How to Fight Drug Possession Charges


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Every year, thousands of people are arrested on drug possession charges. Many of these charges relate to very small amounts of controlled substances in a person's car or on their person. These cases are an enormous percentage of the criminal court dockets of every state, leading to almost routine behavior of drug possession defendants and sentencing. But, it is possible to fight these types of charges and obtain a more favorable outcome.

The defense of a person charged with possession of controlled substance is often difficult, but not impossible. For example, one often used practical tactic is to simply take advantage of overworked public employees. Prosecutors handle hundreds of cases per month, and drug possession charges are relatively low priority for most. If you can handle the case with the level of intensity of a first degree murder charge, creating multiple depositions, document requests, and other procedural busy work, you may be able to wear down the prosecutor, ultimately leading him to either drop the charges or offer a significantly reduced sentence as part of a plea agreement. Additionally, in most jurisdictions if a prosecutor fails to provide materials during discovery it is possible to seek dismissal of the charges as a sanction against the state. Of course, in some instances this scorched earth policy can backfire, causing the prosecutor to take a personal interest in your case due to the headaches you have caused him.

Some jurisdictions also offer diversion programs that allow those caught with small amounts of drugs to do some form of rehabilitation, pay fines and court costs, and upon successful completion of all obligations the charges are dropped and there is no conviction recorded against the individual's record. Of course, these programs require a legitimate effort on the part of the accused to remain clean and off drugs. Failing to do so can result in all of the original criminal penalties, plus the possibility of having to pay for the failed treatment plan.

If you really must fight the case on the merits, the primary way this is done is by challenging the means by which the evidence was obtained. First, you will attempt to show that the reason the officer stopped you was unjustified (i.e., that the officer lacked probable cause). Even if the stop was legal, the subsequent search that led to the discovery of the drugs may not have been if the officer lacked probable cause to search or a valid search warrant. This is usually where the case will have the most weaknesses. Often, officers “ask” to search in a manner that implies no choice. Allowing an officer to search you or your home or vehicle will allow whatever he finds to come into evidence against you. So, if there is any way to say no to the search without being arrested for obstruction or resisting arrest, you should do so. It is your constitutional right. If the officer still searches without a warrant or probable cause after you have told him no, the evidence is inadmissible.

Many cases also suffer from weaknesses in establishing “constructive possession.” This is when something is deemed to be in your possession because of the circumstances, even though it may not actually be yours. For example, if you borrow a friend's car to get some groceries and, upon being pulled over for speeding, the officer comes up with a reason to search and discovers a small amount of marijuana in the center console. Are those drugs yours or do they belong to the owner of the car? This creates a cloud on proof of possession beyond a reasonable doubt that a savvy defendant can exploit to his advantage.

Another weakness is in the proof that a substance is actually a drug. After all, if you are in possession of a bottle of spices for your culinary class, and not marijuana, this is a pretty significant mistake. For that reason, it is important to challenge any lab reports verifying the evidence is a controlled substance. Objecting to the identification of the substance will not only leave that matter at issue for trial requiring the prosecutor to prove it beyond a reasonable doubt (again, creating additional headaches for the overworked prosecutor), but it also will create additional time and expense. To prove that the substance is actually a controlled substance, the prosecutor will normally call the lab tech to testify at trial, which can be very expensive. Moreover, criminal trial dates are constantly changed, creating a potential administrative nightmare to schedule and reschedule the lab tech's days off to show up in court, particularly if the lab tech had to testify in virtually every drug possession case on the court's docket!

If you or someone you know has been charged with drug possession, take it seriously. While many consider this a “minor crime,” it can have very major consequences, including jail time, lengthy probationary periods, drug screens, fines, administrative costs, etc. You should immediately contact a criminal defense attorney for assistance with these types of cases, even if the charges seem relatively minor. Failing to do so could have dire consequences that a skilled attorney may be able to help you easily avoid.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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