Under the Uniform Controlled Substances Act, delivery of a controlled substance means merely the transferring of an illegal drug from one person to another, regardless of whether money or anything else of value was exchanged for the drugs. Delivery of a controlled substance covers illegal drug sales and it also includes drug transfers that don't amount to sales or transactions where there is not sufficient evidence to prove that money changed hands.
In addition to prohibitions on drug transactions that are not technically sales, there is also a prohibition on transactions involving substances that are not controlled substances and are not illegal. The Washington statute outlawing the sale of what is commonly called "bunk" is RCW 69.50.4012. Under this statute, you are guilty of delivering an uncontrolled substance in lieu of a controlled substance after you have previously negotiated or arranged to sell or otherwise transfer an actual controlled substance. This is where the drug buyer gets ripped off by the drug dealer and is known in Washington courts as a "VUCSA burn." A VUCSA burn is a class C felony in Washington.
We also have a statute making it illegal to manufacture, deliver, or possess a counterfeit controlled substance. What I have not found is a specific provision under the Uniform Controlled Substances Act that would make it illegal to deliver an empty container with no substance in it whatsoever to someone who had previously arranged with the seller to buy a controlled substance.
In State v. Anderson and in State v. Eddie, the Washington State Court of Appeals has said that the prosecutor must prove beyond a reasonable doubt that the substance that was actually delivered was not a controlled substance, but the prosecutor does not need to prove the exact identity of the uncontrolled substance. The court did not address the situation that I described above where a person delivers an empty container that contains no substance, controlled or uncontrolled.
Thursday, November 5, 2009
Tuesday, October 20, 2009
PENALTIES FOR POSSESSION OF MARIJUANA (LESS THAN 40 GRAMS) IN WASHINGTON STATE
In the last several months, when I have mentioned the charge of marijuana possession, many people have responded with something like, "is that even illegal in Seattle anymore?" While it may not be the highest priority for the Seattle Police Department, the answer is yes, possession of marijuana is still illegal in Seattle and you can still go to jail for it. And just because the law regarding marijuana possession may not be vigorously enforced in the city of Seattle, it is still enforced in other parts of King County and Washington State; not too long ago someone contacted me about a possession of marijuana charge in Bellevue.
Possession of marijuana in the amount of 40 grams or less is a simple misdemeanor punishable up to 90 days in jail and a $1,000 fine. Like DUIs, this charge carries a minimum mandatory sentence. If you are convicted of this offense, there is a minimum mandatory jail sentence of 24 consecutive hours and a $250 fine. For all possession charges after the first conviction, there is a minimum fine of $500. Unlike DUIs, however, the minimum mandatory jail sentence is not increased upon subsequent marijuana possession convictions.
If you are a minor between the ages of 13 and 21, this charge can have serious consequences with regard to your driver's license. In Washington State, the court is required to notify the Department of Licensing (DOL) of any drug convictions if you are between the ages of 13 and 21. DOL will revoke your driver's license and this revocation is mandatory.
Because it is mandatory, you are not entitled to a DOL hearing prior to the revocation. If you are between the ages of 15 and 18, your driving permit or driver's license will be revoked for either one year from the date you are convicted or until you turn 17, depending on whichever date is later. If you are convicted of a subsequent drug offense, your license will be revoked for 2 years and the revocation will not begin until your first revocation has ended.
Although simple possession of marijuana in the amount of 40 grams or less is not the most serious drug offense, it still carries penalties- especially for those under 21 years of age- and the police do enforce the law, albeit possibly less zealously in the city of Seattle. I've already posted some of the defenses that apply to drug charges and will continue to post further defenses. If you are found to be guilty of this charge, it will appear as a criminal conviction on your record. For that reason alone, it is in your best interest to contact a criminal defense lawyer who handles drug cases as soon as possible if you are cited or arrested for possession of marijuana.
Possession of marijuana in the amount of 40 grams or less is a simple misdemeanor punishable up to 90 days in jail and a $1,000 fine. Like DUIs, this charge carries a minimum mandatory sentence. If you are convicted of this offense, there is a minimum mandatory jail sentence of 24 consecutive hours and a $250 fine. For all possession charges after the first conviction, there is a minimum fine of $500. Unlike DUIs, however, the minimum mandatory jail sentence is not increased upon subsequent marijuana possession convictions.
