Category Archives: Criminal Law

The use, possession, and/or cultivation of marijuana for medical purposes is referred to as “medical marijuana.” Medical marijuana is frequently requested as a form of treatment and/or pain relief by people who are terminally ill or suffer from painful or long-term symptoms associated with certain diseases, such as epilepsy, AIDS, glaucoma, and cancer. Medical marijuana is, in general, no different than regular marijuana (or cannabis).

State vs. Federal Law on Medical Marijuana

• Within their borders, a growing number of states have legalized medical cannabis. Marijuana, on the other hand, is classified as a “Schedule I drug” under the federal Controlled Substances Act, which means it:
• There’s a chance it’ll be abused.
• In the United States, there is currently no accepted medical use for it in treatment, and
• Hasn’t been proven to be safe when used under medical supervision.
• As a result, there is a growing debate about the legality of personal medical marijuana use.

On one hand, some politicians and law enforcement officials want to combat illegal marijuana use and control some of the consequences, such as the “wide open sale of marijuana under the guise of medical use.” On the other hand, some health advocates and other drug legalization groups want to legalize marijuana for medical purposes, believing that the drug is an effective treatment for a variety of ailments.

When the Obama Administration took office in 2009, the US government shifted its focus to larger drug-trafficking issues, with the Department of Justice stating that it would not prioritize the enforcement of federal marijuana laws against authorized medical marijuana users or their caregivers. The Department of Justice, on the other hand, resumed its prosecution of medical marijuana providers in 2011, putting pressure on publishers who run ads for dispensaries.

Marijuana Laws for Medical Use

Medical marijuana laws are constantly changing and differ depending on where you live. Marijuana use, cultivation, sale, and possession are all illegal under federal and state law. The federal Supreme Court, for example, has ruled that using, selling, or possessing marijuana, even for medical purposes, is illegal (in the 2005 case of Gonzales v. Raich).

A growing number of states have legalized marijuana for medical (and even recreational) use, removing any criminal penalties imposed on doctors who prescribe it or patients who use it within state law’s limits. When California passed Proposition 215, also known as the Compassionate Use Act, in 1996, it became the first state to legalize medical marijuana. On a doctor’s recommendation, the law allows for the possession and cultivation of marijuana for medical purposes.

State medical marijuana laws usually define the conditions under which the herb can be prescribed, grown, possessed, and used. States may, for example, require written documentation from a person’s doctor stating that the person has a debilitating condition that would benefit from medical marijuana use. States may also require people to present this documentation, also known as a “marijuana ID card,” before being arrested.

Other provisions could include restrictions on the types of illnesses that can be treated with marijuana, such as HIV and AIDS, as well as the amount of marijuana that can be possessed, used, or grown. Finally, some states have additional provisions, such as restrictions on medical marijuana use at work for employees and ID card requirements and fees.

Penalties for Medical Marijuana

Depending on the nature of the offense and the state where the occurrence occurred, penalties for medical marijuana violations may include prison time, fines, or both. The charges are treated as general misdemeanor or felony drug charges in states that have not legalized marijuana for medical purposes.

Although penalties such as prison or fines may still apply in states that have decriminalized medical marijuana, offenses are frequently treated as minor civil infractions.

Punishable circumstances may include, for example:

• Possession of more than a specified amount (in grams);
• The sale of the drug to or from others, particularly a “minor”;
• The cultivation of the drug in jurisdictions where it is prohibited; and
• Marijuana paraphernalia possession

Know Your Legal Rights: Know Your Defenses

Patients arrested on drug charges may use their medical status as a defense, either before or during the trial, to help reduce the severity of the penalties. A patient may also show a doctor’s recommendation for marijuana to reduce penalties and avoid jail time or fines entirely. Finally, due to the clinical nature of his or her health condition, a patient may wish to assert the defense of medical necessity.

It’s crucial to speak with a lawyer who specializes in medical marijuana cases to learn about your rights and responsibilities when it comes to medical marijuana use and/or charges.

