An Overview of The Defense Of Colorado Drug Crime Charges – A Prioritizing Of Goals
When I am retained by my new clients – I draw a graph on a piece of scrap paper. I call this my “lines in the sand” chart. The purpose of the lines in the sand chart is to identify the redlines of what si acceptable and not acceptable before the case must be taken to trial.
Line in the Sand 1 – No Prison Time
Line in the Sand 2 – No Jail Time
Line in the Sand 3 – No Felony Conviction
Line in the Sand 4 – No Misdemeanor Conviction
Line in the Sand 5 – Any Plea Bargain That Can Result In Sealing – Expunging The Drug Case From the Record.
Your Lines In The Sand – The Strength Of The State’s Case – Nature of The Crimes Charged and The Criminal History
With an understanding of your lines in the sand – the next task is a dispassionate, objective and n analytical look at the case with these questions in mind.
1. What are the weaknesses in the State’s case?
2. What is the type of drug involved; Is the drug cocaine, heroin, meth, “pharms,” large amounts of marijuana?
*Colorado classifies drugs into “schedules”. The schedule of a drug / controlled substance directly correlate to the perceived dangerousness or addictiveness of the drug. While a Schedule I drug is considered highly dangerous and addictive and brings with the case much harsher penalties, a Schedule V drug is considered significantly less dangerous and results in significantly lower pusnishments.
3. How much of the drug was involved? What was the net “weight” of the drug?
4. Was this a Simple Possession case – or was this Possession With Intent (to distribute)?
5. What is the defendant’s prior criminal history?
Colorado State’s District Attorneys analyze cases mostly from the same perspective. As a former career DA the above questions are the most frequent questions I would ask myself in deciding how to approach a plea deal.
Drug crimes – in many cases – are “Sting Operations.” These cases are actually “designed” to be proven in court and may – from the defense side – seem somewhat hopeless at first. However, both DA’s and defense lawyers know there are often hidden flaws in the evidence – that is, certain weaknesses that can be used to defend the case in court or to negotiate an acceptable plea agreement with the lines of sand above in mind.
One of the key issues in any drug prosecution is the answer to the question – was the possession of the drug personal use, or was it possessed with the intention of selling it to others?
An Overview of The Defense Of Colorado Drug Crime Charges – Possible Defenses In Colorado Drug Crimes
The Importance of the Early And Often Aggressive Investigation
An aggressive analysis in the defense of a Colorado drug crimes case begins first with a careful study of the constitutional issues. These isues often prove to be the most significant defense approach.
The Challenge of the Stop or Search By Law Enforcement
A motion to suppress is filed in any case where the police acted illegally. They might have stopped your car without reasonable suspicion to do so (a basis that requires some evidence that you had broken a law). They could have ordered you out of the car without a proper basis, searched you or your car without probable cause and they may have seized evidence they had no right to take.
Any or all of these grounds may be present and the resulting suppression of evidence may lead to a complete dismissal of the case or a favorable plea bargain.
Were You Really In “Possession” Of the Drugs?
This is a situation that often occurs in Colorado. Your car is stopped and there are several people inside. You are arrested because a search of the car has the drugs “near you” but not “on you.” The others in the car point the finger at you.. You are therefore arrested.
The drugs may have been found in an unidentified backpack, the glove box, under the seat – and the DA and police are trying to make the case that the drugs were yours using a doctrine of law known as “constructive possession.”
Actual versus Constructive Possession Of Controlled Substances
Actual possession is the easy case… the drugs are found on you person.. a pocket, a purse, hidden in socks or shoes etc.
Constructive possession is the much harder case. When a controlled substance is the drug is found in an area over which you had “dominion and control.. That is the ability and intent to “control” the controlled substances in question, then the DA will try to prove that you had illegal possession of the narcotics sufficient to convict you of the crimes charged.
