by Justin Ober | May 28, 2019 | Criminal Defense
The War on Drugs has changed a lot since that fateful December 1970 day that Elvis Presley met President Richard Nixon in the White House, and we are not just talking about fashion. The King of Rock and Roll, clad in a signature velvet jumpsuit, offered to become an undercover narcotics marshal. “I’m on your side,” he assured Nixon in a letter. As for his credentials, Elvis said he was familiar with the drug culture and “Communist brainwashing techniques.”
Neither Nixon nor Elvis nor anyone else probably thought that, almost fifty years later, the government would still be fighting the same fight. And, since the number of arrests is the only measure of victory in the War on Drugs, Rochester police are very aggressive in this area. Ironically, law enforcement over-aggression may be a good thing. Such officers often take shortcuts, creating opportunities for a Rochester drug possession lawyer.
Drug Possession Laws in New York
Alcohol, tobacco, and other mood-altering drugs are generally legal, provided the person is old enough to possess them. Mind-altering drugs, however, are generally illegal, even if they have some medicinal uses. These substances break down into the following categories:
Schedule I Drugs
Ecstasy, heroin, cocaine, LSD, and other recreational street drugs have no medicinal use, or at least basically no medicinal use. Furthermore, they are highly addictive and highly dangerous if abused.
Schedule II Drugs
Substances like opioid prescription painkillers (Oxycontin, Percocet, and so on), along with Adderall and Ritalin, are Schedule II drugs. They have substantial medicinal qualities, yet they are also highly addictive and highly dangerous if abused. So, these drugs are only available by prescription. Several years ago, unintentional poisonings, mostly drug overdoses, overtook motor vehicle crashes and became the leading cause of injury-related death in the United States.
Marijuana is in a class by itself. Under federal law, marijuana is a Schedule I drug, despite its considerable medicinal properties and low danger. No one has ever died from a marijuana overdose. So, possession under 25 grams (which is about 75 joints or 25 dime bags) is only a civil penalty. Pretty much any other drug possession, even if it’s only one or two Schedule II pills, is usually a felony.
What Happens When Someone Gets Arrested for Drug Possession in Monroe County?
All Monroe County criminal drug possession cases typically go to a designated drug court. A Rochester drug possession lawyer usually has more defense options in this venue. Your lawyer can either use these defenses at trial or use them as leverage to obtain pretrial diversion or another favorable plea bargain.
Rochester Drug Possession Lawyers and Possible Defenses
Procedural defenses are usually available in drug possession cases. The Monroe County judge often throws the case out of court if there was a procedural error. It’s impossible for prosecutors to go back in time and correct police officer mistakes.
Sometimes, there are issues with the stop. Officers must have reasonable suspicion to pull over motorists or stop people on the street. In some recent cases, most notably 2016’s Utah v. Strieff, the Supreme Court watered down this rule. Nevertheless, a police officer must have more than a hunch or a belief that the person “doesn’t look right.”
Furtive movements are a good example. Many people understandably act nervous when they see police cars in their rearview mirrors, even if they have done nothing wrong. For that reason, nervous glances and sudden movements do not constitute reasonable suspicion.
Additionally, drug possession offenses are often dragnet offenses. For example, when officers pull over a vehicle and find drugs, they often arrest everyone in the vehicle. But under New York law, possession is more than proximity. In court, prosecutors must also establish:
Knowledge of Drugs
The defendant must know that drugs were under the seat or wherever the officer found them. The defendant need not know everything, like the type and quantity of drugs. But simply knowing that “something illegal” is under the seat is probably insufficient.
Control of Drugs
A defendant could be sitting on drugs and not possessing them, even if the defendant knew there were drugs in the container. In a vehicle, it’s almost impossible for people in the front seat to possess drugs underneath the back seat, especially if there are people in the back. By the same token, people in the back seat cannot possess drugs in the glove compartment, especially if the glove compartment was locked.
Automobile cases like these often raise search and seizure issues as well. Police officers hardly ever have search warrants in drug possession cases. So, unless a search warrant exception is applied, a Rochester drug possession lawyer can probably get the evidence excluded. Common exceptions include:
When officers pull over a car and approach the driver’s side window, they may seize any contraband they see in plain view. That’s usually why they shine their flashlights into a dark car. Partial plain view cases, such as a baggie sticking out from under the seat, are in a grey area.
Owners may verbally consent officers to search their dwellings, vehicles, or other property. Anyone with apparent authority, such as a roommate who is not on the lease, may give consent as well. But a vehicle passenger is almost never the owner so these people cannot give consent.
This exception does not come up in many automobile cases but is common in apartment or dwelling searches and seizures. If officers believe someone is in danger, perhaps due to a reported gas leak or disturbance, they may enter the premises without a warrant and make sure everyone is okay.
If these or other defenses apply, pretrial diversion may be an option, even if the defendant is charged with a felony and even if the defendant has a criminal record. Program requirements vary by court and jurisdiction. But generally, prosecutors dismiss the charges if the defendant pays a small fee and jumps through some legal hoops, such as performing community service or completing a drug education class.
Rely on an Assertive Rochester Drug Possession Attorney
An aggressive defense is usually the key to a successful outcome. Contact the Law Office of Frank Ciardi for a free consultation with an experienced drug possession lawyer in Rochester. Convenient payment plans are available.
by Justin Ober | May 15, 2019 | Criminal Defense
If you need surgery, you can probably find an instructional video on YouTube and do it yourself. However, performing surgery on yourself is typically a very bad idea. Similarly, if you face criminal charges in Monroe County and are out on bond, you can face them alone, but that’s usually a bad idea. If you Google a term like “Rochester NY criminal defense attorney,” you will see thousands of results. It’s very hard to evaluate them based simply on the website’s look. So, as you begin your research, here are some things to look for, both on the attorney’s website and during your initial consultation.
