This is a Guest Post from the Rosenblum Law Firm.
Getting arrested for Marijuana possession can get you in a lot of hot water. Most marijuana possession cases are considered felonies and carry heavy fines and most often jail time. The good news is that since it is one of the most common of all drug offenses, lawyers have a good amount of experience defending people charged with marijuana possession. If you were charged with possession of Marijuana the penalties can be pretty severe depending how much of the substance you were caught in possession with. Contact an experienced attorney if you are facing possession charges as you may have a number of defenses available to you. Below are 5 of the most common defenses raised in marijuana possession cases.
- You did not “know”For Arizona, a drug possession conviction according to the state law requires that a defendant have “knowledge” of possession. The state has the burden of proving that you had knowledge of the drugs on your person (see Actual Possession and Constructive Possession below). If your defense attorney can establish reasonable doubt that you did not “knowingly” possess the drugs it can lead to a dismissal of the charges. A lack of knowledge is one of the strongest defenses against a drug possession charge. An attorney with experience can show that you did not know the drugs were in your possession. For example, the drugs were possibly left behind by someone else, you share a common living space with someone else who may have had the drugs, or a passenger left the drugs in your car without your knowledge.
- Unlawful Search and SeizurePolice are required by the Fourth Amendment of the Constitution to follow certain procedures before searching someone and taking their property. You have a right to privacy from government officials and an illegal search violates those rights. An attorney can check the facts of your case and see if the police followed protocol in conducting their search. If your rights were violated during the search, you can suppress all the evidence seized and have the charges against you dropped.
- Lack of Probable CauseLaw enforcement needs to establish probable cause to affect an arrest. Probable cause is facts or evidence that would make a reasonable person believes that a crime happened, is in progress or will be committed. Probable cause must be based on factual evidence and not mere suspicion. Police officers at times work on suspicion alone or a hunch. If the police fail to establish probable cause in searching or arresting you then all evidence obtained from the arrest can be suppressed, which makes the state’s case against you very weak.
- You Were Denied Your Right To An AttorneyIf you are being arrested for drug possession you have an absolute right to have an attorney present for any questioning. If you requested an attorney and law enforcement ignored your request and you answered questions, your rights have been violated. Any statement that you made after requesting an attorney, especially statements that strengthen the state’s case against you can be suppressed. Once you ask for the assistance of an attorney the police are no longer allowed to question you without your attorney present. You have the right to ask for an attorney at any time after being arrested and if you cannot afford one, you are entitled to a state-paid attorney. This right exists even after your attorney assists you initially and then leaves.
- Insufficient Proof of PossessionThe state is required to prove beyond a reasonable doubt the elements of possession of marijuana. There are two types of possession, both actual and constructive. Actual possession requires that you had the marijuana on your person when the police searched you legally. The alternate is constructive possession where the state usually has a harder time proving. The state needs to show that you were aware of the presence of marijuana and that you exercised dominion and control over it. Legally speaking the state has to prove that you knew the substance was there and that you actually knew what it was. A defense attorney can make it very difficult on the state to prove their case. The best part is that you never have to be a witness against yourself under the 5th Amendment.
Adam H. Rosenblum of The Rosenblum Law Firm is a licensed attorney who frequently helps clients who are charged with drug related crimes in both New York and New Jersey.