The Government has introduced its Voluntary Disclosure Program beginning April through September 22, 2009. The purpose of this Program is to identify holders of foreign bank accounts (offshore) and substantially increase the Government’s tax revenue. It seems that the IRS is gearing towards making certain that those under its jurisdiction comply with the requirement of disclosure of any interest (financial interest, or signature, or other authority... 31 CFR § 103.24) over a bank, security or any other financial account in a foreign country

Unfortunately, as the Government runs out of money, it seems inevitable that certain penalties will make their way to the public. In this case, the penalties for non-compliance are egregious. It seems that these penalties are designed to fill the Government’s need for increase in revenue due to the recent economic downturn.

Should the IRS feel that your failure to comply is “non-willful”, then the penalties imposed can be as high as $10,000 per violation. However, a “non-willful” violation will only be determined when a person marked the appropriate box on Schedule B, reported any income from foreign accounts, did not have any prior FBAR filing violations and cooperated with the IRS.

Civil penalties for “ willful” violations can go up to the greater of $100,000 or 50% of the amount in the foreign account at the time of violation. Moreover, the IRS can impose these penalties up to 6 years from the time of each violation.

In addition to the aforementioned civil penalties, criminal penalties for violating the FBAR disclosure requirements can be from $250,000 to $500,000 in fines and/or 5 to 10 years imprisonment.

The FBAR is a proposition that does not have any positive aspects for taxpayers. Failure to comply with the FBAR disclosure requirements carries with it severe penalties (50% of the account balance for each of the previous 6 years). On the other hand, voluntary disclosure carriers with it a small yet significant penalty (20% on the last year’s balance on the foreign account, plus back taxes and penalties for the same).

It is our opinion that the Government is aggressively going after those with foreign bank accounts. The IRS will consider the FBAR as a new tool at increasing the Government’s revenues. Treading though these waters will require complex analysis on a case by case basis. Call us or an attorney you trust for a consultation.

Pursuant to SB 420, a medical marijuana patient may have up to 8 oz of dried or concentrated cannabis in his or her possession at any one point in time. Furthermore, if a medical doctor feels that a particular patient needs more than 8 oz, the doctor may so prescribe. In Bill’s case, he was well within the limits of the law. Why then did the sheriff arrest Bill? To answer that question we need only recall the distrust the Law Enforcement community has toward medical marijuana and patients. Many officers feel that the District Attorney’s Office is better equipped to determine whether the person arrested was in fact a medical marijuana patient and whether he was entitled to possess the cannabis.

On the one hand, this way of thinking makes sense. The officer can not determine at the scene whether this presciption is legitimate or a fake. Essentially, he or she pushes this determination up the chain to the prosecutor, where a potentially more thorough investigation can take place. On the other hand, as a result of the arrest, many legitimate medical marijuana patients have to spend time in custody, have to spend money on bail and money on an attorney. Their lives are completely and utterly disrupted. That doesn’t seem fair. After all, police officers do not arrest people who are in possession of other prescription drugs. Why should marijuana be treated any differently than any other prescription medication? Some might argue that the medical marijuana prescription is not trustworthy because it is easily forged. Isn’t it true, however, that a person can create a fake pharmacy label using a computer just as readily as he or she can create a fake medical marijuana prescription. Others may say that the medical doctor writing the prescription is not doing a thorough enough examination of the patient. But doesn’t this reasoning apply to any doctor with respect to any drug prescription? Shouldn’t we then arrest everyone with drug prescriptions in order to check the legitimacy of each prescription? The answer is no, of course.

The reason police officers rarely question the legitimacy of a pharmacy label is because they trust and are used to the medical doctor writing a prescription for medicine and a pharmacy filling the order. They are used to seeing the label on a pill bottle. They themselves, just like the rest of us, have obtained medicine this way. The mechanism for obtaining medical marijuana, on the other hand is new, untested, untrusted, and has not been thought out completely. California medical marijuana laws are a definite step in the right direction. They need to be refined and expanded, however, before the mechanism for dispensing medical marijuana can compete for legitimacy with the mechanism used to dispense other prescription drugs. Likewise, the medical marijuana community needs to continue to work with Law Enforcement and nonusers in order to build trust in the legitimacy of the prescriptions and the necessity of the medicine itself.