From an Attorney, Learn More About Medical Marijuana Laws

Understanding the financial and personal consequences of state and federal marijuana convictions and other criminal sentences is crucial. As a result, if you’ve been charged with a drug crime, your best move is to speak with a criminal defense attorney.

The Controlled Substances Act (CSA) encapsulates the federal government’s comprehensive efforts to regulate the manufacture, possession, dispensing, distribution, and use of specific drugs and other dangerous substances (together, controlled substances). Significant civil and criminal penalties may be imposed on anyone who violates the CSA in an unlawful manner.

The CSA has classified a large number of different products into five schedules. These controlled substances are classified according to their characteristics, which include their medicinal value, potential for abuse, public safety, and likelihood of dependence. By classifying these drugs and substances, it becomes easier to regulate or de-regulate them as necessary.

Who Has the Authority to Reclassify or Declassify a Drug or Substance?

Occasionally, the Attorney General may initiate a proceeding to regulate or transfer a drug from one schedule to another based on a scientific and medical evaluation by the Secretary of Health and Human Services and the aforementioned characteristics.

Additionally, the Attorney General may initiate such a proceeding on the petition of a “interested party,” such as the DEA, the United States Department of Health and Human Services, a drug manufacturer, a public interest group, an individual citizen, or a state or local agency.

What Substances or Drugs Are Included in the CSA Schedules?

The list of different types of drugs and substances covered by the CSA’s five schedules is fairly exhaustive, but they generally fall into a few easily identifiable larger groups. Among the products in this category are the following:

• Heroin, methadone, morphine, opium, and fentanyl are all examples of narcotics.
• Cocaine, amphetamines, and methamphetamines are stimulants.
• GHB, rohypnol, and benzodiazepines are all examples of depressants.
• LSD, peyote, and ecstasy are all hallucinogens.
• Other substances include marijuana, steroid anabolic steroids, and inhalants (basically, household products such as spray paint, felt markers, or anything else that emits chemical vapors and can be inhaled for psychoactive effects).

The schedules are ranked from most dangerous to least dangerous (i.e., lowest medicinal value and greatest potential for abuse) (most medical value and least potential for abuse). More precisely:

Drugs and substances classified as Schedule I have no currently accepted medical use and a high potential for abuse and dependence. They include well-known substances such as heroin, ecstasy, and marijuana.

• Schedule II drugs and substances have a lower abuse potential than Schedule I drugs and substances and some accepted medical uses. They do, however, carry a high risk of psychological or physical dependence. Vicodin, cocaine, and oxycontin are just a few examples.
• On the other hand, while schedule III drugs and substances are still considered dangerous in comparison to schedules IV and V, they have a lower potential for abuse and also have some medically accepted uses.
• They pose a risk of physical or psychological dependence on a moderate to low level. Codeine, anabolic steroids, and testosterone are all Schedule III substances.
• When compared to schedules 1-3 controlled substances, schedule IV drugs and substances are considered to have a low potential for abuse.
• When compared to other drugs and substances, they have a recognized medical use and a low risk of developing dependence. Valium, Ambien, and Xanax are classified as Schedule IV medications.
• When compared to other scheduled drugs and substances, Schedule V drugs and substances have the lowest potential for abuse. They have a recognized medical use and, in comparison to other Scheduled Controlled Substances, a low risk of physical or psychological dependence.
• They contain trace amounts of narcotics. Cough medications are classified as Schedule V.

How is the CSA used to regulate drugs?

The CSA requires manufacturers, distributors, and dispensers of certain controlled substances to register them. The regulations determine whether registration of these products is in the public interest and establish the most stringent safeguards appropriate for the product’s schedule.

Essentially, manufacturers, distributors, and dispensers, as applicable, are required to implement effective safeguards (i.e. labeling, packaging, and record keeping) to prevent the controlled substance from being unlawfully diverted.

