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Ask an attorney * 42
    #15908891 - 03/06/12 12:33 PM (11 years, 10 months ago)

It occurred to me that many of you may have legal questions or issues that you would like answered, but you don't want to pay an attorney.  I have decided to answer whatever legal questions you might have with the following caveats:

1.  I am a licensed attorney who practices in many areas of the law including criminal defense, but I am not YOUR attorney.  This means that you should not be giving me any confidential information that you wouldn't want to give the whole community and anyone else watching.  Keeping it anonymous helps you keep safe and helps me stay within ethical rules.

2.  Law varies from state to state.  If you give me the state you're from, I will try to give you as much specific information as I can.  I can't guarantee the accuracy of anything because there could always be a state in which things are different.  Information I offer should be considered general in nature and might not take local law into consideration.

3.  I will NOT be using Lexis or Westlaw searches to help you.  These services are very expensive, and I can't use them just to give out free advice.  I will, if you so request, point you in the right direction so that you can go to a local law library and start searching on your own.

4.  This thread is not for debating.  If it turns into a debate over who's right and who's wrong, I will simply stop participating.

5.  Free legal advice is sometimes not worth what you pay for it.

Guidelines:

1. In the law, we use a lot of jargon.  We calls these "terms of art."  When I use a term of art in my posts, I will try to put it in quotation marks so that you can look it up for more information if you so desire.  Understand, however, that I often use quotation marks normally, so not everything in quotations is a term of art.

2. If you have multiple questions, ask them in multiple paragraphs so I can separate them when answering.  I'm not exactly the most skilled at using this editor.


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Edited by Enlil (01/29/14 10:35 AM)


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: All We Perceive]
    #15912691 - 03/07/12 05:44 AM (11 years, 10 months ago)

Quote:

All We Perceive said:
If there is weed and bowl sitting in the open in a hotel room on the table and there are 3 people in the room, if no one says anything, is there any way for them to successfully try all 3 as a package?




First, there is no "package" doctrine where people are tried as a package.  Each defendant is entitled to his own lawyer, his own arguments, and his own verdict.  You probably already knew this, but it is an important distinction to keep in mind. 

Of course, sometimes co-defendants are tried in the same trial.  In fact, it is more common than not that they are.  This is an efficiency thing.  In cases where trying the defendants in one trial would unfairly prejudice one or more defendants, the trials can be separated.  This is also true when one person is charged with multiple different crimes.  There are times when the different crimes are tried in different trials as well if need be.  This is called "bifurcation."

This answered your question, but I think what you are really asking is whether all three of them are likely to be charged and tried with possession.  The answer, like many answers in the law, is maybe.

Possession requires that the defendant exercise "dominion and control" over the substance.  If someone has crank in his pocket, he obviously has dominion and control over it.  It is also true, however, that if someone has stashed some weed in the bushes so that he can grab it when a customer comes, he still has dominion and control over it.  Under the dominion and control theory, it is hard for more than one person to have possession.

There is a concept called "constructive possession" which basically says that multiple people can share possession of the substance.  Your example falls into this category.  Similarly, if a car is pulled over and weed is found in the car, everyone in the car has constructive possession of that weed.

There ARE defenses to a constructive possession case, however.  The most effective one is knowledge.  If a person in the hotel room doesn't know it's there or doesn't know it's weed, then they can beat the case.  Lack of knowledge doesn't defeat the constructive possession aspect, but it does negate the "mens rea" required to convict someone.

So...long story short...it is not only possible to convict multiple people for possession...it is routine to do so.  It is also routine to pick the one with the shortest rap sheet and get them to testify against the others.

Quote:



Let us suppose you secretly record a conversation with a cop and he testifies differently than what actually happens.  Your state requires both parties to be on notice that they are being recorded.  You then try and introduce this tape as impeachment evidence.  Result?





If he lies, the tape comes in.  You'll have to lay a foundation, but the tape will undoubtedly come in if he lies.  This is, of course, for a criminal case.  A defendant in a criminal case has a lot more constitutional protection than a litigant in a civil case.  As a result, he can use the tape.

Having said that, you specifically used the word "impeachment."  Even in a civil case, the tape could be used for impeachment.  It just couldn't be used to prove your case.  The distinction between the two may not be apparent to you immediately, but it makes a difference.


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Re: Ask a defense attorney [Re: t00th]
    #15912709 - 03/07/12 05:55 AM (11 years, 10 months ago)

Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?

I don't want to sound like a noob here, but I work in the trenches...people don't generally call things by these terms on the street.

I am going to assume that you are talking about a legal substance that can be used to make an illegal substance.  I will further assume that "caps" refers to a finished product that would is illegal.

First, there is no possession charge for legal substances...even if you did have scales, etc.  States do have crimes that amount to possession of paraphenalia, but those aren't strictly possession.  They require proving an intent to use the items for an illegal purpose.

Usually, these types of things are all based on context.  If you're caught driving a rental truck with 400 lbs of pseudoephedrine hidden inside second hand furniture...you're going to have an uphill battle fighting that one.  If you're caught with 10 boxes of sudafed, the state's going to have the uphill battle.

