Drug Charges
Drug Charges
Drug charges should be taken seriously, not only because of the possible sentences that often include jail or prison time, but also because of the stigma associated with drug crimes and the long term consequences of a conviction.
Defendants charged with what may seem like minor drug offenses are sometimes tempted to avoid the expense of hiring a drug lawyer, but in reality, the serious treatment of these charges by the courts usually calls for the help of an attorney specifically familiar with drug law.
Drug law is a very distinct area of criminal law, requiring drug attorneys to have intricate knowledge of state and federal drug laws and of illegal search and seizure rules defined by the U.S. Constitution and individual state constitutions.
The most common drug crimes lawyers encounter are drug possession and possession with the intent to distribute, but there are many possible charges involving drugs. Examples include manufacturing, transportation, cultivation, drug trafficking and many other state and federal drug charges.
Drug Charges
Drug Possession
Possession of drugs is not only the most common drug charge, it is also a necessary element to many other drug offenses. In order to be convicted of possession for sale or possession with intent to distribute, for example, the prosecutor must first show that the defendant was in possession of the drugs. Manufacturing charges also require that the defendant be shown to have been in possession of the materials, items, or equipment necessary for the production of a controlled substance.
There are two ways law enforcement and prosecutors show that a defendant was in possession of drugs. The first is by showing that the drugs were in the actual physical possession of the defendant, and the second is called constructive possession.
Constructive drug possession means that although the defendant did not have the drugs in his pocket or otherwise on his person, the placement or location of the drugs was such that the defendant had both knowledge of the drugs and dominion and control. Dominion and control means that the defendant had the ability and intent to control the drugs.
Constructive possession is an important concept in drug law. If the location of the drugs indicates that the drugs may not have belonged to the defendant but could have belonged to another party, drug lawyers typically attack the prosecutor’s case by attempting to show that there is a reasonable explanation for the presence of the drugs, other than the defendant having possession.
In other words, drug attorneys often argue that the drugs may have belonged to someone else. This is an extremely effective defense, especially if the jury accepts that there is a reasonable possibility that the defendant was not even aware that the drugs were present.
Possession for Distribution
Possession of drugs with intent to distribute is a charge that is often added to a defendant’s simple possession charge when the quantity or manner in which the defendant kept the drugs indicate that the defendant intended to sell the drugs. Large quantities indicate intent to sell drugs because possession of a large quantity of a particular controlled substance suggests that since the defendant had more drugs than a person might use for personal consumption, the person must possess the substance for another purpose – profit. Possession of a large quantity is circumstantial evidence that the defendant intended to sell the drugs. Most states have statutes that identify specific quantities of drugs which allow the defendant to be charged with distribution.
Types of Drugs
Prescription Drugs
Although street drugs like cocaine, methamphetamine, and heroin are still widely abused, the newest form of drug abuse involves the abuse of prescription drugs, and prescription drug crimes and charges have recently become a matter of heightened concern for the courts and police. These drugs range from narcotics like Oxycontin, Vicodin, and Percocet to tranquilizers such as Zanax and stimulants like Aderall. Drug charges stemming from these types of drugs include charges such as illegal possession of prescription drugs, like possession of Vicodin, Adderall, or possession of Zanax without a prescription and illegal distribution of prescription drugs.
Drug possession lawyers and criminal lawyers who practice drug defense defend prescription drug charges similarly to other drug crimes, because the defenses and possible penalties tend to be similar. For example, one of the common defenses used by drug lawyers for prescription drug charges is the claim that the defendant didn’t have actual or constructive possession of the drugs.
Street Drugs
Many different varieties of drugs are sold and abused on the streets. Some are illegal for any purpose, while others have a recognized use when prescribed by a medical professional. Examples of street drugs include heroin, cocaine and crack, methamphetamine or meth, ecstasy, LSD and marijuana. Possession of any of these drugs can result in possession of a controlled substance charges, and in some states possession of certain drugs carry their own individual charges. For example, some states may have specific possession of cocaine charges, or heroin possession, methamphetamine possession, or possession of marijuana charges.
The possible penalties and sentences for drug offenses, illegal drugs in particular, vary from state to state and depending on the particular drug. Some states treat certain drugs more severely than others. For example, most states impose greater penalties for cocaine than marijuana, and in some states the penalties are much greater.
Drug Defense
Legal Defenses
The primary legal defense offered by drug possession lawyers for drug crimes such as simple possession and possession for distribution is to establish that the defendant was not in possession of the drugs. If the charges are based on constructive possession rather than actual possession, a competent drug attorney will usually attempt to establish that the defendant did not have knowledge of the presence of the drugs, or that the defendant did not have control or dominion over the drugs.
In essence, the defense usually involves the defendant claiming that someone else placed the drugs in their car, home, or wherever the drugs were found, without their knowledge. This defense is sometimes plausible to juries, but other times, use of the “lack of possession" defense is a stretch. This is especially true when the drugs are found on the person of the defendant.
However, even when drugs are found on a defendant’s person or in his personal effects, it is often possible to mount a drug defense using principles of constitutional law.
Arrests and Searches
To fight conviction for their clients, drug lawyers rely heavily on excluding drug evidence from trials by arguing that the evidence was collected as the result of an illegal search. According to the 4th Amendment, except for certain exceptions, searches without a warrant are unreasonable and not allowed under the Constitution.
If a search was unreasonable, the fruits of the search, or the drugs found as a result of the search, may not be used against a defendant at trial. This principle is called the exclusionary rule.
Even in cases where the police find an exception to the warrant requirement, as in cases where automobile searches turn up drug evidence, the police must have probable cause to stop the vehicle and conduct the search or the evidence will be excluded. The probable cause must have been present at the time of the stop, and at the time of the search. It is not enough for the officer to point out that the search ultimately resulted in a discovery of contraband. If there was no probable cause for the stop or search, any evidence found by the police will not be admitted.
There are various ways that evidence in a drug case can be excluded based on 4th Amendment protections. For this reason, lawyers experienced in drug defense always carefully and methodically examine the procedure used by the police to obtain any evidence the prosecutor intends to use at trial.
Penalties and Sentences for Drug Crimes
Sentences for drug crimes vary widely, depending on the state and the nature of the crime. In some states, possession of certain drugs is relatively minor, and probation may be an option. Recognition of the fact that drug possession is a product of drug addiction, and medical research indicating drug addiction is a disease has also prompted many states to offer in-patient or out-patient drug treatment in lieu of initial jail or prison time. Drug treatment programs are often a probation condition, given with a guilty plea and a suspended sentence.
If the party fails to complete the treatment program, or violates other conditions of probation, the suspended sentence is typically imposed by the court and the individual is sent to prison.
Drug distribution, also called possession with intent to distribute, is a much more serious crime than simple possession. While possession of drugs is often a felony, very small amounts are sometimes classified as a misdemeanor. Distribution, on the other hand, is virtually always a felony charge and is treated much more seriously by the court. Manufacture of drugs is even more serious, and can also lead to long prison terms or even life sentences in some states, depending on the quantity and the substance in question.