If you have been arrested for possession, possession for sale, transportation, cultivation, or distribution of medical marijuana, you need to hire an attorney experienced in this area of the law. Please call us for a free consultation.

Before I answer this question let me tell you a little about the criminal process in California. There are two types of offenses. A felony is a crime punishable by a minimum of one year in jail, or $1,000.00 fine, or both. A misdemeanor, which is our example above, is a crime punishable by a maximum of one year in jail, or $1,000.00 fine, or both. In misdemeanor proceedings there are usually four stages: (1) arraignment, (2) pre-trial hearing, (3) trial, and (4) sentencing.

Let's go back to our example. You are in court. The judge tells you to enter a plea and then he'll allow you to find an attorney. If you ever find yourself in this situation please do yourself two very necessary favors: (1) ask for a continuance and (2) immediately go hire an attorney.

You can probably guess why you would need an attorney. Three years of law school and years of practical experience allow an attorney to determine whether the prosecutor has enough evidence to convict you, or whether your attorney can get an acquittal via trial or a dismissal via a motion to suppress evidence, for example. This is something a lay person will find very difficult to do without the proper training. It all boils down to experience.

An attorney also has an advantage in trying to negotiate a better settlement agreement with the prosecutor, should you decide not to contest the charges. This is so for two reasons. First, the attorney has no personal stake in the case and therefore can make an unbiased and clear assessment of the case, something that rarely happens when you represent yourself. Second, a prosecutor will be more receptive to the requests of an attorney, a colleague, as opposed to your requests if you represent yourself. Therefore, I highly recommend hiring an attorney, even if you will need to spend money. Your investment may just yield you a little bit of freedom.

But why a continuance, you may ask? Why can't you simply enter a plea of not guilty, as many courts tell you to do, and then go find an attorney? Here's why:

At the arraignment you have several choices. You can enter a plea of "not guilty," in which case the prosecutor will have to prove your guilt at trial. You can enter a plea of "guilty," or "no contest," in which case you give up your constitutional right to a trial and move on to sentencing right away. Another option open to you is to file a demurrer, a procedural device that challenges the validity of the complaint and may in some cases get you a dismissal.

After you are arrested and booked by the police your file and all of the evidence against you are shipped to the prosecutor who determines whether you have violated one or more criminal statutes. The prosecutor then prepares a complaint against you, which sets out the laws violated and the dates of these violations.

If the complaint is legally defective, a determination that only a trained lawyer can make, you will have the option of demurring to the complaint. If you are right, and the complaint is defective, the prosecutor will either amend the complaint to cure the defect, or dismiss the case if there is no possible way to modify it. Keep in mind, however, that if you enter a plea you automatically give up your right to demur to the complaint.

Recently I had successfully demurred to a criminal complaint against one of my clients. The demurrer was filed prior to the entry of plea. I argued that the defect in the complaint was not something the prosecutor could fix. The judge agreed with me. The complaint was dismissed. Case closed.

My advice therefore is this: if you do not have an attorney at the arraignment, continue this hearing and get one. Do not under any circumstances enter a plea without first obtaining the advice of an attorney.

Another difference between the two systems is the punishment given for the convicted offense. In a State system the judge has discretion to punish the convicted person as he sees fit, sometimes outside the guidelines set out in the violated statutes.

The Federal criminal system, on the other hand, has guideline sentences for each offense. Although these guidelines are no longer mandatory, the judge usually sticks with the guideline sentences anyway.

Let me give you an example.

Instead of reverting back to her old plan of paying cash, or finding another way around the problem, Alice prepared false income tax returns and presented them to a lending institution. She felt that she really did nothing wrong because she was going to make the monthly payments after all. It was not as if she was going to steal money from the bank. She did exactly what many in our community do.