I'm sorry I can't be more specific.  I just am not certain what exactly you are asking.


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Re: Ask a defense attorney [Re: Pandora5a]
    #15912761 - 03/07/12 06:26 AM (11 years, 10 months ago)

Quote:

Pandora5a said:
What are some of the biggest legal misconceptions you have come across?




People generally misunderstand Miranda and how it applies to them.  A vast majority of clients think that they must be read the rights when they are arrested.

In addition, people have a very limited grasp of the 4th and how it protects them against searches and seizures.  Some think a warrant is always needed.  Others think that probable cause is enough to search.  This is a tricky and convoluted part of constitutional law, so it is natural for people not to know all of the details.

I would have to say, however, that the biggest misconception I come across is actually not one my clients have.  It is a public misconception.  There is a significant majority of people who simply see crime as black and white.  They ask me "how can you defend those people?"  Truthfully, it isn't about guilty or not guilty.  It's almost always about shades of culpability.  Usually, a client is guilty of something but almost never everything for which they're charged.  Most of the time, they have a substance problem or a psychological problem...or both.  They aren't "bad" people.  I have only had one client where I sat across from him and thought "this dude is evil."  That is the exception.
Quote:


How much of Canada/US drug law is similar?




I am not qualified to answer that.  When it comes to criminal law in general, the US Constitution plays a huge role in how it plays out.  Canada obviously has its own framework.  I am not really familiar with it.
Quote:


You are caught pulled off for the suspicion of driving while intoxicated. What is the most effective course of action?




Depends on your state and your sobriety.  If you are stone sober (haven't had anything to drink), comply with the officer and be on your way asap.  If you've had anything to drink, that's where it gets a little trickier.

If you're in an "implied consent" state, then you have to submit to a test (usually breathalyzer) either at the stop or at the station or you lose your license for a period of time.  This is completely separate from any DUI charge you may face.  That puts you in a tough place.  If you think you'll pass, you might be tempted to submit to the test so that you can keep your license...but if you're wrong and over the limit...you're fucked.

On the other hand, if you don't submit, then they have to have probable cause and a warrant to force you to give blood for a test.  This takes some time.  Alcohol levels could go down during that time.  Of course, they take this into account in determining what your level was when you were pulled over, but that is much easer to fight than an immediate test. 

Also, alcohol levels can go UP over time in certain circumstances.  For instance, if you had a shot of vodka right before getting in the car, you're not drunk yet...the alcohol isn't in the blood.  If you're pulled over and tested immediately, you'll probably pass.  If you wait 30 minutes, you'll definitely have more alcohol in your blood than you would have.

Time blurs all of it, and the state has the burden of proof.  A good attorney can use the time between being pulled over and being tested to your advantage in many ways.  This is on top of the option of challenging the warrant for lack of probable cause.

Long story short: If no drinking at all, submit.  If you've been drinking, don't submit.  If you're in an implied consent state...be ready to lose your license for a period of time.
Quote:


Any interesting "loophole" type stories?




This isn't really the place for war stories, but I have won many cases based on logical loopholes that I exploited.
Quote:


What is the best way to find truly "effective" representation without a lot of funds?





First, don't underestimate the public defender.  They get a bad rap because they are portrayed as burnouts who don't care, but you'd be hard pressed to find attorneys with more trial experience than public defenders.  Only prosecutors have as much experience.

Hiring an ex-prosecutor or public defender is a good choice too.

The difference between the two is that the one you hire will have less clients at the same time and can probably move your case a little faster because of that.  The public defender will usually do the same things, but it takes a lot longer because you're one of 30-100 active cases he's working.

Hiring a lawyer who was never a prosecutor or public defender is fine if you're planning on taking a plea, but I wouldn't want one for a trial.  The average civil/criminal private practice lawyer does less than one trial a year.  The average PD or DA does 2-4.  Some do many more than that.

In addition, if you are taking a plea, hiring a lawyer probably isn't necessary.  He isn't going to get you any special deal, and you'll have to pay him for it.  In fact, a PD probably has an advantage here because he cuts deals with the same prosecutors day in and day out.  They have a working relationship far more than the private attorney does.

What you DO get with a private attorney is the hand-holding.  You get the guy you can call at any time to discuss your case.  You get him answering your questions and explaining the process in depth...of course..you pay for all of this.


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Re: Ask a defense attorney [Re: GuruBushHippie]
    #15912835 - 03/07/12 07:03 AM (11 years, 10 months ago)

Quote:

GuruBushHippie said:
Got arrested for DWI. The cop took my knife which I willingly handed over. The knife was not involved in the crime in any way. I never got it back. I called the property office and they said there was no record of the knife and that the arresting officer didn't know anything about it. Can I sue?




Yes, but you will most likely lose.

Obviously, you have the right to have your property back...This is an issue of proof.  If the police report doesn't mention the knife (check this) and the cop says he didn't take it, then you're going to have to prove that he did take it.

