Federal and state drug possession laws criminalize the illegal possession of controlled substances such as marijuana, methamphetamine, cocaine, LSD, “club drugs” and heroin. These laws also consider the crime of possessing as a precursor to the chemicals used in drug manufacturing. Drug possession laws vary depending on the type of drug, the quantity, and the geographic area of the offense. Possession of small amounts can be considered as possession, while possession of large amounts can be presumed as the intention to disperse.
Some illicit drugs violate federal and state laws. Although drug possession laws can vary from state to state, the offense is generally the same. Prosecutors must be able to prove beyond a reasonable doubt that the defendant knew that the drug in question was a controlled substance. It can also include what is known as “constructive possession” or access to an illegal drug.
Drug possession laws
Drug possession laws generally fall into one of two main categories: simple possession (for personal use) and possession with the intent to distribute. The possession with intent to distribute carries typically much more severe penalties in the event of a conviction, compared to mere possession, in the interest of both punishing and deterring drug traffickers. To prove possession to distribute, prosecutors can present evidence such as scales, bags, large amounts of drugs, large amounts of money in small bills, or the testimony from witnesses.
Drug possession laws also prohibit accessories like syringes, crack pipes, or bongs. Federal drug paraphernalia law defines what constitutes drug paraphernalia but generally depends on determining the principal use. For example, a newly purchased kalian might not be considered a marijuana bong unless it contains drug residue or is explicitly sold as a marijuana bong. There also are laws to limit the possession of certain chemicals or materials commonly employed in the cultivation or manufacture of medication, like laboratory equipment wont to make methamphetamine. Although some states have legalized the possession of medical marijuana on the advice of a doctor, it’s still considered illegal all told cases under federal law.
If you are charged with drug possession, either for personal use or with intent to sell, a criminal defense attorney can determine which defenses might apply to your case should you plead not guilty. Different states approach the illicit drug problem differently, while the federal government tends to have the strictest sentencing guidelines. But the defenses against drug possession are fairly similar between states. Some criminal attorneys may challenge the evidence set out in the case. Meanwhile, other attorneys may seek procedural errors, often issues regarding the search and seizure, and some defendants challenge drug possession charges based on an affirmative defense, such as the right to use medical marijuana in some states.
Defenses To Drug Possession Charges
Here Are Some Defenses To Drug Possession Charges, Some More Common Than Others:
Unlawful Search And Seizure
The Fourth Amendment to the U.S. Constitution guarantees the right to due process of law, including lawful search and seizure procedures prior to an arrest. Search and seizure problems are quite common in cases of drug possession. Illicit drugs found in “plain view,” such as a car’s dashboard after a legal traffic stop, may be seized and used as evidence. But the drug found in the trunk of a car after opening it with a crowbar, assuming that the suspect did not give his permission, cannot be entered into evidence. If the defendant’s Fourth Amendment rights have been violated, the drugs cannot be used at trial, and the charges are generally dismissed.
Drugs Belong To Someone Else
A common defense against any criminal charge is simply to say that you did not do it. The equivalent of drug possession is to pretend that the drugs don’t belong to you or that you didn’t know they were in your apartment, for example. A qualified defense attorney will pressure prosecutors to prove that the joint found in the car belonged to his client and not to one of the other three passengers.
Crime Lab Analysis
Just because it looks like cocaine or LSD doesn’t mean it necessarily is. The prosecution must prove that a seized substance is the illicit drug it claims to be by sending the evidence to a crime laboratory for analysis. The crime lab analyst must then testify at trial before the prosecution can present its case.
A competent lawyer will ensure that prosecutors are able to produce the actual drugs for which their client is charged. Similar to the need for laboratory analysis of crime, prosecutors who lose or do not have the actual drugs risk having their cases dismissed. Seized drugs are often transferred several times before ending up in the evidence locker, so it should never be assumed that the evidence still exists during the trial.
Drugs Were Planted
This may be difficult to prove since a police officer’s sworn testimony carries a lot of weight in the courtroom. Furthermore, other officers may be reluctant to blow the whistle on a fellow officer. But your lawyer can file a motion that requires the ministry to disclose the particular officer’s complaint file if approved by the judge. This file contains the names and contact information of those who made the complaints, who your attorney or a private investigator can then interview.
While law enforcement officials are free to set up stinging operations, trapping occurs when agents or informers induce a suspect to commit a crime that he or she might otherwise not have committed. If an informant presses a suspect to smuggle drugs to a third party, it can be considered trapping. Typically, trapping occurs when the state provides the drugs in question.
Medical Marijuana Exception
The medical use of marijuana is never a defense in federal court, but maybe in the states where medical marijuana has been legalized. States with such exceptions to marijuana laws generally require a recommendation signed by a doctor. But some of these states also provide for an affirmative defense on the part of those arrested for possession of marijuana who can provide clear and convincing evidence of medical necessity.
Drug Possession Penalties And Sentencing
Those convicted of drug possession face a wide range of sentencing penalties, varying from state to state. Sentences for simple possession range from a fine of less than $ 100 and/or a few days in prison to thousands of dollars and several years in state prison for the same offense. Simple penalties for drug possession tend to be the lightest, while intent to distribute drugs or cultivate/manufacture drugs carries much heavier penalties. Prosecutors sometimes offer plea deals to defendants who may be able to help them with a higher-priority investigation, perhaps leading to the arrest of an organized crime leader.
Federal lawmakers enacted mandatory minimum sentencing guidelines for drug offenses in 1986 in an attempt to target high-level distributors, although they also impact lower-level drug defendants. Most states have adopted a similar approach to a conviction for drug addiction. These fixed sentences are based on the type of drug, the weight of the drug, and the number of previous convictions. Kentucky, which has adopted similar guidelines on mandatory minimum sentences, contains some of the most stringent provisions. On the other hand, California has some of the lightest penalties for drug possession: between $ 30 and $ 500 in fines and or 15 to 180 days in prison.
Many states have instituted so-called drug courts, programs for accused persons of crime linked to crime supervised by a judge which aims to rehabilitate the accused (often repeat offenders). The judges have significant control over the functioning of the drug courts. An addict who agrees to attend drug court spends approximately 12 to 15 months attending treatment sessions and undergoing random drug tests when he or she appears before the drug court judge. Those who fail to appear in court or fail drug tests are arrested and often sentenced to a short prison term.
Factors that influence penalties for drug possession — aside from mandatory minimum sentences — include the defendant’s record, the amount and type of drug. Some states have effectively decriminalized possession of marijuana, making it a simple infraction (not unlike a traffic ticket). In contrast, possession of crack cocaine once carried the harshest penalties in most states. Depending on the sentencing rules of a given state, judges have some discretion and can impose sentences ranging from fines, hours of community service, and probation to long prison terms. Talk to a criminal defense attorney experienced in drug possession cases for more detailed information.