing of the substance. Your lawyer would get to challenge the accuracy of the weight on cross-examination of the chemist. He may be able to establish that there's a margin of error here that could very well make this actually weigh at or under 28.5 grams. If he creates some doubt as to whether this is felony weight, then a jury could only convict you of the misdemeanor

___________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your State for specific legal advice.

Edited by FranL on 6/1/2010 at 1:13 AM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16089
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
thank you you gave me a ray or hope.i have another question regarding change of venue.the police had a choice of were to book me.i believe they booked me where they could railroad me.the other courthouse would treat my case as a misdemener.at the time i had a medical condition that required attention.the police ignored this and booked me where there was no medical facility. the other jailhouse had a medical faclity.is this police miscoduct and grounds for change of venue
Expert:  Zoey_ JD replied 4 years ago.
Hello again,

Has a lab report come back, and does it show felony weight? If so, it's pretty likely they would book you where you could be prosecuted for what the evidence shows. It's not their call whether the case would get prosecuted as a felony or a misdemeanor. That belongs to the prosecutor.

Having said this, you may end up being able to proceed civilly against the police for misconduct and the denial of medical care if you have sustained damages. But based on what you're saying, it doesn't seem to me to be an issue of venue, and it's something that you'd need to consult with a civil lawyer about down the road. In the meantime, you could always file a complaint with Internal Affairs about this, and another one with your state Attorney General's Office, so that if/when you want to bring a civil suit, you're at least on record somewhere. Allegations of misconduct do get investigated, so even if you choose not to sue or discover you don't have a particularly good suit, you could still cause the police involved to be in some way sanctioned for what they did to you.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16089
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
thanks i would be happy if they were repriminded not interested in civil suit
Expert:  Zoey_ JD replied 4 years ago.
If all you want is to get the police reprimanded, write to the State AG's Office alleging misconduct. In most states you can do that online. File a complaint with Internal Affairs, and also if there's any other type of police review board, like a Civilian Complaint Review Board. It also wouldn't hurt to alert the ACLU to how the police treat people with medical conditions in your town.

Good luck!

Edited by FranL on 6/1/2010 at 3:12 AM EST
Customer: replied 4 years ago.
what resons can a defendent have for a change in venue
Expert:  Zoey_ JD replied 4 years ago.
Basically, you'd have to show that you couldn't get a fair and impartial trial in the county that has jurisdiction over the case. Your facts don't make out a venue issue. The same police would testify against you no matter where you were tried. It's whether you could get a fair and impartial jury. Unless yours is a serious press case with lots of media coverage or something along those lines, you're probably not going to be able to mount a successful challenge to the venue. PC 1033-1038

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16089
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
the head proscuter at san fernado court is a d---- van nuys court a few miles away would treat my case as a misdemener.i have no grounds for change of venue,but if i knew of some i would have them. courts are in same county
Expert:  Zoey_ JD replied 4 years ago.
Have you appeared on this case yet?
Customer: replied 4 years ago.
yes
Expert:  Zoey_ JD replied 4 years ago.
What stage of the proceedings are you? Has your case been indicted? This was not supposed to be an answer but a question. Please do NOT accept it.

Edited by FranL on 6/1/2010 at 4:09 AM EST
Customer: replied 4 years ago.
i pleded no contest on 5/26 to felony possesion of concentraded mariyuana hash with 1 year probation then it turns into misdemener.i felt hurried and presured and i was heavly medicated due to ptsd .tommorow i plan on changing my plea and go to trial which my pd said i can do .this case should have been a midemener but some how what weight 28 gms when i bought it turned into 28.6 gms in 1 hour. i do have a proir of misdemener possesion 8 years ago.but no other convictions
Expert:  Zoey_ JD replied 4 years ago.
If you haven't been sentenced yet, the judge could let you take your plea back. They don't have to, and some won't, but if your lawyer seems to think that the court will let you do that, he'd probably know. The fact that you were on heavy meds will help.

But -- and just something to think about -- if you stick with the plea (unless you think you won't be able to finish a year of probation without getting in some kind of difficulty) -- you've got a guaranteed misdemeanor which will be expungeable in your state. If you go to trial with the defense you're talking about, you're essentially asking to be convicted of the misdemeanor. True, you could get acquitted of all charges. You haven't discussed the rest of your defense. But, if you beat the felony, and get convicted of the misdemeanor, at best you'll end up on probation anyhow, and you do risk jail.

I'm throwing this out there for you to think of, because you ought to have a very serious talk with your PD before you try to take your plea back. Make sure he thinks you have a viable defense not just to the felony charge but to the possession itself.

It's almost 1 AM here, so I'm turning in. But if your case is on tomorrow, I wish you good luck with it, whichever way you decide.

Goodnight.

Customer: replied 4 years ago.
thanks for your advice my pd gives the same advice i'll probaly take thanks again

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