To do this, you can testify that he took it.  He will testify that he didn't.  In addition, you will be cross-examined about your sobriety at the time.  This will cut into your credibility as well.  In the end, the judge will have a man who admits to being under the influence at the time saying one thing, and a cop saying the other.  That's not exactly the makings of a solid case.

Besides, the cost of the knife is probably not worth the filing fee and the hassle of court.


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Re: Ask a defense attorney [Re: Alan Rockefeller]
    #15913083 - 03/07/12 08:58 AM (11 years, 10 months ago)

Quote:

Alan Rockefeller said:
Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?





A research chemical is a drug that has not been scheduled yet.

I am not a lawyer, but I can tell you what happened to me when they found a small bag of jwh-073 in my wallet. This was back when the substance was still legal, and involved local police in California.

The cop asked me what it was.  It had been in there a long time and I didn't remember what it was.  I told him the truth, that I didn't know.  He tested it with narcopouch test kits, and when he used the opiate pouch, it turned yellow.  These tests are notoriously unreliable and I knew this was wrong since I have never been into opiates, but the kit established probable cause so he ran me through the system.  I was arrested for felony possession of a controlled substance and transported to county jail.  It cost $1500 to bail out - Otherwise I would have been in there a couple weeks until I got in front of a judge.  On the way out of jail they took my DNA.  At my first court date the state asked for a continence to test the drugs.  On my second date the state dropped the charge because the substance tested negative for controlled substances when tested with GC/MS.  I never got the 1500 back, and now have a permanent felony arrest record.

I would expect the same thing to happen when busted with any substance which looks like drugs.




I assume your bail was $15k and you used a bondsman?  Otherwise you should have gotten your bail back.

And to the original asker of the question...That's pretty much how it would go.  You wouldn't be convicted or likely even go to trial, but you might get arrested.



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Edited by Enlil (03/07/12 08:59 AM)


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Re: Ask a defense attorney [Re: naum]
    #15913296 - 03/07/12 10:21 AM (11 years, 10 months ago)

Quote:

naum said:
Here you must go through a bondsman no matter what.

Can you not get your felony arrest record, prints, and DNA record permanently expunged since the case was dropped? You would be able to do it here with the help of the lawyer. It's well worth the lawyer's fees.





That isn't true...you can always place a cash bond.

And there is no expungement of an arrest...only convictions can be expunged.

Keep in mind, however, that an arrest isn't used against you as a "prior" for later cases, and it doesn't show up on most background checks.  Usually, an arrest record simply goes in the police computer and sits there.


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Edited by Enlil (03/07/12 10:53 AM)


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Re: Ask a defense attorney [Re: t00th]
    #15913357 - 03/07/12 10:40 AM (11 years, 10 months ago)

Quote:

t00th said:
Quote:

Enlil said:
Quote:

t00th said:
You get caught with a properly labeled research chemical - with no scale or caps or anything - what is your chance of beating that in court




Specifics are nice...What is a "research chemical" as you use the phrase?  Similarly, what are "caps"?  In addition, what are the charges you're trying to beat?

I don't want to sound like a noob here, but I work in the trenches...people don't generally call things by these terms on the street.

I am going to assume that you are talking about a legal substance that can be used to make an illegal substance.  I will further assume that "caps" refers to a finished product that would is illegal.

First, there is no possession charge for legal substances...even if you did have scales, etc.  States do have crimes that amount to possession of paraphenalia, but those aren't strictly possession.  They require proving an intent to use the items for an illegal purpose.

Usually, these types of things are all based on context.  If you're caught driving a rental truck with 400 lbs of pseudoephedrine hidden inside second hand furniture...you're going to have an uphill battle fighting that one.  If you're caught with 10 boxes of sudafed, the state's going to have the uphill battle.

I'm sorry I can't be more specific.  I just am not certa
in what exactly you are asking.




sorry let me clarify

by a research chemical i meant an actual drug that may not be scheduled yet. lets say - MXE. and by a cap i meant the pill shell that is used to cap chemicals up for sale. caps = intent of human consumption.

the way i figure it - your riding down the road with 100g of mxe - properly labeled and with nothing on you to make it seem like its for human consumption - your still going to get arrested.

my question is are you going to get off of the charge (possesion, trafficking, whatever it may be) when you go to court.




So, I'm guessing that MXE would be considered an analog of a scheduled drug...hence the "for human consumption" issue.

If it IS an analog of a schedule I or II drug, then yes, you can be prosecuted...but...they have to prove beyond a reasonable doubt that it was to be used for human consumption...Having it in capsules would be pretty damning, having capsules in the same bag with it would be bad too...having capsules in the car and the mxe in the car...not necessarily a big issue...

BUT..You will have to go to trial in that case.

If you have no capsules or anything else pointing to human consumption, the mxe alone might get you arrested...but it wouldn't get you convicted...or even to trial, frankly.  That case would go nowhere.

Alan's situation had the added complexity of it testing as a controlled substance..that was what got him into the shit he was in.  He still never had any chance of a conviction.

