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.
Saturday, August 22, 2009
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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