Aggressively Defending the Rights of the Accused Since 1995 REQUEST A FREE CONSULTATION

Drug Charges

Frequently Asked Questions

Q:

What is “constructive” possession?

A:

Constructive possession is where the prosecutor can convict a defendant of Drug Possession even though the defendant did not have the drug in his hand or pocket. The technical requirement for conviction are (1) the defendant new that the drugs were there and (2) the defendant intended to use or control the drugs. Many prosecutors fail to realize the many court cases which hold that the “mere presence” near drugs is not enough to convict a defendant.

Practically, speaking here are the facts which can get a person convicted. If the drugs are in a back pack in a car, the defendant will be convicted if the officer finds defendant’s identification, mail, or phone in the back pack. Where the drugs are found on the floor of the car, a defendant can be convicted of “constructive possession” if the drugs are in plain view and the defendant has a pipe or needle on him that is used to ingest that type of drug.

A defendant is more likely not to be convicted if one of more of these situations apply: (1) The car was registered to another person, (2) the drugs were hidden from view, (3) the defendant had no needle or pipe used to ingest the drug, or (4) the drugs were in a container that belonged to another person.

Q:

What are some technical defenses to drug charges?

A:

Often the police put all the little bags of marijuana into one big bag and send it to the lab to be weighed. The police are not allowed to do that. Therefore, since it is possible that only one bag had marijuana and the other bags had fake marijuana, then the state can only charge defendant for the weight of one bag.

Same thing for when the lab examines only one pill of a bunch of pills. Often the lab never examines some of the drugs sent to it. This is a mistake that happens often.

The prosecutor never re-sends the drugs to the lab because it is just too much trouble. So the prosecutor offers a plea bargain to a lesser charge.

Q:

What if a “friend” coerces the defendant to sell him some drugs?

A:

This is called entrapment and happens too many times. Even if the defendant has been a drug dealer in the past, the charges can still be thrown out if (1) The informant coerces the defendant into making this sale or (2) the informant convinces the defendant to sell him a much greater amount of drugs than he usually sells.