The most prominent defenses in drug cases are illegal searches, equal access defenses, chain of custody defenses, and challenging the weight of the drugs. Search and seizure defenses deal with whether or not the police follow proper procedure in confiscating the drugs, i.e. did they violate your constitutional right to be free of an illegal search or seizure. In many cases the police overstep their authority. They do not obtain consent to search. They don’t develop probable cause or obtain proper warrants. The police will try to deny their shortcuts, but many sources of evidence and proper cross-examination can reveal constitutional violations. Police officers are not lawyers and they do not know the intricacies of search and seizure law. This defense is discussed in depth in a section of our website dedicated solely to search and seizure.
People often assert an equal access defense. This defense deals with situations where a person receives a drug charge, but others have the same access to the drugs. For example drugs are located in the central console of a car, and a passenger is riding with the individual. In Georgia the presumption is the owner or driver of the vehicle is the possessor of the contraband. This can be rebutted if another individual has access to the drugs in the car. Here the argument is the drugs could just as easily have been the passenger’s contraband, and the driver did not know about their presence. Often police officers will arrest everyone at the scene. The fact that an individual was there does not mean he/she was in actual control of the contraband.
The police will arrest everyone and try to get statements to build a case. On many occasions we have had charges dropped because the police could only show our client was present. The police must find evidence to show a person either constructively or physically possessed the drugs. Presence at the scene is not enough.
Another defense seen in drug cases is the chain of custody defense. Often the police do not keep accurate records. Drugs must be tested at a state certified lab to determine their molecular compounds and purity. Proper procedure must be followed in sending these drugs to the lab. They must be marked and preserved properly in order to be presented as evidence. Mistakes are made and can result in charges being dismissed.
The final defense used in drug cases is the challenge of a drugs weight. Often the difference in sentence depends on the calculation of the contrabands weight. Under Georgia law a Defendant is entitled to weigh the sample themselves. They can also analyze the drug is purity. For example cocaine or crack must have a 10% purity level when their weight is calculated. Also officers will weigh material that is not contraband. Our firm encountered a case where an officer weighed a marijuana plant in its pot to get the weight.
Many counties have erected drug courts as an alternative to jail and prison sentences. These courts have rigorous requirements for acceptance. Our firm has on many occasions had prosecutors waive certain requirements. We have seen many addicts rehabilitate and often our clients tell us how thankful they are for the program. Our firm has prevented several individuals from lengthy jail sentences.
Our office gathers information on the arresting officers to look for prior misconduct. We examine the case to see what defenses are available. We then explain what options are available and what to expect.
The one defense we often here that is not a viable defense is the “some dude defense.” Most prosecutors, judges, and juries do not give this much weight. It occurs when a person is caught with drugs on their person or in their house or car. They often say it was someone else’s drugs but cannot say who that person is or where they are located. Even if this is true it is so common for a person caught with drugs to indicate they are someone else’s drugs that courts are not usually persuaded. This defense becomes viable if some dude has a name and can be located. We have many people come into our office and indicate that the drugs were a friend’s or must have been left by a guy they dropped off. If you plan on asserting a defense like this some dude better have a name for it to be effective.
Important things to Know about Police Encounters
Most drug cases start with a police encounter, followed by a detention, and finally an officer discovers contraband. It is important to be respectful to police officers, but they are not there to make friends with people in possession of illegal narcotics. Do not consent to a search of your car or property if you believe or know contraband exists in or on the property requested. Officers are not “going to take it easy on you for cooperating.” If you do not consent to a search then an officer must have a legal reason to search your property. He cannot do it simply because you have refused to cooperate.
Many people have heard the saying possession is 9/10ths of the law. The presumption in law is the owner of property has constructive knowledge of what is on or in his or her property. People traveling in your car or on your property
A car has less privacy than a dwelling and the smell of a narcotic is enough reason to detain you for a possible search. Do not smoke marijuana in a vehicle. The most common reason a car is searched comes from the odor of burnt marijuana. This is a legal reason to search your vehicle. If you smoke marijuana in your vehicle then an officer is likely going to smell it or claim to smell it and ask to search the car. Make sure you have valid documents when driving. We see cases where a person is stopped initially for an expired tag or for no insurance, and faces 20 -30 years in prison, because they let their tag expire or didn’t pay their car insurance.
The time to challenge the legality of a stop is in court. Often an individual will panic when confronted by the police. If you run from the police and are caught then you will face additional charges. The property they encounter is deemed abandoned and you have no ability to challenge a police search. In addition the evasion causes the Jury or Judge to infer your guilt.
Make sure your windows possess a lawful tint, and all equipment is in proper working order. A common stop performed by officers looking for drugs are cars with tinted windows or equipment violations. An unlawful tint allows the police to stop and question the driver and its occupants. It is important to know that Georgia law does not consider stops pre-textual if the officer can point to some kind of equipment, moving, or tag violation. Many officers use stereotypes in crime prevention units, so don’t draw attention to yourself by driving a car that is “tricked out.”
You have a stronger privacy interest in your home, business, or dwelling. Make sure the police have a warrant before allowing entry. Many officers will conduct a “knock and talk” if they become suspicious about drug activity at a location. This is not enough to enter your dwelling. They must obtain consent from you or a warrant in order to enter the premises.