You do have to understand that it doesn't take a lot for a police officer to arrest someone.  Truthfully, in most states, a cop can arrest you for speeding.  It rarely happens, but it can.

I have to apologize for my ignorance about MXE.  I am not up on the latest and greatest drug stuff.  My experience is limited with drugs, although I represent a lot of clients that use them regularly.  Mostly, that is crack, heroin, meth, and pot.


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Re: Ask a defense attorney [Re: Alan Rockefeller] * 2
    #15913392 - 03/07/12 10:50 AM (11 years, 10 months ago)

Quote:

Alan Rockefeller said:
Quote:

Enlil said:
I assume your bail was $15k and you used a bondsman?  Otherwise you should have gotten your bail back.






Correct.  I would have bailed myself out but I don't know how to go about withdrawing $15k from the bank while incarcerated.  Is that even possible, or is it necessary to borrow the cash from a friend?




If you had the 15k in the bank, a judge would have let you out on the promise to post that same day.  I've seen it happen a bunch of times.  Unfortunately, it does require going before the judge...so it might take a few days.  If you had a lawyer, he could have withdrawn it from your bank as well...with your consent, of course.  I've had clients call friends to break into their house and get their checkbook so I could take it to them in jail and have them write the check for bail...to me of course...then I bail them out.

Start Rant:  This is one of the most fucking frustrating things about working in the criminal system.  People get arrested and sometimes spend a month or two in jail before ever being charged.  A month in jail is enough to make a lot of people lose everything that they have...their home, their job...most of their shit...and all of this before they get charged. 

I had a client who spent 4 month in jail before they finally let him go without charges...what the fuck is he going to go home to?  It was great to tell him, "they're letting you out today." but...I know he's going to go to mom's house and try to rebuild his life from nothing.

End Rant.


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Re: Ask a defense attorney [Re: naum] * 1
    #15913509 - 03/07/12 11:17 AM (11 years, 10 months ago)

Quote:

naum said:
I apologize for my ignorance on the bond issue. Yes a cash bond in full is allowed here. For non-cash bonds it's very complicated and varies from county to county.

Not to violate your 4th rule, but my state does allow "total" expunction of an arrest. Relevant code: hxxp://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.55.htm . I don't know if we are the odd ball or if there is something similar in California which I think was the question.




I stand corrected.  I've never heard of that, to be honest.  A typical expungement proceeding results in a withdrawal of the guilty plea or setting aside of a guilty verdict, followed by a dismissal of charges...The arrest record isn't usually even dealt with.  That is certainly true in the states in which I practice.  Of course, as I stated in the original post, states vary.

Having said that, TX might have public arrest records...something that most states do not have.  Most states have public criminal records, but they don't include arrests.

One thing Alan can do...and probably should do...Is submit a request for record from the CA DOJ...I'd be willing to bet that his arrest and charges won't show up...I'm also pretty sure that CA doesn't have a process for expungement without conviction.

I was actually arrested in california on three separate occasions...and when the state bars ran my background check (which is very thorough) they never found any of them.


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Edited by Enlil (03/07/12 11:27 AM)


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Re: Ask a defense attorney [Re: Tri High] * 1
    #15913755 - 03/07/12 12:23 PM (11 years, 10 months ago)

Quote:

Tri High said:
Having gotten a DWI with a SIS, when I'm filling out job applications and they ask "have you ever plead guilty to an offense on the law," should I mark yes or no?

Because I'm not convicted of it after I am off probation but I think that in order to get SIS you have to plead guilty.

So do I mark yes on the job application for a question of having plead guilty to breaking a law?

And thank you.




I am assuming that SIS a type of diversion program in your state.  There are several different ways that this type of thing works.  Some states require you to plead guilty.  Some do not.  In any case, after you finish probation, the charge is dismissed.  In order to dismiss the charge, the guilty plea must be vacated...so...after your probation is off, you can answer no legally whether or not you plead before probation started.

Having said all of that, here is another thing you should know.  Lying isn't illegal unless you have a duty to tell the truth...on a job application, you don't have a duty to tell the truth.

Here is where it gets tricky though...If you say you didn't plead guilty, and they find that you did..even if it was vacated, they might not see that as a truthful answer.  If you never plead guilty, but you go through the probation and have it dismissed, so you answer no, they may not see that as altogether honest either...assuming they find out.

When it comes to job applications, remember that you can be fired for any false statement on the app, but you can be fired for no reason at all, so that isn't all that big of a deal.  More importantly, if it's the type of job that is likely to do a background check, I would just say yes and explain that you did a diversion program.  Your DWI was a misdemeanor, I'm sure...and it will be dismissed...so...It isn't all that big of a deal.

Some employers see a diversion dismissal as an admission of guilt regardless of whether it's on your record...others do not.  There's no way you're going to know which it is, but I would disclose it just to cover your ass.  Most likely it won't be taken all that seriously anyway.


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Re: Ask a defense attorney [Re: HermitCrabsOnE] * 1
    #15919679 - 03/08/12 01:46 PM (11 years, 10 months ago)

Quote:

HermitCrabsOnE said:
Okay, here is an example I would like clarification of.  This is all theoretical of course, purely for curiosity.