If you are a minor between the ages of 13 and 21, this charge can have serious consequences with regard to your driver's license. In Washington State, the court is required to notify the Department of Licensing (DOL) of any drug convictions if you are between the ages of 13 and 21. DOL will revoke your driver's license and this revocation is mandatory.
Because it is mandatory, you are not entitled to a DOL hearing prior to the revocation. If you are between the ages of 15 and 18, your driving permit or driver's license will be revoked for either one year from the date you are convicted or until you turn 17, depending on whichever date is later. If you are convicted of a subsequent drug offense, your license will be revoked for 2 years and the revocation will not begin until your first revocation has ended.
Although simple possession of marijuana in the amount of 40 grams or less is not the most serious drug offense, it still carries penalties- especially for those under 21 years of age- and the police do enforce the law, albeit possibly less zealously in the city of Seattle. I've already posted some of the defenses that apply to drug charges and will continue to post further defenses. If you are found to be guilty of this charge, it will appear as a criminal conviction on your record. For that reason alone, it is in your best interest to contact a criminal defense lawyer who handles drug cases as soon as possible if you are cited or arrested for possession of marijuana.
Monday, September 14, 2009
CONSTRUCTIVE POSSESSION: WHO IS IN POSSESSION OF DRUGS WHEN THERE ARE MULTIPLE PEOPLE IN THE VEHICLE OR HOME?
A very common situation I see as a drug crime lawyer is where there are three or four passengers riding together in a vehicle and there happens to be illegal drugs in that vehicle. Sometimes the driver is the owner of the vehicle. Sometimes the owner is not present. If the police stop the vehicle and discover the drugs, who can they charge with possession? If the drugs are in someone’s pocket, the police will almost certainly charge that one individual with possession and not charge the others.
But what about the times when there is a bag of marijuana or cocaine in the vehicle that is equally accessible to the driver and to every passenger? Under Washington State law, possession of a controlled substance can be either 1) actual physical possession where you are actually holding the substance or it is in your pocket or 2) “constructive possession.”
Constructive possession is a legal term that means that you exercised dominion and control over something. If the police and the prosecutor can show that you exercised dominion and control over the drugs, you can be found to have had constructive possession and be charged with a violation of the Uniform Controlled Substances Act (VUCSA). Just because you are the owner of the vehicle does not mean that you are in constructive possession of drugs if there are drugs present in the vehicle. The Washington courts have ruled that the prosecutor must prove that you exercised dominion and control over the drugs, not just the area or the premises. This applies to homes as well as vehicles.
Constructive possession means something more than that you merely knew that drugs were present in the vehicle or home. It also means something more than mere proximity- that you were close in distance to the drugs. The courts have said that merely being close to drugs and knowing that the drugs are present are not, by themselves, factors that can make you in constructive possession of the drugs.
The court uses a “totality of the circumstances” approach in which they consider a number of factors in determining whether you exercised dominion and control over the drugs. With this approach, constructive possession is determined on a case by case basis. The more you exercise dominion and control over the area that the drugs are in, the more likely you will be found to be in control of the drugs. Also, the more permanent your exercise of dominion and control over the premises, the more likely you will be found to be in constructive possession of the drugs that are found on the premises. That means that an overnight guest who is staying in just the basement will be less likely to be found in constructive possession of drugs that are found upstairs when compared to a tenant who has lived there continuously for one year with unlimited access to the house.
But what about the times when there is a bag of marijuana or cocaine in the vehicle that is equally accessible to the driver and to every passenger? Under Washington State law, possession of a controlled substance can be either 1) actual physical possession where you are actually holding the substance or it is in your pocket or 2) “constructive possession.”
Constructive possession is a legal term that means that you exercised dominion and control over something. If the police and the prosecutor can show that you exercised dominion and control over the drugs, you can be found to have had constructive possession and be charged with a violation of the Uniform Controlled Substances Act (VUCSA). Just because you are the owner of the vehicle does not mean that you are in constructive possession of drugs if there are drugs present in the vehicle. The Washington courts have ruled that the prosecutor must prove that you exercised dominion and control over the drugs, not just the area or the premises. This applies to homes as well as vehicles.
