Statements like “These drugs aren’t mine” and “I was just holding this bag for a friend” are pretty much the worst things a suspect can say during a drug possession investigation. There’s a difference between ownership and possession. [1] Therefore, these excuses usually fall on deaf ears. Additionally, the officer’s next question is usually, “what’s your friend’s name?” That’s not a question anyone wants to answer. Finally, depending on exactly what was said, the statement might be an admission of possession. More on that below. If you’re arrested for possession, regardless of who actually owns the drugs, it’s crucial for you to retain a top criminal defense attorney as soon as possible.

Public Defender vs. Criminal Defense Attorney if You’re Arrested for Possession

If you were in possession of someone else’s drugs, you definitely need a qualified defense attorney in Rochester. In these cases, a public defender or court-appointed lawyer is usually a bad idea. The image of the overworked public interest lawyer is a little inaccurate, but many of these lawyers do have very heavy caseloads. Non-ownership drug possession cases require lots of attention that a public interest lawyer may be unable to give. A private attorney with experience and dedication is a much better option.

Investigatory Statements

The I-word is Legalese for any statements the defendant made between the time an officer says “pull over,” and the moment an officer handcuffs the defendant.

Generally, these statements are only admissible if an officer Mirandizes the defendant. The law requires officers to administer the Miranda rights before they begin custodial interrogation. “Custody” doesn’t mean placement in a steel cage or the back seat of a police car. Instead, “custody” means whenever a reasonable defendant doesn’t feel free to leave. When officers question them, most people don’t feel free to leave.

Almost all of us have been pulled over before, and officers never give the “you have the right to remain silent” spiel. Because of this rule, a defense attorney in Rochester may be able to exclude damaging investigatory statements. This issue is complex since the Supreme Court recently watered down the Miranda rule. [2]

Drug Possession Elements and Defense Attorneys in Rochester

As mentioned, drug ownership is technically irrelevant in a drug possession case. However, it could affect the elements of a possession case. Prosecutors must establish three elements beyond a reasonable doubt in these cases:

  • Proximity,
  • Control, and
  • Knowledge

Ownership usually doesn’t affect proximity. Defendants either have drugs in their possession, or they don’t. Usually, anything in the room, even if it is across the room, is legally close to a person. For this same reason, ownership usually doesn’t affect control.

Knowledge is different. Let’s take a closer look at the two aforementioned excuses: “These drugs aren’t mine” and “I was just holding this bag for a friend.” The first statement is an admission of knowledge. The second statement is not an admission of knowledge. So, a word or two could make a big difference.

As for the defendant’s actual words, body camera audio transcripts are proof beyond a reasonable doubt. Anything else, such as the officer’s recollection of the statement, is he said/she said. Usually, that’s not proof beyond a reasonable doubt.

Possible Resolutions if You’re Arrested for Possession

Non-owner possession cases could involve procedural and/or substantive defenses. Either one could encourage prosecutors to offer a favorable deal. The stronger the defense, the more likely the state is to back down. Prosecutors usually feel like they haven’t done their jobs if defendants avoid all punishment. So, rather than risk a not-guilty verdict at trial or an unfavorable result at a pretrial hearing, they offer favorable deals.

These deals usually include pretrial diversion or deferred disposition in drug possession cases. Both have the same result.

Prosecutors usually offer pretrial diversion for evidence or political reasons. We discussed the evidence problems in these cases above. Politically, many people view drug possession as a health and safety issue and not a criminal law issue. Common pretrial diversion program requirements in drug possession cases include community service and a substance abuse evaluation. Once a defendant successfully completes the program, prosecutors dismiss the charges.

Pretrial diversion is a judicial remedy. The judge doesn’t find the defendant guilty when the defendant pleads guilty to non-ownership drug possession. Instead, the judge defers that part of the proceeding until the defendant completes probation. The judge dismisses the case if the defendant successfully completed this court supervision program.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced defense attorney in Rochester. Convenient payment plans are available.





The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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