The recently concluded Afghanistan War was a “forever war” that seemed endless. The War on Drugs is much the same. President Richard Nixon issued this declaration of war in 1971. Today, more than fifty years later, there’s still no end in sight. So, authorities have changed tactics. They now focus primarily on drug possession enforcement. Currently, over 80 percent of the drug-related cases in Cobb County are simple possession charges.
Public perception of drug possession has changed as well. To many people, drug possession is a health and safety issue, not a criminal law issue. Since jurors are less willing to convict these defendants, a Marietta criminal defense lawyer has an excellent chance to successfully resolve drug possession charges. Prosecutors are less willing than ever to roll the dice at trial.
Jail Release
If a Marietta criminal defense attorney acts quickly and decisively, most drug possession defendants only spend two or three hours behind bars. Pretrial release, or OR (own recognizance) release, is usually available in these cases.
Usually, if defendants pay small fees and agree to follow release terms, the sheriff releases them. These terms usually include:
- Appearing at required hearings (some Cobb County judges allow defendants to skip procedural hearings),
- Maintaining current contact information,
- Avoiding further legal trouble,
- Remaining in the county, and
- Visting with a supervision officer.
Sometimes, judges add offense-specific conditions in drug possession cases, such as a treatment requirement.
We mentioned the beast above. Pretrial release doesn’t generate any revenue for anyone. Therefore, in most cases, review boards deny as many applications as possible. A Marietta criminal defense lawyer advocates for defendants in these situations, convincing review boards that the defendant is a good candidate for pretrial release.
Prompt jail release, as guaranteed by the Eighth Amendment, might be the most important component of an overall criminal defense. Extended pretrial detention makes the subsequent phases much more difficult.
Evaluating the Evidence
The admissibility, availability, and sufficiency of evidence could all be issues in a Cobb County drug possession case.
The Fourth Amendment controls the admissibility of physical evidence, like illegal drugs. Usually, if officers don’t have a valid warrant, a narrow search warrant requirement exception must apply. These exceptions include:
- Owner Consent: Property owners may voluntarily and affirmatively agree to allow property searches. An owner is a legal owner. Furthermore, officers cannot force owners to consent. Finally, consent is “yes” not “I guess so.”
- Plain View: If the stop was legal, police officers may seize drugs or other contraband they see in plain view. An officer’s claim that the substance was illegal (e.g. it “field tested” positive) doesn’t make it so.
- Pat Down: When officers reasonably suspect criminal activity (they have an evidence-based hunch), they may pat suspects down for weapons and keep any contraband they find during such a search.
Drug possession cases often involve chain of custody issues. Generally, the drugs start at the scene of the crime. Then they go to a police lab, to an evidence locker, to a Marietta criminal defense lawyer for further testing, back to an evidence locker, and to a courtroom.
The subsequent test is critical. Frequently, independent experts obtain very different results. Sometimes, the illegal substance was mixed with a legal substance and the possession doesn’t meet the usable quantity standard. Other times, initial test results are just dead wrong. In 2002, cocaine seized by the Dallas Police Department turned out to be pool chalk dust.
Paid informers, who each received thousands of dollars, provided the information and planted the “drugs.” This case, and others like it, cast a shadow of doubt over paid informers, specifically regarding their reliability.
Assessing the Law
Most people think possession and proximity are basically the same thing. After all, both words start with the same letter, right? However, in court, prosecutors must also establish knowledge and control. These two elements are often hard to prove in vehicle and house party possession cases.
Assume Tom was in the driver’s side rear seat when officers pulled over the car. These officers find drugs in the glove compartment. Tom was so far away from the drugs that he didn’t control them. Or, if Tom was at a house party, he could literally sit on a stash of drugs and not know it was under the cushion.
Prosecutors must establish every element of a drug possession offense, or other criminal offense, beyond any reasonable doubt. This high standard of proof basically means the defendant always gets the benefit of the doubt.
Resolving the Case
Plea bargains resolve almost all criminal cases. These resolutions usually feature a reduced sentence and/or reduced charges. Generally, a bird in the hand is worth two in the bush. Taking a sure thing is usually better than hoping for a better outcome at trial. Additionally, trials are much more expensive than plea bargains and the process is much longer.
Almost all drug possession defendants receive probation. The conditions of probation often resemble pretrial release conditions. Usually, Cobb County judges impose long periods of probation that include harsh requirements. So, motions to modify these requirements are quite common. More on that below.
A drug treatment requirement, a common condition of probation, is often a fly in the ointment. Frequently, if defendants tell drug counselors they don’t have drug problems, the counselors tell judges these defendants are in denial. A Marietta criminal defense lawyer ensures that defendants receive the treatment they need, not the treatment a counselor thinks they need.
Prosecutors usually offer deferred disposition probation in drug possession cases. If the defendant successfully completes probation, no criminal conviction goes on the defendant’s permanent record. So, from this perspective, a plea bargain is just as good as a complete dismissal of charges.
Post-Trial Matters
The aforementioned modification motions and probation revocation matters are very common in felony drug possession cases.
Legally, the judge can modify the terms of probation at any time. This power includes the authority to terminate probation. Usually, if the defendant has completed at least a third of the sentence without issue and the defendant has completed all drug treatment and other requirements, the judge will cut the defendant loose.
We mentioned the burden of proof at trial above. But in probation revocation matters, the burden of proof is only a preponderance of the evidence (more likely than not). Common revocation issues include picking up a new case, failure to report to a supervision officer, and possessing a prohibited substance.
Prisons are so overcrowded and so expensive to operate that most judges only revoke probation and send defendants down the river in extreme circumstances.
A drug possession arrest is just the beginning of a very long process. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
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