Additionally, the CSA makes it illegal to possess a controlled substance with the intent to distribute it or to be in possession of a controlled substance without authorization. It imposes penalties on the seller and the drug user based on the scheduled (i.e. type and quantity) drug or substance.

Additionally, your motivation for possessing the controlled substance will be considered. For instance, whether you intended to sell the drugs or to use them personally can make a difference. In general, personal possession of a controlled substance carries a lighter sentence than possession with the intent to sell. Anyone found in violation of the CSA may face jail time and fines.

Do I Need a Lawyer if I’m Charged with a Controlled Substances Offense?

If you are facing charges under the Controlled Substances Act, you should consult a local drug attorney. A lawyer will explain your rights and assist you in mounting a vigorous defense against the charges.

Historically, someone convicted of possessing one gram of crack faced a 100-fold longer sentence than someone convicted of possessing one gram of powder cocaine. What chemical distinction exists between crack cocaine and powder cocaine that accounts for this discrepancy? There is no significant chemical distinction between crack and powder cocaine; both are forms of cocaine. The stark disparity in federal sentencing laws for possession of two different forms of the same drug is more about media mythology and political pressure than it is about public safety and health. A 2010 federal law addressed some, but not all, of the disparities in sentencing.

How Is Crack Cocaine Defined?

Crack cocaine is made by dissolving powder cocaine (a coca leaf derivative) and baking soda in boiling water and then cutting the resulting paste into small “rocks” after it dries. Typically, the rocks are sold in single doses to smokers. A rock of crack cocaine is less expensive than a comparable “dose” of powder cocaine due to the inexpensive additive (baking soda). However, the two forms of the drug are chemically identical and have the same physical and psychological effects on the user. A person who smokes crack cocaine (as opposed to snorting or injecting powder cocaine) experiences a more intense high more quickly simply because smoke in the lungs affects the brain more rapidly than the other methods of ingestion.

Disparate Sentencing Provisions in the 1986 Anti-Drug Abuse Act

The Anti-Drug Abuse Act of 1986 established a mandatory five-year minimum sentence for possession of five grams (or a few rocks) of crack cocaine. (21 United States Code, Section 841 (2006).) “Mandatory minimum” means precisely what it says: A person convicted of a first offense of possessing five grams of crack must serve a five-year prison sentence. In comparison, the 1986 Act required a coke-snorting user to be caught with 100 times that amount of powder cocaine (500 grams, or more than a pound) to face a similar five-year mandatory minimum sentence. This 100-to-one ratio was not arrived at through a rational analysis of the relative dangers of the two forms of the same drug; rather, during floor debate on the Act, Congress batted around various arbitrary ratios (including 20-to-one) and settled on the 100-to-one ratio. As Representative Dan Lungren (who assisted in the Act’s drafting) put it, “we didn’t really have a legal basis for it.” H6202 (156 Cong.Rec (July 28, 1986).

Under the 1986 Act, an individual caught with a few small bags of crack rocks, even if for personal use, faced the same penalties as a major powder cocaine carrier.

Fair Sentencing Act of 2010

President Obama signed the 2010 Fair Sentencing Act, repealing the five-year mandatory minimum sentence for possession of five grams of crack cocaine and increasing the amount of crack required to trigger mandatory sentencing for federal drug trafficking offenses. (See 21 U.S.C. 841, 844.) The 2010 Act reduced the ratio of crack to powder cocaine from 100 to 18 (for the purpose of imposing the same sentence for possession of each form of the drug). Thus, while the federal law continues to impose a different and harsher sentence for crack cocaine possession than for powder cocaine possession, the disparity is not nearly as great as it was under the 1986 Act.

Consult a Lawyer

Regardless of federal law changes, a charge of crack or powder cocaine is a grave offense. If you are charged with drug possession, you should consult an attorney immediately. Only an experienced criminal defense attorney familiar with state law (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you on the strength of the case against you and the availability of any defenses. And only a local attorney familiar with the prosecutors and judges in your courthouse can provide an accurate assessment of how the case will likely proceed.