Say your friend has 19.5 grams of cannabis in his room.  It is in a locked box, inside of a locked cabinet.  In the state you live, less than 20 grams of cannabis is a misdemeanor with a $1,000 fine.  They do NOT consent to a search of his property.  (what legal edge would this give him in evidence against possession of less than 20 grams of cannabis?)




Being in a locked box helps to avoid a "plain view" issue.  If the cops are there searching for pot, and the warrant says that...the locked box does nothing for him.  If they are there for another reason...or have a warrant to search for something that would not fit in that box, then opening the box would be an illegal search and the evidence would likely be suppressed.
Quote:


Now say this friend is a dealer.  They makes sales that are small time.  They sell to an undercover cop, who reports them to the higher ups, and the cop filmed the transaction.


Now, I'd like the answers to two different scenarios.

In one scenario, the police search the property, but aren't given consent to the locked door.  They leave, there is no cannabis in the room when they return, they have nothing to go on.  All they have is the video of selling.

In the second scenario, they found the 19.5 grams of cannabis, but not with the owners permission.  The dealer claims they were for their personal use.  Can the evidence be thrown out?

In court, what is the best defense against this? I had a friend who was in the same situation.  She was the boyfriend of a dealer, and she made a sale to a guy down the road.  The guy was a snitch for the cops, and they took him (and her eventually) in.  They offered her a plea bargain of 3 months, and threatened her the other sentence if she fought the case. (much longer sentence).  They claimed to have evidence against her, but NEVER SHOWED her the evidence.  She has, to this day not seen the evidence they claim to have.  She just took the plea bargain.  I have a feeling this was the wrong move to do..she could have saved herself.  Am I right on that?


Couldn't she just say, "SHOW ME THE TAPES!", and if they couldn't furnish them, be off scott free?  What if they had the tapes and played them back in the court room, would her sentence be longer, or would it be the same as a guilty conviction?

peace





First, if they have a video of the transaction, it doesn't really matter if they found pot or not...The undercover cop will testify to the transaction...the video will support that testimony...and the actual drugs from the transaction will be analyzed and the results will come into evidence...That's an open and shut conviction.  If I'm facing that, I'm gonna tell the client to take a deal.

Now, your second part gets a little muddled.  First, they don't have to show you shit until just before trial.  They DO have to turn over discovery material, but not at the plea bargain stage.  Often they will to encourage you to take a plea, however. 

As far as anything seized in a nonconsent search...that's going to depend on whether the search was reasonable under the 4th amendment (and whatever constitutional or statutory framework the state has).  There aren't enough facts to determine that in your post.  Generally, however, if the cops want to search someone's home...they need a warrant.

You use the word "dealer" and the word "owner".  This is important because only people in legal possession of a property have protection from illegal searches.  If the dealer lives at the house, he has protection.  If, however, it is someone else's home and he is just a visitor...he does not have "standing" to challenge that search under the 4th amendment.

Keep in mind, however, that even if the drugs seized were suppressed, an officer's testimony is still enough to convict...assuming they have the drugs from the transaction.

Having said all of the above, your story about what actually happened is significantly different from your hypotheticals.  You say that your friend sold drugs to a dude who eventually snitched..that is a whole different deal from selling to an undercover cop.  In that instance, there is a lot more opportunity to deny the transaction.  The snitch has every reason to lie because he is the one who is caught with the drugs.  In addition, a videotape is unlikely to be of much use in terms of proving that it was drugs that changed hands...there are some reasonable doubt opportunities here.

I can't tell you whether she made a good deal or not, and I certainly can't speculate as to whether the cops were full of shit...but I would generally recommend that she have a lawyer in that instance...he will want to see something before he has her do anything...at least a police report.  Cops can lie to get you to make a confession...but i doubt a cop would lie about a videotape on a police report...that would be professional suicide.

As far as whether a guilty verdict would be worse for her than a guilty plea...almost certainly it would result in more time.


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Edited by Enlil (03/08/12 01:53 PM)


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Re: Ask a defense attorney [Re: Anonymous #1] * 1
    #15923160 - 03/09/12 04:50 AM (11 years, 10 months ago)

Quote:

Anonymous said:
Scenario: There are multiple people living in a house and a search warrant/knock-and-talk goes down. There is a grow op in one bedroom and a (legal) gun in another bedroom. What's likely to happen? Will everyone living there be charged? If only the grower is charged, will he or she having amplified charges for the gun being present?




There aren't a lot of details here, but I can give you a general landscape of the law in this area. 

I can't tell you who WOULD be charged because that will be up to the discretion of the cops and the DA, but everyone in the house CAN be charged.  This is one of those situations where the details matter a lot.  If this "grow op" is an entire bedroom of the house (with no bed) then probably everyone in the house is going down.  If it's a small thing in the corner of one bedroom or in a closet...maybe not.

