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:

Plain View

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.

Exigent Circumstances

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.

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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