Overall legal experience is important since there literally is no substitute for experience. Law school teaches people how to think like attorneys, but only practical experience teaches people to fight like attorneys.
But overall legal experience is not enough. Let’s return to the medical example. A general practice doctor could probably help you if you have chest pains. But, in that situation, most people would prefer to see a cardiologist.
Legal experience is the same. If you were charged with a crime, you probably need a Rochester, NY criminal defense attorney, and not a lawyer who drafts wills.
Most people have probably heard of Robert F. Kennedy, the brother of John Kennedy. When RFK was assassinated in 1968, Sirhan Sirhan was charged with the crime, and the late Grant Cooper defended him. Cooper was an accomplished attorney but not a criminal defense litigator. Many people think Cooper was not as aggressive as he should have been, which may be one reason why Sirhan Sirhan is still in prison today.
Criminal law is not like other areas of law. It requires passion and dedication to the principles of criminal defense. Without that passion, your attorney will not be very effective. So, it’s important that your lawyer is dedicated to criminal defense. This area of practice cannot be a sideshow.
Lack of dedication usually also means a lack of experience. If a lawyer only handles a few criminal cases here and there, the attorney is probably unfamiliar with all the substantive and procedural laws.
At the same time, there is strength in diversity. Therefore, if an attorney practices other areas of law other than criminal defense, that’s usually a good thing. Many criminal defense attorneys practice in other areas of litigation, such as family law and personal injury. While not identical to criminal defense, these areas are similar.
As a rule of thumb, an attorney should practice at least 50 percent criminal law. If that’s not the case, it may be a good idea to keep looking.
Your lawyer needs to be close to your home or office. Driving across town just to see the lawyer may work for a little while, but that commute will quickly get old. If your attorney has multiple office locations or is willing to visit you offsite, that’s even better.
A lawyer should also be accessible by phone, instant message, or some other secure communication channel. If you have questions, your attorney should be able to provide answers.
You might turn around and go elsewhere if you visit a new restaurant and see an empty parking lot. The opposite is also true. If there is an hour wait for a table, you might try the restaurant down the block.
Similarly, your lawyer should be busy. A lack of clients probably means that the attorney is inexperienced or not dedicated to the craft. At the same time, your lawyer should not be overly busy. If you wait more than a few minutes, the lawyer may not have enough time to devote to your case. Or, the attorney may pawn off most of the work onto a paralegal or associate.
Contact an Aggressive Rochester NY Criminal Defense Attorney
Choosing the right lawyer may be one of the most important decisions you’ve ever made. For a free consultation with an experienced Rochester NY criminal defense attorney, contact the Law Office of Frank Ciardi. Home and jail visits are available.
by Justin Ober | May 1, 2019 | Criminal Defense
If you face criminal charges in Monroe County, you need an experienced Rochester defense attorney. Self-representation is sometimes an option in these cases. But in most cases, self-representation in criminal court is a very bad idea. Just like they should not perform surgery on themselves, laypeople simply lack the education and experience to deal with complex criminal cases.
The Sixth Amendment guarantees the right to counsel in criminal cases to avoid such outcomes. In most cases, Monroe County defendants can hire their own Rochester defense attorney or entrust their defense to a public defender. In a few cases, especially if the defendant is out on bond, the public defender option may be unavailable.
Most people cannot go wrong with either choice. But, there are some important pros and cons to consider.
Monroe County Public Defenders
Low cost is probably the biggest advantage of a public defender. This representation is usually not free, however. If the defendant receives probation, the judge will typically add legal fees to the court costs. However, the county heavily subsidizes this fee. It’s usually a flat fee as opposed to an hourly fee. Flat fees will save clients money.
Most Monroe County public defenders are dedicated to criminal law. Since public defenders practice criminal law full-time, they have experience. They know all the procedural rules, even the ones that are unwritten. Dedicated criminal lawyers attend seminars and presentations to keep their skills sharp.
There are also some significant drawbacks to a public defender. First and foremost, clients have no choice in this area. The public defender’s office assigns an available attorney, and that’s that. This lawyer could be a highly experienced litigator. This Rochester defense lawyer could also be a young attorney who is fresh out of school. Legally, the public defender is presumed to be competent. Since the client has no choice in the matter, they must deal with whatever the defender gives them.
Sometimes public defenders are inaccessible. Many defendants only see or talk to their public defender attorneys on their court dates. If you have a question, want to know the status of your case, or are unsure about the procedure, you may have nowhere to turn.
Private Rochester Defense Lawyers
Hiring your own unsubsidized lawyer is more expensive than using a public defender. However, the cost difference may not be as big as you think. As outlined below, if you think one lawyer charges too much, keep looking. You have plenty of options.
Full-time Rochester defense lawyers are somewhat rare. Many private attorneys practice other areas of law, such as family law or personal injury, in addition to criminal defense. Diversity is not necessarily a bad thing. During your initial consultation, ask the attorney how much of her practice is dedicated to criminal law. You may need to keep looking if the answer is less than 50 percent.
You have plenty of choices. If you Google “Rochester defense lawyer,” you will probably see thousands of results. During your search, look for an attorney with lots of trial experience (not just basic criminal law experience), charges a reasonable rate, and is close to your home or office.
Finally, private attorneys are usually much more accessible than public defenders. That’s good because an attorney should be more than a courtroom advocate. Your lawyer should also give you solid legal advice and inform you of your case’s progress.
Reach Out to an Aggressive Lawyer
Most people get in trouble with the law, at least partly because of a bad choice. When it comes to legal representation, choose an experienced Rochester defense attorney. At the Law Office of Frank Ciardi, we offer free consultations. We also offer home and jail visits.