Drug Crimes Defense

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Drug Crimes Attorney

Drug crimes handled by our firm include: simple possession of drugs; possession with intent to sell; selling, transporting or giving away; manufacturing; being under the influence of drugs; and possession of drug paraphernalia. Many drug cases can be attacked due to a questionable search or the use of a confidential informant.

Illegal Search

Even if you told the officer it’s “OK” to search you, your car, or your house, the search might still be illegal and if your drug crimes lawyer challenges it you might get the case dismissed. Also,  “pat down” searches often lead to a drug arrest. It is illegal for the police to “pat you down” without specific facts indicating that you are “armed and dangerous.”
Despite this illegality, police continue to routinely conduct “pat down” searches whenever they choose because they know that the worst thing that will happen to them is that the case will get dismissed. Unfortunately, in far too many cases, the search isn’t even challenged by an Orange County criminal defense attorney.

Confidential Informants

Another common police tactic is to use a “confidential informant” (usually someone they have arrested for possession of a small amount), to get information about someone involved with drugs. Police will threaten this “informant” with jail time unless they inform on the person who provided them with drugs.  Police then use this information to get a search warrant which leads to an arrest.
The “confidential informant” is usually someone the arrestee knows well. The informant will usually provide information only if their identity remains anonymous. You need an Orange County criminal defense attorney to file a motion to compel the District Attorney (“DA”) to disclose the identity of the “confidential informant” which can sometimes force the DA to make a lenient offer or dismiss the case outright.

Simple Possession

Possession of a controlled substance is criminalized by Health & Safety Code Sections 11350 and 11377. Some controlled substances can never be legally possessed (i.e. cocaine) while others can be legally possessed with a doctor’s prescription. Possession is by far the most prosecuted drug crime in Orange County.

In order to be convicted of drug possession the District Attorney (DA) must prove all of the following:
  1. That you excercised control, or the right to control, the drug;
  2. That you had knowledge of the drug’s presence;
  3. That you knew the substance was a controlled substance; and
  4. That there was a usable amount of the drug.
A skilled drug possession attorney can expose the prosecution’s inability to prove all of these elements.
In most cases, simple possession is now a misdemeanor, punishable by up to a year in the Orange County jail. The diversion programs PC 1000 and Prop. 36 may be available in a simple possession case and will result in a dismissal if the programs are successfully completed.

PC 1000

To qualify for this diversion program, you must have no prior drug offenses on your record, the crime you are charged with must not involve any violence or threat of violence, you must have no history of revoked probation or parole without thereafter successfully completing it, you must not have been given PC 1000 before, and you must not have any felony convictions within the past five years.
If you qualify for PC 1000, you will be given drug treatment. If you successfully complete the drug treatment, the case will be dismissed and the arrest will be deemed never to have occurred. If you fail to complete the program, you will be returned to court, a guilty plea will be entered into the records, and you will be sentenced as the judge sees fit. To see if you qualify for PC 1000 consult with an Orange County drug possession lawyer.

Prop 36

If you are charged with a nonviolent drug offense but don’t qualify for PC 1000, then your Orange County drug defense attorney may help you get another form of diversion—Prop 36. (Penal Code Secton 1210). In order to qualify for Prop 36, you must only be charged with nonviolent drug-related offenses and the drugs in question must be for personal use. So, for example, if you are charged with possession of drugs and a DUI, you could not qualify for this program because a DUI is not considered a drug-related offense.
 
If you qualify for Prop 36, you will receive 12 months of drug treatment. If you successfully complete treatment, your case will be dismissed. However, you will still have to register as a drug offender for the next seven years. If you feel diversion is right for you, call Orange County drug lawyer EJ Stopyro at (949) 559-5500.

Possession with intent to sell

Possession for sale is criminalized by Health & Safety Code Sections 11351, 11351.5, 11378, 11378.5. The elements for possession with intent to sell are identical to the elements for possession (see above) with two additional elements:
  1. There must be a sufficient amount of the drug to sell; and
  2. The DA must prove that you had a specific intent to sell the drug.
Typical evidence of intent to sell includes a large amount of the drug, that the drug is packaged in small amounts ready to sell, that the police also found a large amount of cash in your possession, pay/owe sheets showing amounts of money paid or due, scales or baggies, and messages on cell phones. If you are facing charges for possession with intent to sell then you are not eligible for either PC 1000 or Prop 36. If you are facing charges for possession with intent to sell it is important that you talk to an Orange County drug sales lawyer.

Selling, Transporting or Giving Away Drugs

The offenses of selling, transporting or giving drugs away are governed by Health & Safety Code Sections 11352 and 11379. These offenses are punishable by imprisonment for three, four or five years. If the drugs were transported from one county to a noncontiguous county the punishment can be up to nine years.
The Calfornia Court of Appeal has held that “Transportation of a controlled substance is establised by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character… Neither this nor any other court has ever required that the length of travel exceed minimal movement.” This means that what would otherwise be a simple possession charge can be a transporting charge if you simply move the drugs, either in your car or on our person. If you are facing charges for selling, transporting or giving away drugs you need to consult with an experience Orange County drug crimes lawyer.

Manufacturing Drugs

Manufacturing drugs by chemical extraction is criminalized by Haelth & Safety Code Section 11379.6. This statute is aimed at PCP and methamphetamine labs. Punishment is three, five or seven years of imprisonment and a $50,000.00 fine. Also, anyone who participates or offers to participate in manufacturing these drugs is punished by three, four or five years of imprisonment.
In order to be convicted, the police do not need to find the finished product—PCP or methamphetamine. It is enough that the manufacturing process be under way. Even the possession of certain chemicals is illegal. For example possession of hydriotic acid is a crime. And although many chemicals can be possessed for reasons that have nothing to do with drug manufacturing, the Legislature has enacted statutes that establish a legal presumption that if a person possesses certain chemicals, they intend to manufacture illegal drugs. If you are charged with manufacturing drugs you need to consult with an Orange County drug attorney.

