In Lujan-Armendarez v. INS, [68] the Ninth Circuit overturned Matter of Roldan[69] on equal protection grounds, holding that the new IIRAIRA definition of conviction did not invalidate the Federal First Offender Act (FFOA), and that state expungements therefore continue to eliminate all immigration consequences of convictions of first offense simple possession of all controlled substances where the defendant would have been eligible for FFOA treatment if prosecuted in federal court.  The FFOA applies to those convicted in federal court of knowingly or intentionally, without authorization, possessing any controlled substance (and of gratuitous distribution of a “small amount of marijuana”).[70]  See § 4.27, supra.  The Ninth Circuit has also held that this benefit must be made available to defendants convicted of other offenses such as possession of paraphernalia that are (a) less serious than simple possession, and (b) not forbidden under federal controlled substances statutes.[71]  This would cover offenses such as driving under the influence of a controlled substance, being in a place in which controlled substances are used, being under the influence of a controlled substance, and the like. 

            A conviction expunged under Lujan should no longer be sufficient to constitute a conviction of a drug trafficking aggravated felony, controlled substances offense, or a crime of moral turpitude.  Although no case has specifically held that an expungement under Lujan erases the conviction as a crime of moral turpitude, this would be a logical extension of Lujan.  This is because Congress expressly provided that the conviction treated or treatable under the FFOA ceases to exist for any purpose.[72]  In any case, simple possession, and most (if not all) of the lesser offenses that can be expunged under Lujan, are not likely to be considered crimes of moral turpitude.  See § 8.3, supra.

            For further information on cases in which state rehabilitative relief is effective in the Ninth Circuit to eliminate first minor drug convictions, see § 4.28, supra.

[68] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[69] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), reversed sub nom, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[70] 21 U.S.C. § § 844(a) (possession), 841(b)(4) (gratuitous distribution of “small amount” of marijuana).

[71] Cardenas-Uriarte v. INS, 227 F3d 1132 (9th Cir. 2000).

[72] 18 U.S.C. § 3607. 

Ninth Circuit

SAFE HAVEN - DUI DRUGS
Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000) (expungement eliminates conviction of possession of paraphernalia, by analogy to the FFOA and simple possession, because this offense is a misdemeanor that is not forbidden under federal drug laws, and it would be absurd if the FFOA did not cover it). Counsel can apply the same reasoning applies to misdemeanor driving under the influence of drugs. Additionally, "drugs" in the context of driving under the influence of drugs may include any substance, such as dirt, water, or aspirin that impairs the ability to drive, as is the case in California. Cal. Vehicle Code 312.

Other

CAL CRIM DEF " CARRYING A CONCEALED DIRK OR DAGGER
People v. Mitchell, 209 Cal.App.4th 1364, 148 Cal.Rptr.3d 33 (Oct. 11, 2012) (former Penal Code 12020(a)(4), which prohibited the carrying of a concealed dirk or dagger, does not require specific intent to conceal the instrument from other persons).