Common Misconceptions Regarding Drug Related Charges in California
Interviewer: What kind of misconceptions do you see people have about possession and intent to distribute?
William Kroger: As far as misconceptions in California there are a lot because people think that they can pretty much get away with anything, if they're a medical marijuana patient.
Interviewer: Your clients that come in, what do they tell you that that's not the case, over and over.
William Kroger: Over and over again, people think that if they have paperwork if they go through a doctor and a doctor says they can grow a hundred plants or whatever, they can grow them legally but under the state law you can't. This recent case law, they say you can't even sell to dispensaries, but we've been able to prove in medical marijuana cases we've had quite a few cases where people will come in and they've had the right paperwork, and they've had 20 pounds or more, sometimes we even get there marijuana back, in one case our client was given back 60 pounds.
Medical Marijuana Patients Can Legitimately Possess a Certain Amount of Marijuana
In some cases we get the marijuana returned to them from the court. In other cases they're happy enough getting the charges dropped. So we put together a nice presentation for the district attorney or for the detectives who are investigating the case. We'll show them that our clients are actually legitimate marijuana patients and the amount they have is something that's reasonable for what their medical reasons are.
Interviewer: Anything else that people are misinformed about?
William Kroger: Well the law in California is just so grey, nobody really knows what is up and down and things change on a weekly basis. In Los Angeles there are probably about 2000 places that sell marijuana at store fronts and out of 2000 a hundred or so are actually compliant with the city regulations.
Medical Marijuana Card Holders are Mostly Misinformed Regarding Their Rights
Interviewer: Of the cases you get, are most of them now medical marijuana card holders or are they people that use it anyway and don't care about getting the card.
William Kroger: Mostly card holders that have a little bit more than they are supposed to have, or maybe they'll have some money on them or they'll have a scale on them, or growing a little bit too much. Then the police will come in and they'll have to prove that they are legitimate patients.
Interviewer: Do you think it is emboldening people that this medical marijuana, is making them careless and thinking I've got a card and everything is fine.
William Kroger: Absolutely and then they get wrong advice from lawyers that really don't know the law.
Common Client Mistakes Detrimental to Achieving a Favorable Outcome in a Drug Related Case
Interviewer: Any common mistakes you see people make that makes the case worse. Or causes them liability in the first place?
William Kroger: Some clients give statements to the cops, once a statement is given it is very hard if not impossible to undo. A lot of times what they will do; they'll separate the marijuana by different strains or different types or they'll carry hash and wax or oil or something and they'll have separate packages. When you have separate packages and you pull them over the police are going to think; hey he's got separate packages, that's because he's selling it to different people. So that's a real common mistake. Then a lot of times people will have a good deal of money on them and it's not good for you to travel around with marijuana while you've got a bunch of money in your pocket.
Interviewer: How much is a lot of money, when they consider tying it to the drugs.
William Kroger: I've seen as little as $200. Our clients are very diverse so we have had clients with minimum amounts like $200.00 and clients that have had millions of dollars. So I've seen it all over the place.
Treatment of Alleged Drug Offenders in the Courtroom
Interviewer: How are people treated in court depending on the type of drug that they are involved with. Are marijuana offenders treated a lot better than cocaine or meth?
William Kroger: Well you're talking about treated by the court, like the judge and the district attorney. I think they're pretty much all similarly treated the same way, whether you're charged with coke or heroin or marijuana. A lot of the district attorneys and judges are kind of sick of prosecuting marijuana cases, there are times they will treat those people a little lighter than if you have ounces of cocaine, or pounds of cocaine.
The DEA and Other Federal Agencies are Actively Trying to Dissuade Manufacture of Synthetic Marijuana
Interviewer: Are there any drugs that they've had task forces on that they really actively trying to dissuade people from being involved with?
William Kroger: Right now manufacturing synthetic marijuana seems to be something that's very upfront in the DEA and federal court system.
We've had a lot of synthetic marijuana manufacturing cases and synthetic marijuana sales cases as well. That's something I've done in the federal courts across the country. It is a very specific area of law because it has a lot to do with the Analogue act and what happens when people manufacture synthetic marijuana. Then in the particular chemical they're using becomes illegal, it changed to a different chemical compound and then the government will say well it's similar to the one that's illegal under the controlled substance act, therefore it is an analogue
Synthetic marijuana is very much to the forefront but it's very convoluted the law and it very confusing to most people, we definitely have a very good grasp on it. We've handled so many of them.
Interviewer: I guess with the number of chemicals involved that's a very highly specialized area.
William Kroger: It is, when I became a lawyer I didn't know I have to become a chemist and a biologist at the same time.
Marijuana Cases are Fairly Common but Abuse of other Drugs is also Prevalent
Interviewer: Are most of the cases you deal with are marijuana related?
William Kroger: I would say a good deal with marijuana but we deal with all drugs, right now I've got heroin cases, cocaine cases, ecstasy cases, Xanax cases, mushroom cases, synthetic marijuana, marijuana cases and hash cases, we've got them all right now.
