Marinovich Beneficiary of Loophole - Football: Arrest in Orange County instead of Los Angeles means misdemeanor charge instead of felony

If Todd Marinovich had been arrested for cocaine possession in Los Angeles County he probably would have been charged with a felony, legal experts said Monday.

Using a policy that differs from the rest of the state, Orange County prosecutors filed misdemeanor drug charges against Marinovich, USC’s starting quarterback the past two seasons.

Marinovich, legal experts in Orange County said, did not receive preferential treatment. The Orange County District Attorney’s office has a longstanding policy to handle similar cases this way.

Orange County prosecutors charged Marinovich with a misdemeanor under the business and profession code of the California Penal Code. The law they used applies to prescription drugs and allows for misdemeanor charges.

The code reads in part: “A misdemeanor. A defendant did willfully and unlawfully possess cocaine, a compound and mixture and preparation ... (that) was not for use in the nose and was not unfit for internal use and has not been furnished to the said defendant upon prescription of the physician, dentist, podiatrist and veterinarian.”

Prosecutors outside of Orange County follow the health and safety code, which provides only for felony charges of cocaine possession.

“Nobody else does it like this that I know of,” said James Brott, a criminal defense attorney from Santa Ana. “It’s a catchall for the small amount of cocaine found. They (Orange County prosecutors) do this to prevent the stigma of a felony charge.”

Orange County’s policy for first-time offenders with no criminal record is simple. Those arrested for less than a gram of cocaine are charged with a misdemeanor. Those with more than a gram are charged with a felony.

Carl Ambrust, supervisor of narcotics in the Orange County District Attorney’s office, said the policy has been in effect between five and 10 years. But he said that his office is re-evaluating the guidelines because of the county’s growing drug problem.

Newport Beach police reported Marinovich possessed a gram of cocaine when he was arrested last week. However, officials of the Orange County crime laboratory reweighed the substance and concluded that it was 445 milligrams, less than a half a gram.

Sandi Gibbons of the L.A. County District Attorney’s office said their cutoff for filing charges is 500 milligrams. She said L.A. prosecutors would dismiss charges for less than a half a gram.

With an amount so close to a half gram it is difficult to say what L.A. prosecutors would have done with Marinovich’s case.

However, Alan Abajian, a public defender from Rio Hondo Municipal Court, said charges would have been filed.

“With that amount, we charge them,” he said.

First-time offenders of cocaine possession who are convicted in L.A. County are sentenced to a minimum of 90 days in jail, Abajian said.

“(Orange County’s) is certainly a lot more lenient treatment than L.A. County,” Abajian said.

Orange County legal experts disagreed. Using the business and profession code is a legal loophole to give first-time offenders a break, Ambrust said.

“We look at this as part of the rehabilitation,” he said.

Myles A. Lenhoff, a public defender at Harbor Municipal Court in Newport Beach where Marinovich will be arraigned on Feb. 11, said the former Capistrano Valley High School football star is eligible for a drug-diversion program whether he is charged with a misdemeanor or felony.