The difference here is whether the setup looks like it is a "joint venture" (no pun intended).  If it is obvious that the house has been set up to grow, obviously everyone living there knows about it.  If it looks like one roommate's personal hobby, then there is a good possibility that the rest of the people living there are not involved.

The same is true of the gun.  If the setup looks like multiple roommates with their own rooms, then it isn't likely that the gun could be used for any kind of sentencing enhancement.  Again, this is a situation where the details matter a lot.

As far as the law goes, anyone who actively and knowingly participated in the grow op is guilty of manufacturing.  This would include even running out to pick up some fertilizer (assuming that you knew it was for growing illegal substances).  The important thing to remember, however, is that the state still has the burden of proving this active and knowing participation.  This is why the details matter so much. 

The layout of the house and what stuff is where will largely be used to determine who was and who wasn't involved in the grow.  Knowledge of the grow would be a prerequisite to guilt, so if the grow is obvious to anyone in the house, that is covered.  If the grow is pretty well hidden, the argument can be made that the other people didn't even know it was there.  As far as active participation, it's going to depend on the facts.

One note about the gun:  If, instead of one gun in the house, there were 25 guns of varying types (legal or not), that would be clear evidence of a larger operation in which more people were involved.  This would support a case against the entire house.  One gun probably doesn't help or hurt the case.

Having said all of the above...what generally happens in these cases is that everyone is arrested, and the cops question people.  Based on that questioning and the criminal records of those involved, the cops make an educated guess as to who's operation it was and who else was probably involved.  They try to get a confession from the ones they think guilty, using the threat of charging the "innocent" one.  If this tactic doesn't work, the DA will usually try to cut a sweetheart deal with the least culpable people on the condition of cooperation.

I can't even begin to tell you how many girlfriends and wives I have seen in this position.  It happens all the time.


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Re: Ask a defense attorney [Re: RealRollForever] * 1
    #15924187 - 03/09/12 11:32 AM (11 years, 10 months ago)

Quote:

RealRollForever said:
Great thread, I appreciate the legal advice.  I have 2 questions for you

1- Say I'm driving down the street after smoking and I am pretty stoned and the car smells. (not drinking)  I am not in possession of any weed but the cop suspects DUI/DWI.  Am I able to consent to a breathalyzer but refuse the roadside sobriety test thus avoiding an arrest? (State is PA)




This is very state law dependant, and I don't know PA dui laws....so I don't know if refusal to consent to the field sobriety test is grounds for license suspension...I guarantee you that it is not, of itself, probable cause to arrest you.  Having said that, this is all going to depend on whether the guy thinks you're stoned...If he does, he's gonna have to arrest you to get you to take a blood test.  The circumstances of the stop including your demeanor will be what gives him probable cause..so...not taking the sobriety test limits his opportunity to observe enough to give him probable cause.

Of course, your mileage may vary...cops often do what they want and worry about justifying it later.
Quote:


2- A bit different, I'm driving completely sober and have a misdemeanor amount of cannabis in an airtight jar hidden in the trunk.  The car has no noticeable weed scent whatsoever as the car had been aired out for a few days prior and a cologne scent was sprayed to cover any remaining traces.  I am pulled over for a traffic violation of some sort and the cop profiles me/items in car and attempts to search the vehicle, but I do not consent.  He then threatens to call the K-9 Unit in, what is the best thing to say so as not to imply guilt or suspicion in that instance?  Would the search be ruled unreasonable later on in court based on the circumstances previously described?



Avoiding the K9 unit would is the wise choice.  An airtight jar may not be (and very often isn't) effective against the K-9...so your best bet is to avoid getting the K9 there...


Understand, that calling the other unit takes time...they don't like to spend a lot of time with it if they think it's going to be fruitless.  A guy who is scared will often just clam up and hope the cop lets him go...by pushing the cop a little bit, it tells him that you're not scared but you are annoyed.  You're basically telling him to hurry up and call the k9 already so you can leave...someone with something to hide rarely does that.

This isn't a magic bullet, of course, and it will depend on how the rest of your demeanor is...but it does help.  Understand, of course, that you don't want to totally piss off the cop...if you do that, he will call the k9 just to delay your stop...

As far as the legality of it all, while you're stopped, a cop can call a K9 without any probable cause as long as he is not doing it for the purpose of unreasonably detaining you longer.  If the K9 alerts, that's probable cause.  There's no way around it unless you can show in court that the dog is prone to false alerts, etc...nothing you can control at the scene.

If he doesn't call the K9 and searches anyway...he had better have probable cause and a good story...He can search the interior of the car, but the trunk is off limits unless you have the type of car that one can fold the seat down and get into the trunk.


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Edited by Enlil (10/17/12 10:42 AM)


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Re: Ask a defense attorney [Re: Stonehenge] * 1
    #15924201 - 03/09/12 11:37 AM (11 years, 10 months ago)

Quote:

Stonehenge said:
>Scenario: There are multiple people living in a house and a search warrant/knock-and-talk goes down.

