THE LAW THE INTERNET AND YOU

Recently I have seen some of the most amazing things advertised for sale on the Internet. Pure and simple if activity is illegal to begin with, because the transaction takes place on the Internet does not make it magically legal. And yes these sites (be they underage porn, drugs, or advertisements for illegal services) are monitored by law enforcement.

Case in point drug sales. Whether for steroids or party drugs or prescription drugs(you buy WITHOUT A LEGAL PRESCRIPTION) you can find web sites that offer to sell all of these. The bottom line is, as the laws are written in California, the actual CRIME committed is for POSSESSION OF A CONTROLLED SUBSTNCE OR A NARCOTIC, they do not care where you got it from. Pure and simple what happens is the Feds and the Local Police work in tandem together. The Feds monitor the web site, bust them, then get their customer list. They then contact the local law enforcement for your area, and local law enforcement wait for the package to arrive.

Once you take possession of the package (and in cases I have handled, the cops simply followed the UPS or Fed Ex guy into the premises...) you can be arrested. I will be the first to say that most of the cases I have been involved with were people who had purchased more then 1 or 2 "doses" of a particular substance, but if you are buying illegal substances off the net you are subjecting yourself to arrest. Depending on the amount purchased you also may be subjecting yourself to charges either for possession or for intent to sell as well as possible Federal Crimes.

The reality is that most of these transactions do NOT get prosecuted simply because so much of this activity is going on, law enforcement can not keep up with it. However, we all take risks in life and some may not be worth more then others.

I also have seen drug sales offers take place in chat rooms, on sex web sites as well as on sites such as Craig's List. Some of these ads can be very creative. But in working with Narcotics Detectives for almost 10 years, these guys know all the lingo. My favorite ad recently advertised "1 ticket for the TINA concert for a good price." The ad went on to say that he had " 8th row seats for the best price."

Many police agencies, both local and federal now have Gay and Lesbian detectives and other employees on staff.who can easily decipher the lingo that is used in OUR community. I also know my share of Gay and Lesbian Prosecutors and Judges in the court system as well.

Additionally, offers to have sex for money is also illegal. Now offers for massage or payment for other services may not be. However, if you are offering a massage technically in some cities you may have to follow certain guidelines for the transaction to be legal. Yes, I know there are numerous web sites offering prostitution on the net. It still does not make the activity legal. The biggest problem is with these sites is that there are just so many people involved in this behavior it is impossible to enforce the laws against EVERYONE. Again this issue becomes...is it simply worth the risk of getting caught. Its no different then those going over the speed limit on the freeway, not everyone gets caught. BUT if you do, you can get yourself in a lot more trouble then just a speeding ticket.

Lastly, as more and more professions are requiring that you be licensed by the State of California; it is important to know that most licensing agencies in California will conduct their own separate investigations should you be arrested regardless if you are convicted of a crime. If you have or plan on having an occupation which requires you to have a license such as a teacher, real estate agent, nurse, doctor, dentist, etc, etc. you are subjecting yourself to these types of investigations should you be arrested. If you are under investigation by one of these boards you are entitled to an attorney and unlike a criminal court proceeding one will NOT be provided for you. In most cases it is a good idea that you have one or you may not get or keep the license you worked so hard for.

If you have questions about this or any other legal matter please do not hesitate to contact my office at (310) 749-4LAW. Additionally, I have posted most of my old articles at FREELEGALINFO4U.BLOGSPOT. COM.

Beware The Cyberpolice

Without getting into great detail up front, if you are currently on the Internet and sending sexually suggestive pictures of yourself, others, or receiving these types of pictures of other people it is HIGHLY suggested that you stop doing this immediately.

Now, how do I make a statement like that WITHOUT sounding like a paranoid alarmist? What about my 1st amendment rights you say? I am basing this "suggestion” on a few cases that came into my office recently. It appears that federal and local law enforcement are having a grand ole time these days busting gay boys who happen to be lookin for a little lovin' in the privacy of their own homes.

Now can you be a martyr to the cause and challenge this suggestion? Sure, you can continue to do this - DEMAND YOUR FIRST AMMENDMENT RIGHTS; but also possibly face, an FBI inquiry, major stress and tumult in your life, loosing your job, potentially HUGE legal bills and of course the possibility of going to prison.