Under the Influence of Drugs

Health & Safety Code Section 11550 makes it a crime to simply be under the influence of most illegal drugs. (excluding marijuana) It is not necessary that you be impaired to any appreciable degree, it is enough if you are under the influence in any detectable manner. The typical arrest is for being under the influence of cocaine, heroin, methamphetamine and PCP.
This crime is a misdemeanor punishable by up to one year in the Orange County jail. There is a mandatory minimum punishment of 90 days in jail. The only way around the 90 day minimum is if you qualify for diversion–PC 1000 or Prop 36.

Possession of Drug Paraphernalia

Health and Safety Code Section 11364 deals with the possession of drug paraphernalia. This section makes it illegal to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking a specified controlled substance. It is not illegal to possess an instrument for smoking marijuana.
Possession of drug paraphernalia is a misdemeanor punishable by up to six months in jail and/or a $1,000.00 fine. However, this offense is divertible—you can get PC 1000 or Prop 36 if you qualify. If you are charged with possessing drug paraphernalia you should consult with an Orange County drug paraphernalia attorney.

Court Proceedings

When you were released from custody you were either given a citation or you signed a promise to
appear. This will have the date and the court location where you must
appear. At your first court appearance, called an arraignment, the judge
tells you and your lawyer exactly what you are being charged with and your
criminal defense lawyer receives a copy of the police report and complaint. If you are only charged with a misdemeanor your lawyer can appear in your place.

First Court Appearance (Arraignment)

At this early stage a plea of “not guilty” is almost always entered and another court date, called a “pretrial conference” is set for several weeks later. This gives your drug crimes attorney valuable time to review the police report, witness reports, forensics reports, and other documents in your case. Your drug crimes lawyer will interview witnesses and conduct legal research on any of the various legal issues that may arise in your case. Hiring a drug crime attorney with the intelligence and skill to spot these legal issues can make all the difference in your case.

Pretrial Conferences

A typical case requires three or four pretrial conferences for your drug attorney to review all the evidence the DA intends to use against you, to research legal precedent supporting suppression issues, and to file and litigate any suppression motion in your case. Your case may also require your  attorney to visit alleged crime scenes and consult with experts.
If there are no suppression issues, your attorney must then determine if the DA can convict you with the evidence they have. Can the DA prove the drugs were yours? That you had actual or constructive possession of them? Can the DA prove you had knowledge that the substance was an illegal drug? Can the DA prove that you were actually selling or intended to sell drugs? (This can be especially tough for the DA if their crimnal informant wont testify.) If you are facing felony charges you have the right to a “preliminary hearing” at which the DA must produce enough evidence against you to justify prosecuting you.
If the evidence against you appears strong, your drug defense attorney must then determine if you have a possible defense, such as entrapment, mistake of fact, mistake of law or necessity. If you don’t have a defense, it falls on your drug attorney to negotiate the best possible deal for you. A skilled drug defense attorney must be prepared to highlight the strengths of your case so that the DA would rather avoid a trial rather than risk wasting time and money on a potential losing case . Your drug crime attorney must also present you to the judge and DA in the most favorable light. Often, the only window into your personal life is through your attorney. If your drug defense attonrey is effective at doing these things, you’re likely to get the best possible offer from the DA or the Judge.
Finally, if jail time is unavoidable, a capable drug defense lawyer will thoroughally explore sentencing options to keep you out of jail. These alternatives include home confinement where you serve your jail sentence at home with an electronic bracelet, leaving only for work or for necessities of life. Other options include community service or doing labor for Caltrans. If jail is unavoidable a judge can allow you to serve your time in a “private” jail, (“pay and stay”), where you are released for up to 12 hours a day to go to work. Another option is to serve your jail time on the weekends–checking in Friday night and being released Sunday night. A competent drug defense attorney will zealously push to get you an alternative sentencing option.

Trial

If you do have a defense or if the DA’s evidence is not very strong, and if you don’t want to accept whatever the DA is offering, your case will be set for trial. Very few cases make it to trial; maybe one in fifteen. At trial, the DA presents whatever admissible evidence they have against you to twelve regular people. In order to convict you the Prosecutor must prove every element of every charge against you by proof beyond a reasonable doubt, the highest evidentiary burden in law. Your criminal defense attorney must be able to persuasively point out the weaknesses of the prosecutor’s case and  deftly present your defense, if you have one.
If even a single juror finds that the prosecutor hasn’t met this heavy burden, then you can’t be convicted. (Hung jury) If all twelve jurors agree that the prosecutor hasn’t met its burden of proof, then a verdict of not guilty must be rendered.

What you must do now

If you are facing charges for any drug offense you must protect yourself. It is very important that you at least consult with an Orange County criminal defense attorney who handles drug crime cases. Call the Law Offices of EJ Stopyro for a free telephonic consultation.  You can speak to an experienced drug defense attorney who will evaluate your case– its strengths, weaknesses, whether there is a suppression issue and any possible defenses. The advice is completely free and confidential. At the Law Offices of EJ Stopyro we enjoy fighting against the most pernicious form of government oppression—laws dictating how adults conduct their personal lives. The “war on drugs” has left us all bleeding from where our Constitutionally guaranteed “freedom” used to be.