Defense Strategies Used in Drug Cases
There are a variety of defense strategies that can be employed in drug-related cases. The most common are: it’s not mine, illegal stop, illegal search, and not illegal drugs.
It’s Not Mine
It would be helpful to show the prosecutor or the jury that the substance belonged to somebody else. Did the defendant actually possess the drug? Did the defendant have constructive or joint possession of the drug? Mere proximity to a substance is insufficient proof of possession. There must be additional evidence of the defendant’s knowledge and ability to exert control over the substance. Such knowledge and control may be established by circumstantial evidence. For example, I’m standing on a sidewalk. Somebody walks by me, and they drop a bag of drugs in front of me. I don’t even see them do this. The police walk up to me, and they see this bag of drugs in front of me. Do I have possession? No way! I certainly don’t have actual possession, and I don’t even have constructive possession. I had no knowledge of the drugs. The mere presence of drugs in proximity to somebody is insufficient to prove that the person possessed the drugs.
Illegal Stop
Did the officer truly have reasonable suspicion to believe that a crime was committed that enabled them to stop the vehicle? For instance, if the police officer says that the reason for stopping the car was a broken taillight, then it’s important to know whether the taillight was actually broken. An officer can only pull you over for a lawful reason. They can’t make up reasons to pull people over. If the stop is bad—or illegal—then any evidence gained after it should be thrown out.
Illegal Search
Did the officer have probable cause to believe that a crime was committed that enabled them to conduct a search? Did one of the exceptions exist that allowed them to conduct a search? If the exception did not exist, and there was no warrant, then it was an illegal search. Anything discovered because of that search should be suppressed and not allowed to be entered into evidence.
Not Illegal Drugs
People carry around all sorts of things that law enforcement may believe are drugs. It’s possible to get arrested for possessing a substance that is perfectly legal. The field test kits that officers sometimes use frequently give false positives. Some kits have given false positives for chocolate, oregano, aspirin, and even air! Test kit results should be looked at with much skepticism. The substance should be sent to the OSBI crime lab to get tested. It’s also possible that mistakes at the lab can result in false report results.
What Sets The Urbanic Law Firm Apart in Handling Drug Cases
After I review the evidence, I bring my client in to review the evidence. This way, the client know exactly how strong or weak of a case each side has. There is no “hiding the ball” in this law firm when it comes to sharing evidence with our clients. As prescription drug use increases and marijuana legalization efforts continue to succeed, there will be a greater likelihood of DUI-drug arrests. It’s important for an attorney to know the procedures law enforcement must follow when arresting an individual whom they believe was driving under the influence of drugs.
Not only am I a Standard Field Sobriety Test (SFST) practitioner, but I am also a SFST instructor. I have gone through the same NHTSA-certified training that law enforcement officers go through to be eligible to teach SFSTs at the academy. There is a certain way to administer the field sobriety tests. Many officers are not proficient in the administration of those tests, so it’s crucial to have an attorney who can spot the errors. It is very powerful to a jury when the defense attorney knows more about SFSTs than the officer and can highlight the officer’s lack of knowledge.
Additionally, I am an Advanced Roadside Impaired Driving Enforcement (ARIDE) practitioner. ARIDE is the DUI-drugs equivalent to SFSTs. The purpose of ARIDE is to detect someone who driving under the influence of drugs. Every officer is SFST trained, and now almost all officers are ARIDE trained. With the increasing numbers of people driving after consuming some type of “drug,” knowing how ARIDE-trained officers operate is becoming increasingly important.
I also completed the Drug Recognition Expert (DRE) Overview course. This course gives defense attorneys an understating of the DRE program and what it takes to become a DRE. Drug Recognition Experts are specially-trained law enforcement officers whose focus is to determine the type of drug(s) an individual is under the influence of. Their training lasts several months, and their evaluation of a suspect will typically last over an hour. ARIDE-trained officers are supposed to get probable cause for an arrest, and DREs are supposed to prove someone’s intoxication beyond a reasonable doubt. An attorney who is not familiar with DRE procedures may overlook a critical error in the DRE’s training records or report.
Can Drug Charges Get Dismissed or Reduced?
