In 1989, almost a third of Americans said drug abuse was the country’s most serious problem. By 2004, that figure had plummeted to 1 percent. That amazing decrease gives some attorneys a false sense of security. They believe that jurors won’t convict drug crime defendants. That belief isn’t entirely misplaced. Most people now see drug abuse as a health and safety issue, not a criminal law issue. Enhanced drug trafficking is different. In many cases, jurors quite simply believe these defendants are evil.
The changed perception is not a get-out-of-jail-free card. However, it does give a Marietta criminal defense attorney a better opportunity to successfully resolve these charges. That’s especially true if an attorney convinces prosecutors to drop a drug trafficking enhancement. If that happens, at least a few jurors may view the defendant sympathetically. One juror with a different perception of the facts, and therefore a reasonable doubt about the evidence, is all it takes to obtain a not-guilty verdict.
1,000-Foot Rule
Enhanced penalties apply if a drug trafficking transaction occurred within 1,000 feet of a church, school, park, public housing project, community center, or other prohibited place.
Before we go further, we should briefly define drug trafficking. Trafficking is not synonymous with selling. If Bill gives his leftover Oxycontin to Steve, Bill could be guilty of drug trafficking.
The 1,000-foot drug trafficking rule is similar to the 10,000-step physical fitness rule. Most doctors agree that the 10,000-step rule is completely arbitrary. Furthermore, this standard is almost impossible to meet. 10,000 steps is about five miles. That’s an awful lot of walking, especially day after day after day.
1,000 feet is about three football fields. In dense, metro areas, like Marietta and Atlanta, almost every street corner in town is within three football fields of a park, school, or other prohibited place. That’s especially true in predominantly nonwhite areas of town.
On a related note, in these dense urban areas, there’s a difference between a straight line on a map and the actual walking or driving distance.
Furthermore, prohibited places themselves have some issues. A school is a good example. Obviously, lawmakers don’t want drug dealers peddling their wares near young children. So, during school hours, the prohibition makes sense. But much of the year, a public school is basically an empty building.
Additionally, not all schools look like schools. If an education annex is in a mini-mall, where does the 1,000-foot line start? Does it start at the door to the annex or the edge of the parking lot?
Involvement of a Minor
Sales or give-away transactions to minors usually trigger enhancements, as does the use of a minor as a runner or other drug trafficking accessory.
In many cases, a Marietta criminal defense attorney can’t do much. This is one of these situations. These enhancements are very difficult to challenge. But an attorney could challenge the underlying crime in these cases.
Police officers very rarely catch drug traffickers red handed. Instead, in most cases, someone rolls over on someone else during police officer questioning over an unrelated matter. When their own freedom is at stake, many people will say almost anything to get out of that situation. The information they provide could be accurate yet unreliable. A broken clock is accurate twice a day.
Possession of a Firearm
This enhancement could be an issue if three or four people conduct a drug trafficking transaction and one of them has a gun.
If an individual was carrying a gun, a firearm enhancement is like a minor involvement enhancement. Defendants must usually take their medicine, unless ’here’s a defense to the underlying crime.
Co-traffickers in a group are a different story. In these situations, to prove the firearms enhancement, the state must prove the defendant knew about the weapon and controlled that weapon. The knowledge element is difficult to prove. The control element is nearly impossible to prove.
The same principle applies in vehicle possession cases. If Officer Taylor finds drugs in a car, she’ll probably arrest everyone n the car for drug possession. These charges often don’t hold up in court, because of the knowledge and control requirements. Officer Taylor may assume that a person in the back seat knew about, and controlled, drugs in the glove compartment. Prosecutors must prove these facts beyond a reasonable doubt.
Gang Involvement
Georgia’s street gang law resembles the RICO (racketeer influenced and corrupt organizations) law, the same law that Fulton County prosecutors are using against former president Donald Trump. Gang members who weren’t present at the transaction site could be charged with drug trafficking, even if they didn’t know about the sale.
In court, prosecutors must establish organization and benefit. The gang must have at least an informal hierarchy. Guilt by association isn’t a thing in the United States. Furthermore, if the drug traffickers pocketed the money, the gang didn’t benefit from that transaction, at least arguably. Once again, the state must prove organization and benefit beyond any reasonable doubt. An officer’s speculation isn’t proof.
Type of Substance
We close with perhaps the most obvious drug trafficking enhancement. Penalties for Schedule I drugs, like cocaine, are higher than penalties for Schedule II dugs, like marijuana.
But not all cocaine is cocaine. Frequently, drug traffickers cut substances, like bartenders water down drinks. At some point, watered-down whiskey isn’t whiskey, and cocaine mixed with something else isn’t cocaine.
Field tests are sometimes inaccurate as well. In 2019, a South Carolina sheriff’s deputy arrested Georgia Southern quarterback Shai Werts on possession of cocaine charges following a traffic stop. A subsequent chemical test revealed the “cocaine” was bird poop.
Drug crime enhancements often don’t hold up in court. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
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