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A Brief Overview of Drug Cases

Posted by attorney Edward Dowling

Generally, there are two basic charges :

1) Possession

2) Sale

1) Possession has some variants such as possession for personal use and possession with intent to sell. Possession with intent to sell is a more serious charge because first, public policy considers pushing drugs ( especially on young kids ) to be a more serious crime against the public than using for personal use, and second because someone who has intent to sell will generally have a much higher quantity in his possession than someone who is a recreational user.

2) Sale also has some variants depending on whether someone is a small local dealer selling to a few customers who are recreational users , selling to other dealers who in turn re- sell to larger dealers or major distributors who deal in large quantities and large geographic areas of distribution much like a legitimate corporation doing business nation wide or Internationally. The " Drug Business " , although illegal, is the biggest business in the world with gross revenue in the billions of dollars far exceeding the revenue from the biggest legal business.

These crimes range from a very low misdemeanor for low quantities in a possession charge through all classes of Felonies( A-E, class A being the most serious ) including Violent felonies ( drug dealers killing and otherwise doing violence to other dealers etc ). The more serious charges carry mandatory sentences of many years in prison as well as fines and confiscation of the illegal substances, any vehicles used, any weapons and the fruits of their business, i.e., the money ( usually cash ).

The bigger cases involving major distributors of large quantities are usually Federal crimes( which carry much greater sentences than state crimes ) since " interstate commerce "( albeit illegal interstate commerce ) is involved because of distributing and transporting across state lines as opposed to selling just within one state. This is why State and Federal prosecutors concentrate on major dealers and distributors as opposed to low level dealers and recreational or casual users ( although numerous arrests are still made on low level dealers and casual users in the government’s “War on Drugs “).

Prosecutors work in cooperation with the police ( and FBI and DEA ( Drug Enfocement Agency ) and other Authorities and Government Agencies for Federal charges ) and use different methods to find, apprehend and prosecute individuals and organizations ( Drug Cartels ) for their illegal trafficking in Drugs. One method is the use of police confidential informants ( CI’s), who may be criminals themselves , or may be undercover police officers. A CI usually observes a transaction , or illegal drug storage warehouse or operation out of an apartment, house, abandoned or other building and informs the police who then arrest the people involved. CI’s are commonly called " snitches" and may or may not be paid or given some other form of compensation such as a favorable plea bargain or even a dismissal for their own crimes, for the dangerous service they perform. Drug dealers generally do not like " snitches" and death or other violence is often a consequence, if a snitch is found out. This is why there is the witness protection system which gives the person a new identity and a new location to live in ).

Another method the police and prosecutors use is to have an undercover officer who observes a drug transaction and radios or otherwise contacts another police officer to make the arrest. Another method is for an undercover police officer posing as a customer, to actually buy drugs and then contact another police officer to make the arrest. This is commonly known as a " Buy and Bust “ operation ( or sting ). Still another method, usually reserved only for cases in which the prosecutors are going after major Dealers/ Distributors ( due to the danger involved ), is for an undercover officer to infiltrate a gang, or cartel or other large drug entity. This usually takes time because the undercover officer must establish a relationship with all other members of the group and be accepted in the group and be trusted and respected and not be suspected of being an undercover officer, and certainly not found out to be an undercover officer ( usually death would be the result if found out ).

There are other methods that are used but any further discussion is way beyond the scope of this article.

Some of the things a defense attorney, representing someone or some group that has been charged with drug crimes, should do, are as follows : 1) a thorough investigation of the facts including interviewing any witnesses ( just as in any criminal case ); 2) making an omnibus motion ( see previous article regarding motions ) including any motions for discovery, suppression of evidence (drugs, weapons, etc), suppression of statements, identification hearings and other pretrial hearings; 3) researching the statutory and case law; 4) evaluating any potential defenses and the strengths and weakneses of those defenses as well as the strengths and weaknesses of the prosecutor’s case and whether the defendant should present a case and whether he should testify and evaluate other strategies:5) whether to plea bargain or go to trial,, etc

Some defenses are: 1) whether the police arrested the correct person (sometimes the police officer that observes the transaction is not the one that arrests the defendant and thus although the police officer that observes the transaction describes the defendant and the location ( street corner or building, etc ) the arresting officer may arrest someone else that matches the description at the location especially in a large city area ; 2) there is no proof that the substance transferred in the transaction was in fact an illegal drug. In a possession with intent to sell charge, as opposed to mere possession, no proof that the defendant had the requiste intent to sell ( if this defense is successful the charge will usually be reduced to possession ); 3) the quantity charged cannot be proven and thus a higher quantity is reduced to a charge of possession of a smaller quantity which can result in a much lower sentence. There are other defenses depending on the facts and circumstances of the case.

There is an ongoing debate as to whether certain drugs should be legalized. The drug most talked about in this regard, is, of course,marijuana. In some states it is already legal for the restricted purpose of medical use only- basically to manage pain better so the patient can enjoy daily activities with less or no pain. This is still very new and experimental and controversial even in the states that do legalize it. It remains to be seen whether it will stay legal in these states and whether it will become legal in other states and whether it will become legal for use without the restriction of for" medical use only."

Watch for more articles on Criminal and Civil Law.

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