The experience of being charged with a crime and having to navigate the legal system can be overwhelming and confusing. If you or a loved one faces a criminal charge, you probably have numerous questions. McElfresh Law has combined this San Diego criminal defense FAQ to help answer some of the most commonly asked questions.

However, because each case is based on its own unique set of facts, laws, and evidence, McElfresh Law invites you to call for a free consultation to get specific answers about your criminal charge.

Medical Marijuana

  • Who can legally use medical marijuana in California?

    Under California’s Compassionate Use Act, passed by voters in 1996, it is legal to use medical marijuana if you are a qualified patient with a serious, debilitating, or terminal illness.
  • Can I be prosecuted for using medical marijuana? 

Recent reforms to California’s medical marijuana laws give immunity to prosecution to qualified patients and their designated primary caregivers.
  • Am I allowed to grow my own marijuana for medicinal purposes?

Individuals are permitted to cultivate marijuana for medicinal purposes under the Compassionate Use Act. State law allows a patient or caregiver to grow up to six mature or 12 immature marijuana plants. However, a San Diego city ordinance allows cultivation of up to 24 marijuana plants in up to 64 square feet of indoor space.
  • What kinds of medical marijuana businesses does California allow?Reforms to California medical marijuana laws in October 2015 created categories of medical marijuana business licensing. The state now allows businesses to engage in cultivation, manufacturing, testing, dispensing, distributing, and transportation of medical marijuana.
  • Why do I need a lawyer to start a medical marijuana business?Medical marijuana laws and regulations create a complex regulatory system. In order to ensure success in a license or permit application, a lawyer can best advise you how to ensure your application is thorough and complete, and that your planned business complies with legal and zoning requirements.

Marijuana and Drug Charges

  • Why did I get charged for possession of marijuana? I thought that wasn’t a crime anymore.

California decriminalized personal possession of marijuana. Possession of less than 1 ounce is a civil infraction punishable by a fine. However, possession of more than 1 ounce remains a crime and can be punished with jail time.
  • What are the possible penalties for a drug conviction in California?

The penalties for a drug conviction vary depending on the nature and amount of drug alleged to be in your possession. A San Diego drug defense lawyer can explain the penalty range you face based on your specific charge.
  • Can I go through rehab instead of going to jail for a drug charge in California?You may be allowed to complete a substance abuse treatment program for certain types of drug offenses under California Penal Code 1000 or Prop 36. A California drug defense lawyer can explain your options based on the circumstances of your case.
  • Can the state seize my property when I’m charged with a drug offense?

Your property may be subject to forfeiture when you are convicted of a drug offense, or when the property is alleged to have been connected to a drug offense — even if you personally are not charged with a crime. Some types of property may be exempt from asset forfeiture actions under California law. If the government is attempting to seize your property, a San Diego criminal defense lawyer can explain what you can do to keep your property.

Sex Crimes

  • Will I have to register as a sex offender if I’m convicted of a sex crime?

California requires that you register as a sex offender for most types of sex crimes convictions. Your best chance at avoiding having to register is to avoid a conviction, and your best chance at that is with the help of a skilled California sex crimes defense lawyer.


  • What is the legal limit for BAC in California?

The California legal limit for blood alcohol concentration is .08. However, you can face more severe penalties for a DUI conviction if your BAC is .15 or higher.
  • Can I get a DUI even if I was under the legal limit?

You can be charged with DUI even if your BAC was under .08 and there is evidence that you were driving while impaired, such as a police officer observing you swerving on the road, then pulling you over and noticing that your eyes are red, your speech is slurred, and you have the smell of alcohol on your breath. California’s DUI law says it is illegal “for a person who is under the influence of any alcohol beverage to drive a vehicle.” Under the influence can mean having a BAC under .08, but showing signs that your driving is affected by the consumption of alcohol.
  • What is a High BAC DUI?

 A High BAC DUI is when your BAC is .15 or above. It isn’t technically a separate type of DUI offense in California, but can result in enhanced penalties, such as increased jail time.
  • Will I lose my driver’s license if I get a DUI?