Legal “inferences” of “dominion and control” over the drugs is sufficient for a conviction if “constructive possession” can be shown. This includes situations where the drugs are found at a different location such your home (drugs are found in your bedroom) and you had exclusive dominion and control over the location.
What About “Joint” Possession and Control?
Joint possession occurs when there are two or more people who have “actual or constructive possession” over the controlled substances. These are the weakest of cases from my perspective. Here the police stop a vehicle carrying multiple passengers and they find drugs in the middle console of the car. Not knowing whose drugs they are – they charge the driver and the passengers with “constructive possession” of the drugs.
Being near drugs, such as a backpack or glove compartment that contains controlled substances – without more, is not “possession” and this theory of prosecution should be challenged in court. Just because you may have been “near” drugs is not conclusive evidence that you were in “possession” of them or that you even knew about them.
Attacking The Search Warrant As Invalid
Search Warrants must be issued based upon “probable cause.” Drug crimes involving the search of your home or business can be attacked if there were defects in the issuance of the search warrant. This means the police require a valid reason to conduct the search and the warrant must specifically describe the place to be searched, the person believed involved and the items to be seized. Furthermore – a search warrant can be attacked if the affidavit contains incorrect or false information, information from unknown individuals or unreliable informants, or the information provided is stale, ambiguous, or otherwise questionable.
Chain of Custody Or Other Errors In Laboratory Testing Procedures
Before evidence can be admitted at trial, the DA must lay a foundation that establishes the identity of everyone who touched, processed or tested the drug evidence. This is called the “chain of custody.” If one link in this chain is broken or missing, the evidence should be suppressed or otherwise excluded. In addition, the testing procedures utilized by state or state contracted labs can also be challenged if they do not comply with established reliable processing standards.
Every aspect of every Colorado drug criminal case must be examined for flaws. If there are unreliable witnesses or there was improper evidence processing or collection, the evaluation and investigation of every detail of your case may contribute, if not directly lead to a dismissal of the charges or a least a favorable result such as a plea bargain to much lower charges.
The Defense of Entrapment In Colorado
While the defense of entrapment is difficult to establish, where there has been government originated threats, fraud in the inducement or other types of “undue influence” that compel a defendant to commit a crime, the entrapment defense may apply as a complete or “affirmative defense” to the crimes charged.
This is a brief article, of course and not meant to be comprehensive in scope. There may be many other legal and technical defenses to your drug crime accusations that are best discussed in your free consultation.
How Does A Plea Bargain Work? Can This Case Be Settled?
Plea Bargaining, (assuming the first line of defense is not successful), occurs in about 95% of all criminal cases. That is a reality of the criminal justice system. Plea bargaining is primarily based on a kind of risk analysis. Plea bargains, not the subject of this article, will vary depending on the amounts, type, and whether this is a distribution or simple possession case. Plea bargains most often turn on the “intent to sell or deliver a drug” as opposed to the prosecution for the mere possession for recreational use.
A Common Fact Pattern Addresses Personal Use – Intent To Sell Isues
Here is a common fact pattern in Colorado.
Denver officers stop a vehicle for a minor traffic offense. The driver pulls over and then runs. After a short time he is apprehended and arrested. After a search incident to arrest they find 40 dollars in cash and 13 tinfoil packets of suspected narcotics.
Is This A “Personal Use” Case or An Intent To Distribute Or Sell Case?
The analysis of this issue comes down to certain inferences that are drawn by the DA in favor of the charge of intent to distribute. Here are some of the criteria applied to this situation:
Was the quantity of (say heroin, cocaine or marijuana) too much for personal consumption?
What was the purity of the drug confiscated?
Were there weapons located?
Was there a recovery of a large amount of cash?
Was there a recovery of such things as police scanners, “throw away”cell phones” or other communication devices or weighing scales?
Was there a recovery of drug paraphernalia?
How were the drugs packaged?
Even though prosecutors will center on these “factors” and others – there is much room for skilled responses from an Colorado Drug Crimes Criminal Defense Lawyer.