Constructive possession means something more than that you merely knew that drugs were present in the vehicle or home. It also means something more than mere proximity- that you were close in distance to the drugs. The courts have said that merely being close to drugs and knowing that the drugs are present are not, by themselves, factors that can make you in constructive possession of the drugs.
The court uses a “totality of the circumstances” approach in which they consider a number of factors in determining whether you exercised dominion and control over the drugs. With this approach, constructive possession is determined on a case by case basis. The more you exercise dominion and control over the area that the drugs are in, the more likely you will be found to be in control of the drugs. Also, the more permanent your exercise of dominion and control over the premises, the more likely you will be found to be in constructive possession of the drugs that are found on the premises. That means that an overnight guest who is staying in just the basement will be less likely to be found in constructive possession of drugs that are found upstairs when compared to a tenant who has lived there continuously for one year with unlimited access to the house.
Saturday, August 22, 2009
DRUG POSSESSION DEFENSES- UNWITTING POSSESSION
As a criminal defense lawyer who handles drug crime cases in Washington, I have a number of defenses at my disposal in challenging a possession charge, whether it be simple possession of marijuana or possession of methamphetamine, cocaine, or heroin with the intent to sell.
The crime of possession of a controlled substance or Violation of the Uniform Controlled Substances Act (VUCSA) is what is called a strict liability offense. What that means is that the prosecutor does not need to prove that you had any INTENT to possess the controlled substance.
Most crimes have some sort of intent element that the prosecutor must prove. For example, in a burglary case, the prosecutor must prove that you intended to commit a crime in the building in which you unlawfully entered. In an assault charge, the prosecutor must prove that there was some sort of intent to inflict injury to another person. In a theft case, the prosecutor must prove that you had the intent to steal something. This is not so with illegal drug possession.
Under Washington law, the prosecutor can prove you are guilty of possession of a controlled substance whether you intended to possess the drugs or not. But there is still the defense of “unwitting possession.” Unwitting possession is what is called an “affirmative defense.” As you may well be aware, the burden is on the state to prove beyond a reasonable doubt that you are guilty of the crime they are charging. With an affirmative defense, the burden is now on you to prove you are innocent.
You may be thinking that this in unconstitutional because you have long heard that we are all innocent until proven guilty. Well, because drug possession is a strict liability crime and the state doesn’t have to prove you intended to possess illegal drugs, the courts say that shifting the burden back to you to prove that you did not know you were possessing a controlled substance is not unconstitutional.
So here’s the good news: you do not need to prove beyond a reasonable doubt that you were unaware that you were in possession of drugs. You only must show by a “preponderance” that you did not know you had possession. That means you are showing the judge or jury that you PROBABLY did not know you were in possession. As you can imagine, this is not always an easy defense, but many drug cases are not easy. A trained and skilled trial lawyer with knowledge of Washington drug laws can help you with this defense and either obtaining a dismissal or a verdict of not guilty.
The crime of possession of a controlled substance or Violation of the Uniform Controlled Substances Act (VUCSA) is what is called a strict liability offense. What that means is that the prosecutor does not need to prove that you had any INTENT to possess the controlled substance.
Most crimes have some sort of intent element that the prosecutor must prove. For example, in a burglary case, the prosecutor must prove that you intended to commit a crime in the building in which you unlawfully entered. In an assault charge, the prosecutor must prove that there was some sort of intent to inflict injury to another person. In a theft case, the prosecutor must prove that you had the intent to steal something. This is not so with illegal drug possession.
Under Washington law, the prosecutor can prove you are guilty of possession of a controlled substance whether you intended to possess the drugs or not. But there is still the defense of “unwitting possession.” Unwitting possession is what is called an “affirmative defense.” As you may well be aware, the burden is on the state to prove beyond a reasonable doubt that you are guilty of the crime they are charging. With an affirmative defense, the burden is now on you to prove you are innocent.
You may be thinking that this in unconstitutional because you have long heard that we are all innocent until proven guilty. Well, because drug possession is a strict liability crime and the state doesn’t have to prove you intended to possess illegal drugs, the courts say that shifting the burden back to you to prove that you did not know you were possessing a controlled substance is not unconstitutional.