Interviewer: What are the ones that come up more often than other, right now?
William Kroger: Marijuana and cocaine come up quite a bit. Heroin is one that is more rare, it's not seen as much, but marijuana and cocaine definitely are the two big drugs and methamphetamine is right up there too.
Analytical Testing of Drugs Can Cause the District Attorney to Delay Filing Charges
Interviewer: You're allowed to be charged with either drug possession or intent to sell or et cetera but don't they have the tests whether to see it or validate what it is?
William Kroger: That is a big problem right now in Los Angeles because there are one or two labs at the most in L.A. that test drugs. So I can have a client arrested in May and they won't have the drugs tested by August; and they were supposed to be in court in June. So you've got these three or four months while the drugs are out for testing that they haven't proven what they are, through chemical analysis so the district attorney can't charge that person. So we have quite a few cases right now pending where we are waiting for the test results.
Interviewer: Is there anything you can do or do just have to wait for the test result that delays things?
William Kroger: We have to wait for the test result and that delays it. But if it is something that necessary it can be misdemeanor or a felony. If you are going to charge somebody with methamphetamine and then it takes more than a year to test the methamphetamine, we file a motion saying to delayed prosecution and we'll probably win it.
The Statute of Limitations in Filing Misdemeanor Charges is an Year and for Felony Charges is the Maximum Amount of Time a Person Can Spend in Jail
Interviewer: So there is a requirement to prosecute someone in a period of time.
William Kroger: Well with a misdemeanor it's a year, with a felony the statute of limitations it's the maximum amount of time a person can spend in jail. So if they are facing a possible four years sentence then they have four years to file the charges against you.
Defense Counsel May Utilize Independent Drug Testing In Order to Exonerate
Interviewer: The drug testing itself you have a lab analyst or are there other things that you can attach if the lab goes wrong?
William Kroger: Well we occasionally do, it's more in DUI then drug testing, but it does happen in drug testing, right now we've got a case where our client says it was methamphetamine which could be a misdemeanor and not a felony. But the police maintain it was cocaine which is always a felony. That would be a good example; we're going to have a sample of it picked up by our lab and tested for us independently and let us know what their conclusion is.
A Wet Marijuana Plant Weighs a Lot More than a Dry Marijuana Plant
Interviewer: How about in terms of the weight, what if a big quantity of marijuana was seized, would it dry out over time and the weight of it would become less, or do any of these charges break down?
William Kroger: A good example of that would be when they arrest somebody for cultivation of marijuana, they pull the plants out of the ground and they weigh them while they're wet. So obviously a wet marijuana plant is going to weigh a lot more than a dry marijuana plant. What we typically do is we go with our experts to view the evidence; we also bring a scale and weigh it. We typically do that a couple of months after the case is filed, so by that time it's probably dry. The true weight will be there, which is usually a lot less than in the report.
Interviewer: Do they always let you look at the evidence?
William Kroger: We will file a motion with the court to order the police to allow us to look at it. On occasion, it will be destroyed and in that type of instance, we will move to dismiss the case.
The Majority of Drug Related Charges Result From a Traffic Stop in California
Interviewer: You said most cases come from a traffic stop. It seems like the search is the most important part of the whole thing. How do searches happen and can you say no? How does that work?
William Kroger: Well you can say no but the chances are likely that they'll find a reason to search you anyway. Or they'll hold you there for a reasonable amount of time until they get a canine dog to come and smell your car. Once a canine dog smells your car that's probable cause, for them to do anything.
Interviewer: What would recommend when you stop, just tell them what you have and just …?
William Kroger: Nope because if you tell them what you have they're going to think it's illegal and the key words; “I don't consent to a search.”
Police Officers Can Come up With a Variety of Reasons to Search a Car if an Individual Does Not Consent to a Search
Interviewer: If you say I don't consent to a search, what happens typically, do they say; you'd better let us do it or we are going to arrest you. What happens?
William Kroger: Well the problem is if that they'll probably are going to arrest you and if they do arrest you then more than likely they're going to have some type of probable cause. At the very least they will have probable cause in the report that they write, stating that there was some reason that they could search you. Maybe you had furtive movements maybe when they came up they thought you were hiding a gun or something like that or they smelled marijuana. Or your car wasn't registered and they can tell whether you don't have a valid license and they tell it. There are a lot of different reasons they can come up with why they can search your car.
If Police Have Probable Cause to Search a Car, they can Legally Search the Entire Car
Interviewer: Are there places in your car where they are allowed to search and places where they are not? You know in plain sight, you've got the glove box locked up.
William Kroger: If something is in plain sight, that gives them a reason to search your car, but under the case law in California, there is a case Acevedo versus California, where if they have probable cause to search your car, they can search the entire car and anything else in it.
Interviewer: Okay, so even if there is something in the trunk locked up and all that it doesn't protect you.
William Kroger: No it doesn't protect you. They can go and open the trunk; they can go into the compartments in the floor. They can look wherever they want once they have probable cause.