April 2021 - Law Office of Frank Ciardi

Legal Options If You’re Arrested for Possession of Prescription Drugs

by The Law Office of Frank Ciardi | Apr 30, 2021 | Criminal Defense

If you were arrested for possession of prescription drugs, you should contact Frank Ciardi Law to find out your legal options.

The numbers are sobering. In 2015, the annual number of synthetic opioid overdose deaths was practically zero. By 2019, this figure skyrocketed to nearly 40,000 people. ^[1] Most prescription opioids, like Fentanyl, Oxycontin, and Vicodin, are much stronger and much more addictive than morphine or even heroin. Because of these dangers, police are very aggressive when it comes to drug possession arrests.

Like many crimes, these offenses have significant direct and collateral consequences. Typically, if you are arrested for possession of an opioid-controlled dangerous substance (CDS) without a valid prescription, it is a C felony (fifteen years in prison) or a D felony (maximum seven years). Enhanced charges apply in many situations. The collateral consequences are especially bad for current or future college students. These individuals may lose scholarships and other financial aid. They may also face expulsion or exclusion.

Even if you do not have a valid defense to CDS possession charges, a Rochester defense lawyer can usually resolve them successfully. Keep reading to learn more about these potential resolutions and defenses.

Pretrial Diversion

Monroe County, which is in the Seventh Judicial District, has one of the only drug courts in the Empire State outside New York City. ^[2] That’s excellent news for local CDS possession defendants. Drug courts are not just focused on punishment. They stress drug treatment because most people now see prescription drug abuse as a health and safety issue instead of a criminal law issue.

Between the late 1990s and early 2010s, doctors prescribed powerful opioid painkillers for root canals, sprained ankles, and other events which weren’t terribly painful. As a result, many people became addicted to them. In other words, prescription drug misuse is usually not the defendant’s fault, at least to a considerable extent.

Monroe County’s drug diversion program takes this fact into account. Program requirements vary. Generally, defendants must complete a drug evaluation and abide by its recommendations. Other program requirements usually include community service and a self-improvement class. If the defendant completes the program, prosecutors could dismiss the criminal charges.

Unfortunately, New York does not allow the expungement (erasure) of police records, except in marijuana cases. However, a Rochester defense lawyer might be able to seal the police records. That’s almost as good.

Fighting the Charges

One of the biggest benefits of pretrial diversion, other than case dismissal, is that almost everyone qualifies for it. If you have a procedural or substantive defense, you have additional options. This defense could mean a dismissal of charges, a not-guilty verdict at trial, or deferred disposition.

Procedural Defenses to Drug Possession Arrests

Prescription drug possession crimes usually involve a confession, traffic stop, or a warrant. All three areas could involve a procedural defect.

Unless police officers properly Mirandize defendants, any statements they make are inadmissible in court. Most people know that the Miranda rights include the right to remain silent, the right to an attorney, and so on. However, most people don’t know how early these rights kick in. If you do not feel free to leave and the police ask any questions, they must advise you of your rights.

Sometimes, officers find pill bottles or individual pills during traffic stops. These stops must be based on reasonable suspicion, an evidence-based hunch that the defendant has committed a specific crime. A general “s/he didn’t look right” excuse is inadequate.

Larger possession or trafficking arrests usually involve search warrants. These warrants often rely, at least in large part, on an informer’s testimony. Informers almost always receive money or leniency. Since many people will say almost anything for love or money, judges often take informer’s statements with a grain of salt.

Substantive Defenses

The substantive defense to CDS charges usually involves the legal definition of “possession” in the Empire State.

In the everyday world, possession and proximity are synonymous. I possess the cookies in my pantry, even if I am in my living room. Many police officers have this same mentality. So, if they find prescription drugs in the front seat, they arrest everyone in the car.

Legal possession is different. In addition to proximity, the state must prove knowledge and control. So, it’s possible for the defendant to literally sit on a prescription pain pill and not “possess” it legally. The state must prove possession, and every other element of the offense, beyond a reasonable doubt. That’s the highest burden of proof in New York law.

Reach Out to an Experienced Attorney if You’re Arrested for Possession

If you were arrested for possession of prescription drugs, you might not have to face the music. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.