 If you are convicted of a California DUI, state law mandates that your driver’s license be suspended. The length of your suspension depends on factors such as prior DUI offenses or aggravating circumstances such as a high BAC.
  • Can I get a restricted driver’s license to drive to work if I get a DUI?

 You may have the option to obtain a restricted license that allows you to drive to and from work when your license is suspended for a DUI. You have to apply to the DMV, pay a license reissue fee, and show proof of insurance and that you have enrolled in a driving under the influence program. You are not eligible for a restricted license if you refused a breath or blood test. A San Diego DUI lawyer can discuss your eligibility and options for a restricted license and what you need to do.
  • Can I go through alcohol treatment instead of going to jail for a DUI?

Depending on the circumstances of your DUI charge, alternatives to a jail sentence may be available. You may be sentenced to probation, which often includes a condition that you undergo alcohol treatment or classes. You also may be required to perform community service or undergo house arrest and electronic monitoring. A California DUI attorney can explain the possible outcomes for your case and what you can expect as your charge moves forward.
  • What happens when you refuse a DUI breath test in California?

You have the option to refuse a roadside preliminary breath test, but if you refuse the evidentiary breath test after your DUI arrest, you do face penalties under California law. Penalties include an administrative driver’s license suspension and an enhanced jail sentence if you’re convicted of the DUI offense.

Traffic Offenses

  • Why do I need a lawyer for a traffic ticket?

A traffic ticket can have many long-term effects on your driver’s license, your insurance rates, or your employment if you drive for your job in any capacity, even if it’s just across town to meetings. It may seem simpler to pay the ticket, but it may cost you less in the long run to hire a San Diego traffic defense lawyer to fight your ticket and keep the traffic offense off of your record.
  • Can’t I just pay my ticket and forget about it?

Paying a ticket is the same as pleading guilty to the traffic offense. That means it goes on your driving record, can result in consequences for your driver’s license, and may affect your car insurance rates. Additionally, some traffic offenses are classified as crimes and you can’t just pay a fine and move on. You have to answer the charge in court.
  • Can I go to jail for a traffic offense?

Some traffic offenses are crimes and can result in a jail sentence if you’re convicted. When you’re charged with a criminal traffic offense, you should consult a traffic lawyer about your case, what to expect in court, and your options for a defense.

California Criminal Penalties

What are the possible penalties for a misdemeanor in California?

California misdemeanors typically are punishable by up to 1 year in jail; however, the actual penalties may vary depending on the specific offense. A San Diego criminal lawyer can explain the possible penalties for your charge and possible defenses.

  • What are the possible penalties for a felony in California?

In California, felony offenses have a standard sentencing range that includes a low term, mid term, and high term, such as 3 years, 4 years, or 5 years, and the judge must choose one of those sentences as a punishment for your conviction. However, the low, mid, and high range assigned for a given offense can vary greatly, and some felonies may be punishable by up to life in prison — or the death penalty in extreme cases.
  • What is a wobbler offense?

A wobbler is an offense that can be charged as either a misdemeanor or a felony. The prosecutor in your case decides how to charge the offense, but it’s to your benefit if you have a strong criminal defense lawyer who can argue why your charge should be a misdemeanor.
  • When does the Three Strikes law apply to a conviction?

California’s Three Strikes law mandates enhanced sentences for certain types of repeated violent or serious felony offenses. Penalties increase with a second conviction and again with a third. The system of penalties under the Three Strikes law can be somewhat complicated and involve several factors. A qualified San Diego criminal attorney can explain how the Three Strikes law might apply to your case and your options for fighting your charge.
  • Can I get my conviction expunged from my record?

Some convictions may be eligible for expungement in California, typically if it is for a misdemeanor crime or a wobbler that was charged as a felony but could have been a misdemeanor. Felonies that result in state prison sentences and that could not have been charged as misdemeanors typically are not eligible for expungement. However, the rules for expungement can be complicated and a San Diego expungement lawyer can best answer questions about whether your record can be expunged and how to proceed with a petition.
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