One of the most common criminal cases I see are drug possession charges. Whether it is a simple possession of a small amount of drugs or paraphernalia or a larger amount and a charge of selling drugs, or possession with intent to sell drugs, it is one of the most common charges that I get calls about in my office. So, if law enforcement found drugs how does one go about defending themselves against these charges?
A lot times people assume, especially for a smaller amount of drugs that may not be a felony, that there really isn’t much they can do. After all, the police found drugs in your home or vehicle so it seems like a pretty straightforward case that may not be worth fighting, especially if the State is willing to resolve it through an agreement that doesn’t involve you spending time in jail. However, drug charges, like anything else, have collateral consequences a person may not be aware of, both legal and otherwise. First, in North Dakota drug charges are what are known as enhanceable offenses. This means that if you get additional convictions in the future, the severity level of the crime increases. So, while your first conviction may not seem like a big deal and just a misdemeanor on your record, if you get another charge later it is no longer a misdemeanor offense – at that point you are facing a felony charge due to your previous conviction for a misdemeanor drug charge. Drug convictions can also impact things like eligibility for certain types of employment in the future, you may have to disclose your drug conviction on rental applications for apartments or homes, and it may impact a person’s eligibility for financial aid for college. With that, even if it is “just a misdemeanor,” there are a lot of unforeseen consequences for people if they just simply plead guilty.
So if these cases seem pretty straightforward and simple, how does one go about defending this type of case? Or, if you’re reading this because you have gotten a drug charge, what benefit is there in hiring a lawyer to help me out with my case? With any drug case, whether it is a simple possession or a more serious possession with intent to deliver, the real work in defending against the charge starts outside of the courtroom.
In many cases, drug charges arise out of some kind of search. Whether it is a search of your home, a search of your person (clothes, purses, bags, or something else on you), or a search of a vehicle, drug cases start by law enforcement finding drugs and forming some belief that they are yours. So, if these cases start with a search, that is the first thing we look at to defend against it.
If it is a search of vehicle there are a lot of things an experienced attorney will look at to help defend you. Was there a valid reason for a traffic stop? If the stop was valid, did they have a reason to expand that stop to search the vehicle? If they did, was it done in a timely manner? Was there consent to search? There are a lot of possible issues we look at, and what we are looking for is something in the course of your stop that law enforcement did wrong or violated your rights. You have a right to privacy and that right extends to your vehicle, so there are certain checks in place to make sure your rights aren’t violated. These are things an experienced lawyer can find.
If they searched your home we are looking for similar things. If they had a warrant did they provide a sufficient reason for the judge to authorize the search? Was the search at night, and if it was, did they provide a justification for why it couldn’t wait until morning? Was there consent, and if so, was that consent coerced in some way? Did they go beyond what they were allowed to do in the search warrant in their search? Again, there are a lot of things we are looking for in a search of a home and an experienced attorney can find these issues.
If there is an issue, then the fight really begins. When there is an issue with a search, if law enforcement failed to follow the rules and the law, then we write a motion to suppress the results of the illegal search. The Fourth Amendment protects a person against unreasonable searches and seizures, and if the police fail to follow what is required to protect that right, you can ask a judge to suppress any evidence that was located as a result of that illegal search and, in many cases, any evidence that is collected after that.
So, for example, law enforcement pulls over a vehicle but don’t actually have a legal basis to do so. That stop without cause leads to a search of the vehicle, where they find drugs in the glove box. In this case, we write a motion to suppress any evidence collected after the illegal seizure, or the illegal traffic stop, because it was done in violation of your Fourth Amendment rights.
Another example, law enforcement stops you for speeding and it is a valid stop. After the stop, they ask you if they can search your vehicle and you refuse (as you should) but they take you out of the car and search it over your objection, and without seeing anything that would make them believe there is anything illegal in the car. From there, they find drugs and charge you with possession. In this case, while the stop is valid, we write a motion to suppress the evidence found during the search because it was done illegally.
Motions are the most effective way to fight a case, and that starts by hiring a lawyer who knows what to look for in your case as soon as possible so they can request copies of the evidence against you and begin to review it for possible issues. An experienced, effective attorney can help you fight your case before you ever step foot in a courtroom, and begin to form a strategy for how to defend you against the charges you are facing.
If you are charged with a more serious drug offense, like possession with intent to deliver, there are other things we are looking at that become issues later in your case. With this charge, you are not just dealing with the fact that you possessed a controlled substance, but that you possessed it with the intent to sell it. These charges often are brought because of a few things – law enforcement has been told by some person that you are selling drugs, they find a large quantity of drugs, they find items that would tend to indicate a person is selling drugs, such as baggies, scales, or other items used in distributing drugs, or they find drugs along with a large amount of cash. In any of these situations, they may charge you with possession with intent to deliver.
With this more serious charge, though, comes an added aspect that the State has to prove. They have to prove your intent – that you had sold drugs, or that you were intending to sell drugs. Intent is not always easy to prove and it opens up another lane of defense in your case. However, this lane is one that comes up later in the case.
With this more serious charge, we are still looking at the normal motion issues related to a search, but we are also planning ahead for how to defend it if it goes to trial. The question, more often than not, comes down to whether they can prove the intent element of the crime against you, so as a lawyer, we start to find ways to argue against that at a trial. In this case, there are several questions that can help us along the way. If they found a scale, did it have any drug residue on it that would show you used it to weight a controlled substance? Was there another reason you had the amount of cash that they located? Is there some other explanation for the baggies they found? If they found what they deem a large amount of drugs, is it really more than a typical drug user has in their possession? These are fact questions and they are ones we present to a jury in your defense.
Along with that, if there are witnesses who are cooperating against you, how credible are they? Oftentimes in drug delivery cases their witnesses aren’t innocent bystanders who just happened to observe something – they are much more commonly a person who is working with law enforcement or the State to get a break in their own drug case. They often also have prior criminal convictions that may be able to be used to show that they are not a credible witness to rely upon when these charges were filed. If there are witnesses against you in any case, but particularly one like this, their credibility is very important so we look for reasons they may not be as credible as the State wishes them to be.
In any drug case, whether simple possession or more serious charges, the most important step you can take is finding an experienced attorney to help you through it. The work that goes in to defending against these types of charges starts early and is often done through motions long before it goes to trial to try to cut away the evidence against you. The sooner you have a lawyer review the case, the better off you are at the end of the case. If you find yourself facing any type of drug charge, contact Curran Law Firm today and see what we can do to help fight for you.
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