Federal and state drug possession laws make it a crime to willfully possess illegal controlled substances such as marijuana, methamphetamine, cocaine, LSD, “club drugs,” and heroin. These laws also criminalize the possession of “precursor” chemicals used in drug cultivation and manufacturing, as well as certain accessories related to drug use. Drug possession laws vary according to drug type, amount, and geographic area of the offense. Possession of small quantities may be deemed “simple” possession, while possession of large amounts may result in a charge of presumed “possession with intent to distribute.”
Possession of certain illicit drugs violates federal and state laws. While drug possession laws vary widely from state to state, the elements of the offense are generally the same. Prosecutors must be able to prove beyond a reasonable doubt that the defendant knew the drug in question was a controlled substance and that he or she knowingly had possession of, or control over, the drug. This may also include what is known as “constructive possession,” or access to an illegal drug. Such charges may be filed against one or more individuals who have keys to a van filled with narcotics, for example, rather than actually holding the drugs on their person.
Ft. Lauderdale Drug Possession Lawyer – Free Consultation – 954-522-9997 or Email
Drug possession laws generally fall into one of two main categories: simple possession (for personal use) and possession with intent to distribute. The latter category typically carries much stiffer penalties upon conviction, as compared to simple possession, in the interest of both punishing and deterring drug dealers. To prove possession with intent to sell, prosecutors may present evidence such as digital scales, baggies, large quantities of the drug, large amounts of cash in small bills or testimony from witnesses.
Drug possession laws also prohibit paraphernalia such as syringes, crack pipes or bongs. The Federal Drug Paraphernalia Statute defines what constitutes drug paraphernalia but usually hinges on a determination of primary use. For example, a newly purchased water pipe may not be considered a marijuana bong unless it has drug residue or is sold explicitly as a marijuana bong. Laws also exist to restrict the possession of certain chemicals or materials commonly used in the cultivation or manufacturing of drugs, such as the laboratory equipment used to make methamphetamine.
While some states have legalized possession of marijuana for medical use with a physician’s recommendation, it is still considered illegal in all cases under federal law.
If you are charged with possession of drugs, 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 problem of illicit drugs in different ways, while the federal government tends to have the toughest drug sentencing guidelines. But drug possession defenses are fairly universal across state lines. Some defenses challenge the stated facts, testimony or evidence in the case; others target procedural errors, often search and seizure violations; and some defendants challenge drug possession charges on the basis of an affirmative defense, such as the right to use medical marijuana in some states.
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 issues are quite common in drug possession cases. 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 drugs found in the trunk of a car after prying it open with a crowbar, assuming the suspect did not give permission, cannot be entered into evidence. If the defendant’s Fourth Amendment rights were violated, then the drugs cannot be used at trial and the charges typically are dismissed.
Drugs Belong to Someone Else
A common defense to any crime charge is to simply say you didn’t do it. The drug possession equivalent is to claim the drugs aren’t yours or that you had no idea they were in your apartment, for example. A skilled defense attorney will pressure prosecutors to prove that the joint found in the car actually belonged to his or her client and not 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 indeed the illicit drug it claims it is by sending the evidence to a crime lab for analysis. The crime lab analyst then must testify at trial in order for the prosecution to make its case.
A skilled attorney will make sure prosecutors are able to produce the actual drugs for which their client is being charged. Similar to the need for crime lab analysis, prosecutors who lose or otherwise lack the actual drugs risk having their case dismissed. Seized drugs often get transferred several times before ending up in the evidence locker, so it should never be assumed that the evidence still exists during 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 attorney can file a motion that, if approved by the judge, requires the department to release the complaint file of the given officer. This file contains the names and contact of information of those who made the complaints, who can then be interviewed by your attorney or a private investigator.
While law enforcement officials are free to set up sting operations, entrapment occurs when officers or informants induce a suspect to commit a crime he or she otherwise may not have committed. If an informant pressures a suspect into passing drugs to a third party, for example, then this may be considered entrapment. As a rule of thumb, entrapment occurs where the state provides the drugs in question.
Medical Marijuana Exception
The medical use of marijuana is never a defense in federal court but may be in states where medical marijuana has been legalized. States with such exceptions to marijuana laws typically require a doctor’s signed recommendation. But some of those states also provide for an affirmative defense by those arrested on marijuana possession charges who are able to show clear and convincing evidence of medical necessity.
Drug Possession Penalties and Sentencing
Those convicted on drug possession charges face a wide gamut of penalties at sentencing, varying from state to state. Penalties for simple possession range from a fine of less than $100 and/or a few days in jail to thousands of dollars and several years in state prison for the same offense. Simple drug possession sentences tend to be the lightest, while intent to distribute drugs or the cultivation/manufacturing of drugs carry 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 drug sentencing. These fixed sentences are based on the type of drug, the weight of the drug and the number of prior convictions. Kentucky, which has adopted similar mandatory minimum sentencing guidelines, has some of the toughest provisions. For simple possession, first offenders in Kentucky get two to 10 years in prison and a fine of up to $20,000. In contrast, California has some of the lightest drug possession sentences: between $30 and $500 in fines and/or 15 to 180 days in jail.
Many states have instituted what are known as drug courts, programs for felony drug defendants overseen by a judge that aim to rehabilitate the defendant (often repeat offenders) instead of taking the case to trial. Judges have substantial control over the operation of drug courts. A drug defendant who agrees to drug court spends roughly 12 to 15 months attending treatment sessions and undergoing random drug tests while appearing before the drug court judge on a regular basis. Those who fail to appear in court or fail drug tests are arrested and often given a brief jail sentence.
Factors that influence penalties for drug possession — aside from mandatory minimum sentences — include the defendant’s past 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), while possession of crack cocaine once carried the harshest penalties in most states. Depending on a given state’s sentencing rules, judges have a certain degree of discretion and can impose sentences ranging from fines, community service hours and probation to lengthy prison sentences. Talk to a criminal defense attorney experienced in drug possession cases for more detailed information.