As a result of these false tax returns she obtained the loan she wanted, purchased her new house and lived there happily for approximately six months, until she was arrested by the FBI for falsifying Federal income tax returns. A colleague of mine who represented Alice told me that she spend five years in a Federal prison.

Had Alice been processed through the Los Angeles Criminal Court system, for example, the California judge in Alice’s case would have had discretion to send her to prison for the same five years or longer, or in the alternative order Alice to perform community service, or a punishment somewhere in between the two extremes. In the Federal system, however, the United States Federal judge has a chart which tells him the punishment for this particular offense, Alice must spend five years in federal prison, no more, no less. Again these guidelines now are only advisory. Nevertheless they are almost always followed by judges.

This is one of the reasons, many consider the federal system to be very harsh and unforgiving. However, despite the severity of the federal system, people can still successfully defend themselves by not speaking with the police or the FBI without an attorney present, by properly preparing for trial, and by having a good Federal criminal defense attorney on their side throughout all stages of the criminal case.

Some people feel drunk after one drink, others only after one bottle. A common assumption made by many is that if they do not feel drunk, they can drive. That is a mistake. Contrary to what some may think, the law does not care whether or not you feel drunk. The only consideration in California, for example, is whether your blood alcohol level is above .08%. If it is, you are not allowed to drive. If you do drive in that condition and are stopped by the police, you may very well be arrested and later convicted for driving under the influence of alcohol or driving with blood alcohol level above .08%, commonly known as a DUI.

One drink equals approximately 28g. A male weighing 200 pounds will be over 0.08% blood alcohol level after 3-4 drinks, whether its beer, vodka or mixed drinks. Therefore, to be on the safe side if you weigh 200 pounds, 2-3 drinks should be your maximum, if you are about to drive. If you weigh less, drink less.

Be aware that alcohol usually leaves the blood stream at a rate of one drink every 1½ to 2 hours. So you may want to drink early and wait the time needed to get your blood alcohol level down below the California legal limit.

If you are the type that can not hold your liquor, however, and you feel drunk after a single drink then you shouldn’t drive after that drink. You may cause an accident regardless of your blood alcohol level.

Let me give you an example. One Saturday night Mike was driving home after a party at a restaurant in San Fernando Valley. He had a great time, saw all of his friends and raised his glass for every toast. He did not recall how much he had to drink, but he did not feel drunk at all. So he did not think twice before getting behind the wheel to drive home.

On his way home, however, Mike was stopped by the police for speeding. He was sure that he was not drunk and cooperated with the police to the fullest extent, submitting to the breathalizer test as well as the field sobriety tests [walking a straight line, touching one’s nose, and others] which demonstrate to the police your outward appearance of being intoxicated.

Unfortunately, tests showed Mike’s blood alcohol level exceeding the 0.08% limit.

What Mike did not know was that if the police suspected him of having a 0.08 percent of higher blood-alcohol concentration, he had the right to choose from among the blood and breath tests.

It is widely accepted that the blood test is the preferable of the two, and the easier to challenge in court. With that in mind, Mike should have chosen the blood test even if he felt that he was not drunk.

Mike also did not know that he should pay attention to the area where the field sobriety tests were administered, and to inform the officer if there was a problem. When asked to walk a straight line, Mike should have noticed that the ground was not even, and that the police car’s headlights were in his face making it difficult to correctly execute the test.

Unfortunately, Mike thought that cooperating with the police was beneficial to him. In this case it was not. What he should have done, was to let his wife drive, or to simply not drink at the restaurant.

How often do we act like Mike? Probably every time we are at a restaurant. We drink, we celebrate, we drive, and we get home without any problems. That one time that we get stopped by the police, however, may create a criminal record for an otherwise law abiding person. My advice is not to drink and drive, or to have another, who is sober, drive you home.

Remember this, there were 17,126 people killed last year in the United States in car accidents involving drunk drivers. One death, due to drunk drivers, every 30 minutes. Because of the high number of people killed every year by drunk drivers, the police and the court system deal very harshly with convicted drunk drivers, especially if the person has been convicted of a DUI on a prior occasion.