There is a huge myth out there that there is a "reasonable expectation of privacy" on the Internet. This is clearly erroneous. Law enforcement is not having a difficult time these days bringing minimum amounts of evidence into court and having judges issue warrants for peoples’ home computers, just looking for ANY sexual material to bust them on.

Although you may be aware of this, just for starters, the FBI has very sophisticated gadgetry which can completely restore your hard drive, should it once have contained illegal materials, even if they have been "deleted." They also have the ability to monitor your emails, web sites visited, instant messages, etc. etc. You can no longer take for granted that simply because you are in the privacy of your own home (or worse yet OFFICE) you can do whatever you wish on the Internet. Remember folks all it takes is a warrant or a subpoena and your anonymity is GONE!

Now, am I saying that these law enforcement agencies are bringing these matters with STRONG cases under their belts? No I am not. But in the past four months, I have seen three individual's lives almost destroyed by "simple investigations." A friend of mine called me recently and gave me this scenario:

While he was at work two FBI agents approached him and asked to talk to him. They took him into a room and began questioning him about ONE naked picture that he sent to someone almost two years ago. It turns out that the individual it was sent to was a minor who had obtained one of his older sibling's AOL sign ons and requested this picture.

When Mom and Dad signed on the computer and checked their old mail, they discovered the picture had been sent to their son and contacted the FBI. See how simple it is? Of course the minor has yet to admit he requested the picture and therein lies the impetus for "the simple investigation."

This individual has since lost his job due to the incredible suspicion the presence of the FBI agents caused and is still pending the decision on whether or not he will be charged with a criminal offense.

When you are talking on the internet, you have absolutely NO idea who you are talking to on the other side, be it minor, law enforcement agent, some other hot stud like yourself, or anything in between. There is a myth out there that individuals MUST disclose they are law enforcement if they are asked.

I am not saying that there is clear criminal liability should you unknowingly send a sexually explicit picture to a minor. In theory there is not. But is it worth the risk to HAVE to prove you had no knowledge of this in a court of law?

Additionally, it is important to note what happens when you receive a sexually suggestive picture of a possibly underage individual an email. Although you did not request that picture, technically being in mere possession of the picture is against the law.

However, if you are in the habit of collecting pictures of underage individuals (or pics of people who even resemble underage individuals) or visit web sites where other people who are into underage individuals are drawn to; do not be surprised if you find yourself under surveillance, investigation and maybe one day under arrest.

You may never really have the intent of having sex with an underage individual and it may just be a "fantasy trip," however, this matters little to law enforcement.

Let the user beware.

Carl Simons is an attorney practicing criminal and general civil practice at the Law Offices of Carl Simons located in Century City, Irvine, and Long Beach. If you have any questions regarding this or any other legal matter, please feel free to contact him at (310) 749-4LAW.

CLEARING YOUR CRIMINAL RECORD

More and more companies are requiring criminal background checks of their prospective employees. The best time to deal with any possible blemishes on your criminal record is NOW; before any potential job opportunities as put in jeopardy. As the entire process can take anywhere from 2 weeks to 3 months, the best time to clean up your record is before it comes into question.

Finding ANYONE'S criminal record these days is as easy as signing onto the internet, finding the right site, paying their fees and any stranger has free reign to view your past indiscretions. People subjected to 290 registration maybe hassled by neighbors or discriminated against by their employers for their entire lives, unless the appropriate legal action is taken.

Your criminal history (any conviction of a misdemeanor or felony) is technically a matter of public record for anyone to see for up to seven years after your conviction. After 7 years it is supposed to "fall off" but this is not the same legal effect as an expungement. Many times crimes will stay on your public record "rap sheet' long after they were supposed to have been taken off. These convictions and your entire criminal history remains on your Department of Justice rap sheet for the rest of your life.

California Penal Code Section 1203.4 (expungement motion) allows for people who have satisfactorily completed their probation to apply to the courts to have their guilty (or no contest) pleas withdrawn, their convictions set aside, and their cases dismissed. The effect being that many background checks that search only for convictions will wipe your matter clear from their data banks. Other background check search engines will at least show the complete history of your matter, with the final entry being, guilty plea withdrawn, conviction set aside, CASE DISMISSED.

Most importantly, EXCEPT for applications for state licenses or government positions (in those situations you must state your complete history of the matter) if a motion for expungement is granted, you may fill out employment applications and legally say that you do not have any convictions on your record. The filing of an expungement motion is largely an important "clean up matter" should you have any criminal convictions, you may expunge felonies as well as misdemeanors. If your conviction occurred over 7 years ago and you have not filed an expungement motion legally you must still disclose the conviction, even if you believe it may have fallen off your record.