A search warrant is totally different than a knock and talk. In the latter they are trying to get you to let them in when they have no legal right to go in. Likewise in the scenario where they suspect pot and try to bully you into allowing a search, just say no. At least 9 times out of 10 in my experience and that of others i've known, they bluster and bully and then give up when you calmly and firmly say no. If they had probable cause they would not be working so hard on your consent so do not give it. This has all been said before but it can't be emphasized enough.




That's true, but his hypothetical assumed that they searched...so I figured he was talking about a warrant search...

There are times, however, that a cop has probable cause but has not yet obtained a warrant...He can't just search your house because he has probable cause...he needs to get a judge to sign a warrant, and often he knows that you know he's there...so he's worried that you'll clean house.

There are certain circumstances where he can search with probable cause alone, but when you're talking about a house...Those are rare circumstances.


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Re: Ask a defense attorney [Re: Stonehenge] * 1
    #15926151 - 03/09/12 07:06 PM (11 years, 10 months ago)

Quote:

Anonymous said:
Great thread! Thanks for all your time and advice. I've got a fairly simple question.

Let's say you have a prescription schedule 2 substance in your possession that you're legally prescribed to. You also have the bottle for this substance in your possession. But, the schedule 2 substance isn't inside the bottle. If you get searched and the substance is found outside the bottle, but you have the bottle and a legitimate prescription, will you be facing arrest or prosecution? Thanks!

By the way, a research chemical or RC is a drug which is not yet illegal and not necessarily an analog of a scheduled substance.




Whether you will be facing arrest will depend upon the circumstances of the whole thing...that's up to the cop...He may or may not believe that the drugs found are what was supposed to be in the bottle....you won't be prosecuted for that, however.  Schedule 2 drugs are legal with a prescription.

This is all, of course, assuming that the prescription is still valid and that the facts support that you're using the drugs as prescribed...If there's some indication that you've packaged the drugs for sale or given them to someone else..that's a whole other thing.

Keep in mind that schedule 2 drugs are much more tightly controlled than a typical prescription.  Generally, you're supposed to discard these medications within a certain time period, etc. Failure to do so can make your legitimate prescription no longer a defense.

Edit:  I'm sorry.  In my haste to get you an answer quickly, I guess I didn't really give you a complete answer.  It is true, as pointed out below, that you CAN be prosecuted for possession outside of the container.  It is, however, highly unlikely that you would be.  In fact, it is fairly unlikely that you'd even be arrested for it.  This is why it is pretty much up to the cop and whether or not he believes you.

The other facts, such as whether or not the prescription is still valid for treating an ailment that you still have, or whether the facts support a theory that you're selling your prescription meds...that stuff will matter much more to the prosecutor in deciding whether or not to prosecute you.  DAs generally aren't looking to jail people for using a pill box.


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Edited by Enlil (03/10/12 05:46 AM)


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Re: Ask a defense attorney [Re: luvdemshrooms] * 1
    #15928388 - 03/10/12 05:24 AM (11 years, 10 months ago)

Quote:

luvdemshrooms said:
Quote:

Enlil said:
He may or may not believe that the drugs found are what was supposed to be in the bottle....you won't be prosecuted for that, however.




I believe that to be state dependent. In the state I live in the requirement is that prescription meds remain in the prescription bottle, with the label intact. That may have changed as I haven't looked into for some time.

It is/was even illegal to use pill organizers... unless the pills were placed into the organizer by a licensed nurse. Even the the original bottles must remain in the possession of the person.




That's true of the federal possession laws as well, at least with Schedule 1 and 2 drugs, but I've never heard of a prosecution for it.  I'm sure it has happened, but that had to be a prosecutor with a chip on his shoulder and/or a personal vendetta.

This is probably a good place to clarify how the prosecution game is played.  Laws like this are tools to be used by the prosecutor to achieve his goals when he couldn't otherwise. 

A DA has two overriding duties that he has to perform.  First, he must represent and advocate for the people of the state.  Second, he must do that which serves justice.  These duties often conflict.  As an advocate, he must seek to protect the public from criminals, which often means seeking the maximum sentence.  As a servant of justice, often he must be mindful of the circumstances and look to not overcharge a defendant. These conflicting duties are why I could never be a DA.

Most DAs are actually quite reasonable people with a very strong desire to be fair.  Of course, they do have to be careful because they are somewhat evaluated by their conviction rate. As such, when a case comes across a DA's desk, he has to determine what he considers a fair outcome from the facts he currently has.  He charges based on that.  Usually, he will also charge lesser crimes as a fallback position in plea bargaining or a trial that does not go his way.  Sometimes he will charge higher crimes that the facts may support once more is brought to light...all depends on the circumstances.

In the end, however, the DA is always in discussions with the defense attorney.  Things change as he talks to the police, witnesses, etc.  The DA's position changes all the time.  Many, many times, a case that looked bad on paper is revealed to be something entirely different and a case will be dropped.  Other times it will be much worse and the DA is suddenly adding charges. 

In many cases, it is clear that the defendant was up to some serious shenanigans, but there isn't enough evidence to convict...in these cases, a DA might use a technicality like the fact that a pill is not in the original container to get a conviction where he wouldn't have otherwise been able to.  Again, this is part of the DA's duties of advocacy and justice.