Sources:

[1] https://www.drugabuse.gov/drug-topics/trends-statistics/overdose-death-rates

[2] http://ww2.nycourts.gov/courts/problem_solving/drugcourts/drugcourtslist.shtml#seventh_jd

Avoid DWI License Suspension in Monroe County

by The Law Office of Frank Ciardi | Apr 15, 2021 | Criminal Defense

Frequently, the collateral consequences of a criminal conviction are worse than the direct consequences. DWI (Driving While Intoxicated) and DWAI (Driving While Ability Impaired) are good examples. Since New York is an implied consent state, even if you are not convicted of one of these offenses, your drivers’ license could be suspended or revoked for a lengthy period. ^[1] It is important to learn what you can do to avoid DWI license suspension.

Briefly, DWI is driving after losing the normal use of mental or physical faculties due to substance intake or a .08 BAC level or higher. DWAI is a lesser-included offense. These charges hold up in court if the defendant was unable to operate a motor vehicle “reasonabl[y] and prudentl[y]” or had a BAC level between .05 and .07.

Sadly, many defendants are fatalistic about avoiding DWI license suspension. They feel that license suspension, especially pre-conviction suspension, is inevitable. So, they do not work with a Rochester defense lawyer in this area. These defendants miss the chance to keep their drivers’ licenses. They also lose an important legal advantage.

Suspension and Revocation

Many people believe suspension and revocation are synonymous. But when they try to get their licenses reinstated after the adverse action periods end, they find a big difference.

Suspended drivers’ licenses are temporarily invalid. Generally, drivers can reinstate suspended licenses by paying a small fee and providing proof of insurance. You must do these things to reactivate your license. Suspended drivers’ licenses do not automatically become valid when the suspension periods end.

Revoked drivers’ licenses are permanently invalid. To drive again, you must start the licensing procedure from scratch. You must provide whatever documents the DMV demands and take whatever tests the DMV requires. The aforementioned reinstatement fee and insurance requirement usually apply as well.

Generally, New York suspends licenses instead of revoking them. Occasionally, a DWI conviction could involve a revocation. A Rochester defense lawyer can usually ensure that, in all these situations, authorities suspend your drivers’ license instead of revoking it.

Avoid DWI License Suspension at The ALR Hearing

To suspend your license without a conviction, following the implied consent law, the state must prove, at an Administrative Law Hearing, that officers had probable cause to demand a chemical sample. Probable cause is a lower standard of evidence than beyond a reasonable doubt. So, it’s difficult, but not impossible, for a Rochester defense attorney to win this point in court.

Frequently, officers rely on the Field Sobriety Test results to establish probable cause. Sometimes, defendants assert their Fifth Amendment rights and refuse to perform these tests. Other times, officers inexplicably skip them. In these situations, prosecutors must rely on circumstantial evidence, such as:

Erratic driving,
Bloodshot eyes,
The odor of alcohol,
Unsteady balance, and
Slurred speech.

This evidence only proves alcohol consumption if only two or three of these bullet points are involved. It does not prove intoxication or even impairment.

Even if the Administrative Law Judge enforces the full one-year suspension, you are typically entitled to a limited drivers’ license, as outlined below. Furthermore, win or lose, a Rochester defense attorney cross-examines the arresting officer under oath. Defendants often pay hundreds or thousands of dollars for a chance to depose a police officer.

Post-Conviction Suspension

A DWAI suspension is a maximum of 90 days, and the maximum DWI suspension (or revocation) is 180 days. A Rochester defense attorney cannot challenge the suspension or its length, but an attorney can make the time much easier on you and your family.

Conditional or hardship drivers’ licenses are usually available for both pre-and post-conviction suspensions. These defendants may drive to and from work, school, the doctor’s office, and court-related activities, like probation meetings. Additionally, Monroe County gives you three hours of driving time a week to perform essential household activities.

You must complete New York’s Drinking Driver Program (DDP) to be eligible for a conditional license. Most defendants qualify for the DDP if they have not taken it within the last five years.

Contact a Dedicated Attorney

Potential DWI/DWAI drivers’ license suspension is not the end of the world. Learn how you can avoid DWI license suspension by contacting the Law Office of Frank Ciardi. Convenient payment plans are available.