Finally, do not talk your way into a charge. If you are arrested ask for a lawyer. Police are trained in interrogation techniques. Very few people charged can out smart an officer. Tell them you will not talk unless your lawyer is present. A lawyer is better trained at negotiating.
The Severity of a Drug Charge
Our firm handles drug charges in Municipal, State, Superior, and Federal Courts. From misdemeanor marijuana charges to cocaine trafficking charges dealing with multiple kilograms, our firm has successfully defended individuals charged with all different types and amounts of contraband.
Georgia uses a Schedule system to determine the seriousness of the substance. Schedule 1 drugs are considered the most harmful. The drugs included in this category are heroin, THC, LSD, MDNA (ecstasy) and K2. Schedule 2 drugs include cocaine, oxycodone, methadone, and methamphetamine. The Schedules go all the way to Schedule 5. Marijuana is not a schedule drug but it is considered a controlled substance.
The type of drug, a person’s criminal history, the jurisdiction the offense was committed and the amount the person possesses determine what kind of sentence a person will likely face. Often there are good programs and/or defenses to drug charges. Most counties treat addicts differently than dealers.
The Federal Courts use a sentencing guideline along with other factors to determine the length of a person’s sentence. The Court uses a system similar to Georgia’s Schedule system in determining the severity of the drug and it takes into account the weight of the drugs that are confiscated. Sentencing guidelines are not mandatory, but they are very persuasive.
Our firm has handled multiple drug cases in the Federal system. Either through defenses or cooperation, we have been able to obtain sentences deviating from the Federal Sentencing Guidelines in our client’s favor. The Federal system requires a person to serve at least 85% of their sentence before they are eligible for release for good behavior. This is different than State charges where a person can be eligible for parole after close to a third of their prison sentence.
Important: Federal and State Courts are different sovereigns. If you are involved in a very large case the dismissal of the State charge does not bar Federal prosecution. Jeopardy does not attach.
Possession, Possession with Intent, and Trafficking
Drug charges carry stiff penalties. Any person charged with a violation of Georgia’s Controlled Substances Act faces jail time and a license suspension. If a Defendant pleads guilty to a charge under Georgia’s Controlled Substances Act, he or she will receive a license suspension of at least six months and a possible jail or prison sentence of one year or more.
A simple possession charge for a Schedule 1 or 2 drug requires a 2 to 15 year sentence for a first offense. A second or subsequent offense requires 5 to 30 years. A simple possession charge for a Schedule 3, 4, or 5 drug requires 1 to 5 years.
A second offense in this category requires 1 to 10 years. Possession with intent to distribute requires 5 to 30 years on a first offense for Schedule 1 or 2 drugs and a potential life sentence for a second offense.
All of these sentences can be served on probation and are often eligible for parole early if prison time is given. They all carry license suspensions if a person is found or pleads guilty.
Trafficking in Georgia requires jail time.
The legislature and court system has taken the view that you are a drug dealer that is hurting your community. There are mandatory minimums a person must serve if he or she pleads guilty or is found guilty at trial. Below is a list of minimum sentences for trafficking.
Cocaine and Methamphetamine:
28 grams to 199 grams - minimum 10 years,
200 grams to 399 grams - minimum 15 years,
400 grams or more - minimum 25 years. O.C.G.A. 16-13-31(a)
10 lbs. to 1,999 lbs - minimum 5 years,
2,000 lbs to 9,999 lbs - minimum 7 years,
10,000 lbs or more - minimum 15 years. O.C.G.A. 16-13-31(c)
4 grams to 13 grams - minimum five years,
14 grams to 27 grams - minimum 10 years,
28 grams or more - minimum 25 years. O.C.G.A. 16-13-31(b)
28 grams to 199 grams - minimum 3 years,
200 grams to 399 grams minimum 5 years,
400 grams or more minimum -10 years. O.C.G.A. 16-13-31.1
These sentences are eligible for parole in many instances. With proper negotiating tactics and an aggressive defense, many prosecutors will reduce trafficking charges to possession with intent or a lower level of trafficking. If the defense is strong enough or the information a person can provide is valuable enough, then the charge may be dismissed or immunity granted against a criminal prosecution.
Under Georgia law we have a plea known as a conditional discharge for simple possession charges under the O.C.G.A. § 16-13-2(a). The presiding Judge must approve this type of plea. This allows a person to prevent a conviction if they successfully complete their sentence. If a person completes their sentence then their record will indicate a not guilty adjudication. The reason this is important is it allows a person to keep their driving privileges and can result in several personal liberties remaining intact such as the right to carry a firearm, serve on a jury, and vote.
The second plea that can be used for any drug charge is Georgia’s First Offender. This plea can be used with more serious drug charges, but it is a two edged sword. A person runs the risk of a harsher sentence if they do not complete the sentence without incident. Under First Offender if a person violates probation and the person has plead under Georgia’s First Offender Act then the sentencing Judge can reopen the case and give the individual the maximum sentence. However, if a person successfully completes the first offender then the person will be adjudicated not guilty. This has the same effect as the conditional discharge no conviction will be on your record.
Finally, many counties have erected drug courts and diversion programs. These allow a prosecutor to hold open a charge to see if an individual can complete the program. Upon the completion of the program the case is dismissed.