Drug charges can get dismissed, but it is not easy.
However, there are a number of ways to do this.
The chances of getting your charges dropped depend on a number of factors.
We’ve put this article together to help you understand what’s involved.
What type of drug charges are you facing?
First off, it is important to know the amount (weight) of drugs that you were in possession of.
The greater the “weight” or amount of drugs found in your possession, the more serious the consequences.
If you were charged with small amounts of drugs (for personal use), your matter will be treated as a misdemeanor.
An example of a small amount would be less than 50 grams of marijuana.
The maximum penalties for misdemeanor drug charges are up to six months in jail and up to a $1,000.00 fine.
All other drug possession charges are treated as felony matters.
You will be facing either 1st, 2nd, 3rd or 4th-degree felony charges.
How Were The Drugs Seized?
Next, we need to learn exactly “how” the drugs were discovered to be in your possession.
For example, these are the kinds of questions that we need to raise:
- Was your vehicle searched during a “traffic stop”?
- What was the reason for the stop?
- Was it a legal stop?
If you were searched during a traffic stop in NJ, it’s necessary to learn how the police gained access to you search your car.
- Could the drugs be seen through the window?
- In legal terms, were the drugs in “plain view”?
- Did you have a bag of weed on your dashboard or bundled in your trunk?
- Did your car smell like weed?
- Did you give consent to search?
In other words, before the cop asked for consent to search your car, we need to know:
- What the police officer noticed that caused him/her to seek consent?
- Did the police officer observe any signs of criminal activity before asking to search?
- Or, did the officer search because of “a hunch” that there might be drugs in your car?
These are the types of legal questions that narrow the focus of our legal arguments.
The bottom line:
If you were the victim of an “illegal search”, then the drug evidence in your case can get “suppressed”.
When the evidence cannot come into trial, your drug charges will get dismissed.
What is an Illegal Search?
An illegal search violates your 4th Amendment rights.
To keep it really simple, the 4th Amendment protects your “privacy”.
You have a “reasonable” expectation in your person, paper, house, and effects.
This means that the police (government actors) cannot search these things without a warrant. For example, if the police want to search your home, they need a warrant.
If they do not have a warrant & search your home & find drugs, this would be a good example of an illegal search.
The result of an illegal search is that the evidence obtained from the unlawful search cannot be introduced in court.
In legal terms, this is known as the “exclusionary rule”.
However, it is not so always so simple.
There are many exceptions to the 4th Amendment’s “warrant requirement”.
These are called “warrantless search exceptions”.
A well-known example is the “exigent circumstances” exception.
Exigent circumstances are defined as:
“circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”
The important to remember when it comes to getting your drug charges dismissed is this:
There are a number of factors to consider when determining whether law enforcement’s search was reasonable.
If the search was “unreasonable” it still may be a legal search if it falls under an exception.
Click here for a full guide on Warrantless Search Exceptions
Motions To Suppress Are The Key to getting drug charges dismissed
I’m going to keep this real simple.
A motion to suppress (MTS) is the legal tool that lawyers use to ask to get drug charges dismissed.
When a MTS is filed, the judge (court) will decide whether the search was legal.
To do this, the court holds a hearing.
In essence, the MTS hearing is a mini-trial.
The prosecutor brings the police officer who arrested you to court & asks him to explain all the steps he took to find the “illegal drugs”.
When the prosecutor finishes his/her line of questioning, it is our attorneys’ turn to cross-examine the cop.
Your criminal defense attorney must be thoroughly prepared by the time you get to this stage in your drug case.
We research the related law and we use the law to guide us during our questioning of the police officer.
After all of the witnesses are finished testifying, both prosecutor and defense lawyer argue the case to the judge.
It is our job to show the court that the way you or your home or car was searched, was illegal.
If the judge finds that the search was indeed illegal, the cure or remedy for this Constitutional violation is to keep the drugs out of evidence.
Challenging the legality of the traffic stop
There’s a statistic that over 90 percent of all criminal arrests arise out of traffic stops.
Although I don’t trust statistics because of how they can be manipulated, it does seem like over 90% of our drug case result from a traffic stop.
If this is the case, the first thing we do is investigate to see if the traffic stop or the search violated the Constitution.
We start each drug possession case with the following questions:
- Why was our client pulled over
- Did the police officer have “reasonable & articulable” suspicion for the stop?
- Was the vehicle searched?
- Was Consent given for the search?
- Did the police have Probable Cause to search?
- Where in the vehicle were the drugs found?
If any of your Constitutional Rights were violated, we file a Motion to Suppress the Evidence.
Once the judge decides that the search was unconstitutional, then that evidence cannot be used at trial. (see above)
Did Canines Find The Drugs?
“Either you cooperate OR I have to get the canine unit out here!”
Did this happen to you?
- Were you given an ultimatum to either cooperate OR get in worse trouble
Police threaten to bring the canine unit all the time.
The irony is that many police departments don’t even have canine units.
They don’t have the funding. It’s often just a bluff.
Yet, people agree to “searches” of their car because they believe they will be punished if they exercise their right to refuse.
- Were you told that you had a right to refuse the search?
- Was your initial traffic stop complete by the time the canine’s arrived?
- How long did it take the canine unit to arrive?
These answers will determine if the evidence can be suppressed.
If the drug evidence is suppressed, your drug charges will get dismissed.
Starting to see a pattern here?
Were the Drugs Properly tested?
Whenever you are charged with a drug crime, the government has to prove that the substance you had in your possession was indeed an illegal drug.
How are drugs tested?
Every local police department sends their drug evidence to a scientific testing lab.
In NJ, all of the evidence is sent to the New Jersey State Police Laboratory.
Once it gets to the lab, it has to get tested in many ways.
A qualified scientist has to perform each test.
These scientists have to test the drugs in a certain way and with certain equipment.
They also have to keep records of every test.
Once the tests are completed, those records are provided to your criminal defense lawyer.
If the drugs are not tested properly by the right person in the right way, and within a certain amount of time, we will file another Motion to Suppress.
A few years ago, the State of New Jersey had a lot of trouble with a person who worked at the laboratory.
Instead of testing the drug evidence properly, this employee was lying about it. As you can imagine, many cases got dismissed.
In another scandal, Annie Dookhan, a Massachusettes State Laboratory chemist tampered with 15,570 drug tests. She falsified records & committed perjury when she testified at trial regarding her drug tests.
Because of Ms. Dookhan, thousands were convicted of cocaine possession.
During their investigation, detectives learned that the substance she certified to be cocaine turned out to be sodium chloride (table salt).
As a result of Ms. Dookhan’s crimes, thousands of innocent people got their drug charges dropped.
Arrested with Co-Defendants?
Who Do The Drugs Belong To?
People smoke in groups.
No surprise here.
But can 4 people all be in “Possession” of one joint?
Or, what if you gave someone a ride and they had weed in their backpack?
Here’s another possibility:
Someone you gave a ride to in high school (5 yrs ago) dropped a roach in your backseat.
You get pulled over for speeding, the cops search and find marijuana in your car.
Should you be charged with a crime that has a perfectly logical explanation?
Can the Prosecutor prove that the roach belonged to you?
If one of your co-defendants takes responsibility for the marijuana in your car, then we file another Motion to Dismiss the charges against you.
Are you starting to see the many different strategies we use to get your drug charges dismissed?
As you have read, there are many ways to get your drug charges dismissed.
Every case is different.
Sometimes it takes one way to win.
Sometimes it takes all five ways to win.
And sometimes, we can’t win no matter how many ways we try.
The important thing is to never go down without a fight.