So here’s the good news: you do not need to prove beyond a reasonable doubt that you were unaware that you were in possession of drugs. You only must show by a “preponderance” that you did not know you had possession. That means you are showing the judge or jury that you PROBABLY did not know you were in possession. As you can imagine, this is not always an easy defense, but many drug cases are not easy. A trained and skilled trial lawyer with knowledge of Washington drug laws can help you with this defense and either obtaining a dismissal or a verdict of not guilty.
Thursday, August 20, 2009
DEFENDING A DRUG CHARGE WHEN THE POLICE HAVE PHYSICAL EVIDENCE AGAINST YOU
As a Seattle drug crimes lawyer, I have observed many issues come up in the defense of a drug case. Drug cases, also known as VUCSA cases are among the most frequently charged felonies in Washington State. VUCSA stands for Violation of the Uniform Controlled Substances Act. Aside from possession of less than 40 grams or less of marijuana, all drug crimes are felonies in Washington State. The issue that is probably the most frequent in a VUCSA case is the illegal search by the police.
In many cases, the police do not have probable cause to stop a person and only after conducting an illegal search do they find drugs and then arrest the person. This happens ALL THE TIME. Do not think that your case is lost just because the police found what they may be able to prove is a controlled substance. At every step of a police investigation, there must be probable cause or at least reasonable suspicion that you are engaged in illegal activity to justify a search. The worst thing you can do is consent to a search. The police do not ask you for consent because they’re just being polite- they’re cops. They are asking for your consent because they have to.
Often times they have no reason whatsoever to search you, but they just want to anyway to see what kind of incriminating evidence they can get out of you. Again, do not consent to searches. But even if you consented to a search and the police found a controlled substance in your possession, you still may have a valid claim against the legality of the search.
In Washington State, there are certain factors that the court considers in determining whether a person truly gave the police voluntary consent. The Washington State Supreme Court has held that one of the factors to be considered is whether the police informed the person being searched that they have the right to refuse consent. There are many other ways to challenge a drug case that are beyond the scope of this posting.
Drug crimes lawyers are thoroughly familiar with the law of search and seizure and look vigorously for problems with police conduct. Your case can be dismissed if a criminal defense lawyer who focuses on drug crimes files the proper motions and advocates on your behalf. I have written many suppression motions in drug cases including possession of marijuana at the trial level to possession of crack cocaine in a felony appeal.
You do not need to plead guilty if you have been arrested for a drug crime. The first line of defense you have is to challenge the search. Contacting a criminal defense lawyer who is experienced in identifying whether there has been an illegal search is the only way you can effectively challenge the admissibility of any evidence of drugs or a controlled substance that the police found in your possession.
In many cases, the police do not have probable cause to stop a person and only after conducting an illegal search do they find drugs and then arrest the person. This happens ALL THE TIME. Do not think that your case is lost just because the police found what they may be able to prove is a controlled substance. At every step of a police investigation, there must be probable cause or at least reasonable suspicion that you are engaged in illegal activity to justify a search. The worst thing you can do is consent to a search. The police do not ask you for consent because they’re just being polite- they’re cops. They are asking for your consent because they have to.
Often times they have no reason whatsoever to search you, but they just want to anyway to see what kind of incriminating evidence they can get out of you. Again, do not consent to searches. But even if you consented to a search and the police found a controlled substance in your possession, you still may have a valid claim against the legality of the search.
In Washington State, there are certain factors that the court considers in determining whether a person truly gave the police voluntary consent. The Washington State Supreme Court has held that one of the factors to be considered is whether the police informed the person being searched that they have the right to refuse consent. There are many other ways to challenge a drug case that are beyond the scope of this posting.
Drug crimes lawyers are thoroughly familiar with the law of search and seizure and look vigorously for problems with police conduct. Your case can be dismissed if a criminal defense lawyer who focuses on drug crimes files the proper motions and advocates on your behalf. I have written many suppression motions in drug cases including possession of marijuana at the trial level to possession of crack cocaine in a felony appeal.
You do not need to plead guilty if you have been arrested for a drug crime. The first line of defense you have is to challenge the search. Contacting a criminal defense lawyer who is experienced in identifying whether there has been an illegal search is the only way you can effectively challenge the admissibility of any evidence of drugs or a controlled substance that the police found in your possession.
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