As a defense attorney, if I have a client that was arrested for a substance for which he has a valid prescription, I'm going to talk that side up to the DA.  I'm going to paint my client as a kid who didn't know this small point of law and shouldn't be punished for it.  If the DA buys that, or thinks that a jury will buy that, there won't be a prosecution.  If the DA comes back to me with, "Explain why the pills were in a baggie in a cigar box with cash" then we're going to have a problem.  It isn't that the DA is really trying to send someone to jail for improperly storing the pills.  He wants to send the guy to jail for selling drugs...he just can't prove that part of the story.

In the end, remember this.  Prosecutors decide which cases they are going to bring.  This is why conviction rates are so high.  If a case is not likely to win, the prosecutor won't pursue it.  He gets to pick his battles.  Defense attorneys have to play the cards they are dealt.  This is why it is so important to have the attorney at the beginning.  Often, one can avoid charges being filed altogether...or get them dismissed early.


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Re: Ask a defense attorney [Re: luvdemshrooms]
    #15928498 - 03/10/12 07:07 AM (11 years, 10 months ago)

Quote:

luvdemshrooms said:
Well, I hear what you are saying, but... a few years back I had the misfortune to be on a grand jury in the county where I reside. I can assure you that people were prosecuted for just that, although if I can't recall if each instance of that being prosecuted was a part of a larger parcel of offenses. I want to say there were at least a couple instances of it being the sole charge, but memories fade.

I agree with your summation of it most likely being prosecutors being prosecutors.

Funny thing is the local head prosecutor has somewhat of a rep for being a coke head. I have no first hand knowledge of it though.

One of the "cases" he handled during my grand jury time was a mentally slow individual who had 2 - 3 seedlings in Dixie cups. Half dead seedlings. He told us he was prosecuting this person to help them. I wanted to laugh and cry at the same time.

The grand jury was a very distasteful experience that I hope to never repeat.




I don't know what state you're in, but some states (and the federal system) require that a grand jury bring charges. Other states allow charges to be brought by a DA alone.  In states where a DA has to indict (have the grand jury bring charges), he will often just give the GJ the facts that support the charges being brought.  You won't always know much more than that.  He has to go to the GJ for anything he does, so he tries to make it as quick and efficient as he can.  As you know, the defense is not allowed to bring evidence.  It's almost certain that you got less than half of the story. 

This is why it is often said that "A DA can get a Grand Jury to indict a ham sandwich."

Also, keep in mind that testimony in the grand jury can be a great source of impeachment material for the defense.  It is quite common to cross-examine someone about inconsistencies between the two testimonies.  Prosecutors try to minimize this by having as little testimony as possible in the GJ...not to mention, the more comprehensive the DA is with the GJ, the more of a preview of the case the defense has.




Edited by Enlil (03/10/12 07:50 AM)


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Re: Ask a defense attorney [Re: luvdemshrooms]
    #15928571 - 03/10/12 07:53 AM (11 years, 10 months ago)

Quote:

luvdemshrooms said:
Yeah. It was pretty clear that not only were we getting half the story, the half we were getting often wasn't even a well told half.

The ham sandwich line is one I've used here before.

I've made a couple posts on my grand jury experience if you'd care to use the search to find them. It was a depressing experience.





This is why many states don't bother with Grand Juries.  The federal system doesn't have a choice because it's in the constitution.  Most states that have GJs do so because the state constitution requires it.  One state I work in has mandatory GJ indictment for felonies and no requirement for misdemeanors.  Even there, clients often waive indictment if they are going to take a plea anyway...since it's much quicker to get the case over with instead of waiting for an inevitable indictment.


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Re: Ask a defense attorney [Re: Stonehenge]
    #15936484 - 03/12/12 06:21 AM (11 years, 10 months ago)

Quote:

Stonehenge said:
Where i am we have both gj's and charges without a gj. The da can issue an "information" to directly charge the person. What usually happens is the da will information on most petty crimes and those he has a solid case. Those he has a weaker case but does not want to drop it outright since there may be pressure from victims and perhaps the public to go forward with, he will present to the gj. This is often the case with situations in which there are political ramifications. Or he may want to go forward but there could be pressure not to do so.

For example, there may be clear evidence to support the charge but it was a grandma at a demonstration who refused to leave private property and was charged perhaps with failure to obey a lawful order. By going through the gj he does not send the message that this will be overlooked in the future and keeps on the good side of cops who want this prosecuted. If the gj says no, he has done all he could.




I promise you that a prosecutor has no worries about "keeping on the good side of cops."  In states where the GJ is optional, a prosecutor will often go to the GJ because he doesn't want to be the one who is blamed for the decision..that's true...but that's mostly about public opinion.

Another reason that a prosecutor goes to the GJ instead of filing an information is that a case brought by indictment is not as vulnerable to an appeal challenging probable cause to charge.  An information is reviewed using a higher standard than an indictment.


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