Certain crimes subject to Section 290 registration can technically be a matter of public record for the rest of your life, unless you file the appropriate documentation with the court and have it granted. Depending on the crime, if either 7 or 10 years have elapsed since you were subject to 290 registration, you may apply to the court to end having to complete this registration.

A competent attorney can help you with these motions and help clear off the lingering effects of your past criminal indiscretions; and save you the embarrassment of having to explain the entire situation to your potential employer.


If you have any questions regarding such actions or any other legal matter feel free to contact my office at (310) 749-4529

Use Your Discretion

This column is in no way intended as an endorsement of the use of illegal substances and is general information and should not be considered legal advice .

A few years back, I was parking my car next to a local dance club here in LA. As I was walking to the club, I passed by a parked car on a MAJOR street with three guys in it measuring their doses of what appeared to me to be GHB. Being the nosey attorney that I am, I tapped on the window. They rolled it down and I calmly said, "You know, if I can see you doing this, so can the LAPD." All three simultaneously said "Fuck-off." I pulled out a business card and responded, "You’re probably going to need this one day...".

That night, I began to notice, just how much illegal drugs have become part of our community; and how most of us want to ignore the fact that although extremely popular, party drugs are still ILLEGAL. I was fortunate to come out at a very young age and have been going to clubs since I was about sixteen. I remember a time when discretion in party drug use was adhered to because people were afraid of getting arrested. Because of their popularity in clubs and wide spread use in the community, it appears most people forget about the possible long term consequences to their life, finances and occupations if they are arrested; and often, place themselves in jeopardy of this occurring. .

Many of us in clubs and at events have worked very hard in life and value our jobs and professions. We work hard all week and look forward to these events so we can just let off some steam. However, most people do not realize that if you are a licensed professional (lawyer, doctor, professional driver, real estate agent, etc., etc.); have a position with a major company; or have plans of being in one of these jobs one day - having a drug conviction on your record is something that may follow you the rest of your life and severely limit your occupational goals.

Police and Federal Agents are not stupid. They know exactly what is going on in our community and in the night club community as a whole. Driving while intoxicated, doing drugs openly in neighborhoods near our hang outs, overdosing in clubs, sending drugs through the mail, and other various lacks of discretion are most common ways people get arrested. If you "choose to use," simply do so wisely, and with moderation and discretion.

The majority of arrests occur either before you get to an event or after you leave an event. Public policy has law enforcement out there specifically to prevent you from not only placing yourself in danger but also from being a danger to others by driving while intoxicated or “under the influence of a substance.” If you are potentially going to be using an illegal substance and live in a city where public transport is out of the question, it’s always best to take a taxi.

If you are unlucky enough to get arrested for having "controlled substances," on your person, law enforcement and the courts generally look at one major factor in deciding what charges will be brought against you: the amount found on you or in your "control" at the time of your arrest. It makes no difference to them whether or not you intended on selling this substance or not. If you have more then 1 or 2 doses of a particular drug, it is highly likely they will attempt to charge you with a possession for sales charge instead of a possession for use charge. As you can well imagine, a "sales" charge is a great deal more serious then a "use" charge with much stronger penalties.

If you are arrested for being under the influence and/or possession of a small amount of drugs the good news is California has a drug "diversion" program which allow an individual with a "use" charge to have his or her matter dismissed upon completion of a drug treatment program. These programs are very specific as to who may get in and what charges apply. Diversion is not a matter of right, and in many cases it is up to the court's discretion to allow you into one of these programs.

Lastly, if you are HIV positive and you are arrested, you are running the danger of literally shortening your life. Although the jail and prison systems will not admit it, HIV positive individuals who are incarcerated do not receive adequate medical treatment. Generally you can be held in custody up to 72 hrs (that is NOT including weekends or holidays) if you are arrested, before you will see a judge and be notified of the charges against you (be "arraigned"). If you are on medications, it is likely you will not be receiving those meds for at least that period of time (and longer should you be sentenced to custody time).


Carl Simons is an attorney in the Southern California area, with offices in Los Angeles, and Irvine. If you have questions about this, or any other legal matter feel free to contact me at (310) 749-4529.