It is possible to get drug charges dismissed or reduced. The likelihood of any of those things happening is fact based. I’ll only know how likely a dismissal is after getting and reviewing all of the available discovery (evidence) in a case. For first-time offenses, it’s sometimes possible to work out a deal that results in nothing worse than a deferred sentence.
With a deferred sentence, the defendant pleads guilty and will have some probationary requirements and time to prove that he or she can stay out of trouble. The charges will be dismissed once the defendant completes the requirements and he or she hasn’t committed any new crimes for that period of time. They can then possibly get that case expunged from their record. But, the more charges a person has, the more difficult it makes it to get a deferred sentence. Something I do with all my clients charged with possession of drugs is to immediately start them on classes. This begins with an evaluation. They talk about the individual’s use of drugs, and the counselor generally recommends a treatment regimen—usually classes.
The number of class hours varies depending on the level of the type of charges or the type of drugs. Then, the individual goes back to the counselor and has a final evaluation. This helps my clients in a couple of ways. First, the client will be able to get a head start on the classes that they will likely be required to do. Second, it generally improves the plea offer from the prosecutor. There typically must be a legal reason to have charges dismissed or reduced.
A good way to get charges dismissed is to prove that the drugs belonged to somebody else. For example, if fingerprints on the bag belong to only the other person in the car, then there would be a high probability of getting that charge dismissed. A bad stop or illegal search are good reasons charges can get dismissed. If the prosecutor will have a difficult time getting that evidence admitted, then it could be possible to have the charges dropped. If I can convince a prosecutor that the client was merely present when the drugs were there and he or she had no connection to the drugs, then chances of getting charges dropped increase.
There are usually Fourth Amendment issues in drug possession cases. A lot of people who are arrested for drugs are pulled over by law enforcement or stopped by law enforcement in some way are interrogated and searched. Many cases are thrown out during pre-trial due to Fourth Amendment search and seizure violations. First, I need to see if the stop was legal. Officers must have reasonable suspicion to believe that there was a violation of law to pull the car over. Second, I’ll look to see if the officer had probable cause to believe that the person had drugs in their car. If the stop was illegal or there was no probable cause, then there may be solid grounds for dismissal. Even if I believed there was an illegal search, a bad stop, or my client didn’t have possession, the prosecutor may still not dismiss the case because prosecutors are very reluctant to dismiss cases in general. Instead of getting charges dismissed, the plea offer may improve. It’s worth it to the prosecutor for a defendant to receive a lighter punishment in order to not go through a suppression hearing and potentially lose at trial. They would rather get something instead of potentially getting nothing.
When I present these issues to the prosecutor, it’s not just me telling them whatever comes to mind. I have to do research. I need to know my cases well and identify the issues. I find previously decided cases that have similar facts and issues of law to my cases and present them to the prosecutor. I can say, “Here’s a case that was recently decided by the Court of Criminal Appeals, and they sided with the defendant. The facts of that case were similar to the facts in my case, so this is why I think you should dismiss my case.” Sometimes, a case can be dismissed due to lack of evidence. My very first case as a student public defender involved possession of marijuana. There was supposed to be a dashcam video of it. I asked repeatedly for this dashcam video. The prosecutor ultimately dismissed the case because the video that should have existed didn’t exist. I made it clear that the evidence would still exist had the officer followed the correct procedure.
Alternative Programs for Drug Offenders
Most counties in Oklahoma have a drug court program. However, there are some very stringent requirements for that program. The following are the basic requirements to enter drug court in Oklahoma:
- The offender’s arrest or charge does not involve a crime of violence against any person, unless there is a specific treatment program in the jurisdiction designed to address domestic violence and the offense is related to domestic violence and substance abuse;
- The offender has no prior felony conviction in this state or another state for a violent offense within the last ten years, except as may be allowed in a domestic violence treatment program authorized by the drug court program;
- The offender’s arrest or charge does not involve a violation of the Trafficking In Illegal Drugs Act;
- The offender has committed a felony offense; and
- The offender:
- admits to having a substance abuse addiction,
- appears to have a substance abuse addiction,
- is known to have a substance abuse addiction,
- the arrest or charge is based upon an offense eligible for the drug court program, or
- is a person who has had an assessment authorized by 43A OS § 3-704 and the assessment recommends the drug court program.
Sources: 63 OS § 2-402 and 22 OS §§ 471.2
Current as of April 1, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.