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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: naum] * 1
    #15913509 - 03/07/12 11:17 AM (12 years, 2 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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OfflineTri High
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Re: Ask a defense attorney [Re: Enlil] * 1
    #15913619 - 03/07/12 11:52 AM (12 years, 2 months ago)

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.


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Tri High] * 1
    #15913755 - 03/07/12 12:23 PM (12 years, 2 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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InvisibleStonehenge
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Re: Ask a defense attorney [Re: Enlil] * 1
    #15914345 - 03/07/12 02:52 PM (12 years, 2 months ago)

In my state they do allow expungement of arrests whether resulting in a conviction or not. It depends on the circumstances but they only allow 1 per lifetime so if you are falsely arrested twice you are screwed. Actually, its not full expungement its simply sealing the court records but it can't be accessed except under certain circumstances.

Enlil, many thanks for providing this service. May your karma be great and reward you many times over.


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OfflineHermitCrabsOnE
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Re: Ask a defense attorney [Re: Stonehenge] * 1
    #15919583 - 03/08/12 01:23 PM (12 years, 2 months ago)

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?)

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


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InvisibleStonehenge
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Re: Ask a defense attorney [Re: HermitCrabsOnE] * 1
    #15919658 - 03/08/12 01:42 PM (12 years, 2 months ago)

My 2 cents worth: If they have a search warrant, permission is not needed. You did not specify the details and they will matter. If the police made a search, they most likely had a warrant or implied consent. I believe it will be admitted, but it depends.

Once your friend made the deal, whether they were bluffing on the tapes or not makes no difference. I would have said talk to my lawyer and he would sort that out. They do earn their money in situations like that as well as going to court.

Always give all details so enlil can answer intelligently. I'm not trying to speak for him but that is common sense.


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: HermitCrabsOnE] * 1
    #15919679 - 03/08/12 01:46 PM (12 years, 2 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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Anonymous #1

Re: Ask a defense attorney [Re: Enlil] * 1
    #15922128 - 03/08/12 09:23 PM (12 years, 2 months ago)

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?

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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Anonymous #1] * 1
    #15923160 - 03/09/12 04:50 AM (12 years, 2 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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OfflineRealRollForever
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Re: Ask a defense attorney [Re: Enlil] * 1
    #15923564 - 03/09/12 09:01 AM (12 years, 2 months ago)

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)

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?


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Edited by RealRollForever (03/09/12 09:02 AM)

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InvisibleStonehenge
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Re: Ask a defense attorney [Re: RealRollForever] * 1
    #15923963 - 03/09/12 10:30 AM (12 years, 2 months ago)

>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.


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“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Re: Ask a defense attorney [Re: RealRollForever] * 1
    #15924187 - 03/09/12 11:32 AM (12 years, 2 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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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Stonehenge] * 1
    #15924201 - 03/09/12 11:37 AM (12 years, 2 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: Enlil] * 1
    #15925141 - 03/09/12 03:21 PM (12 years, 2 months ago)

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

That would be in hot pursuit of certain types of criminals, i believe, or witnessing a crime that must be stopped right away such as seeing an assault through the window. I think most anything else would require him to come back with a warrant.


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“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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Anonymous #2

Re: Ask a defense attorney [Re: Enlil] * 1
    #15925234 - 03/09/12 03:43 PM (12 years, 2 months ago)

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.

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Re: Ask a defense attorney [Re: Anonymous #2] * 1
    #15925995 - 03/09/12 06:37 PM (12 years, 2 months ago)

>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?

Anon #2, in my area you can be charged for that even if you have a prescription. In practice they often let it drop but they can pursue it if they wish.


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“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835)

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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Stonehenge] * 1
    #15926151 - 03/09/12 07:06 PM (12 years, 2 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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Invisibleluvdemshrooms
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Re: Ask a defense attorney [Re: Enlil] * 1
    #15928353 - 03/10/12 04:55 AM (12 years, 2 months ago)

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.


--------------------
You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers

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Re: Ask a defense attorney [Re: luvdemshrooms] * 1
    #15928388 - 03/10/12 05:24 AM (12 years, 2 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.

Edited by Enlil (03/10/12 06:28 AM)

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Re: Ask a defense attorney [Re: Enlil] * 1
    #15928460 - 03/10/12 06:45 AM (12 years, 2 months ago)

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.


--------------------
You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers

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