An explanation of the ramifications of being charged with cocaine possession or usage, the criminal penalties and punishment that may be imposed, and how a lawyer may be able to assist. Read on to learn more.

Cocaine is a powdered stimulant obtained from the leaves of the coca plant in South America. Possession of any amount of cocaine without a prescription is illegal under federal and state law. Under federal and several state regulations, possessing crack cocaine (a type of cocaine that has been processed even further than powder cocaine to produce a cheaper version) carries harsher penalties. See Drug Possession Laws for further information on state laws governing cocaine possession.

What exactly is cocaine?

Cocaine is on the federal government’s list of narcotic drugs with the potential for abuse and dependency but some medical use (Schedule II drugs). (Section 802 of the United States Code.) The statute (the Controlled Substances Act) is wide enough to include any coca leaf derivative or extract. Under reality, coca leaves are categorized as one of the “narcotic” cocaine narcotics in the legislation.

People eat raw, fresh coca leaves for a mild mood and energy boost in various sections of the Andes Mountains (and also in Peru, Ecuador, and other South American countries). Under US law, leaf eating would be considered illicit cocaine usage and possession.

Cocaine possession

While we are all familiar with the common sense of “possession” (having, owning, or controlling something), the phrase has a legal definition.

Possession that is “simple”

If a person knowingly has cocaine on his or her person (such as in a pocket) or under his or her personal, physical control, he or she is in possession of cocaine illegally (for example, in a purse). Knowingly means that the individual in possession of the cocaine was aware of its presence and was aware that it was prohibited. So, if someone takes a box labeled baking soda and has no reason to believe it contains cocaine, that individual does not knowingly possess cocaine. This is the most basic and evident type of possession.

When it comes to illegal narcotic narcotics like cocaine, however, the concept of possession does not end there.

“Possession with a purpose”

A person can be charged with “constructive possession” of cocaine and other banned narcotics in the United States. When the term “constructive” is used in this context, it refers to something that is suggested, inferred, or construed by the law. As a result, a person is in constructive possession of cocaine if the law considers him or her to have legal control over the drug. This term is far broader than physical control and encompasses a lot of territory. In the most obvious scenario, if a customs inspector discovers cocaine in a person’s suitcase, that person could be prosecuted with constructive possession of narcotics. The finding of cocaine under bushes beside where an individual had parked his vehicle led to a charge of constructive possession against the vehicle owner in a far less clear setting. Individuals have been charged with constructive possession of cocaine in the following locations:

• a person’s home, vehicle, company, or other property that he or she owns or rents
• a hotel room where the person was a guest
• a social group run by a single person
• an individual’s personal storehouse, and
• a package addressed to a specific person

The prosecutor must show that the defendant had the power and intent to control the substance, as well as knowledge that the material was cocaine, in order to convict him or her of constructive possession of cocaine.

When an individual is intimately linked with another person who has cocaine, it is sometimes enough to demonstrate constructive possession by the first person. If a scheme to jointly possess the drug can be demonstrated, an individual could be charged with constructive possession for cocaine found in the pocketbook of a passenger in his or her car, or for cocaine found in the house of another person with whom the defendant was closely linked.

Common Counter-Attacks on Cocaine Possession

There are a number of defenses to simple and constructive cocaine possession. Listed below are a handful of them.

Insufficient knowledge

If the person accused of possessing a box of cocaine that she believes to be baking soda can establish that she honestly and reasonably believed the package did not contain cocaine, she will be acquitted. However, the circumstances surrounding the cocaine’s acquisition will be crucial to this investigation. If a woman gets a box of “baking soda” from a lover she knows is a drug dealer, her story will be less convincing than if she takes the box from a shelf at a friend’s house with the intention of baking bread.

Lack of power and a desire to exert control

The government must show that the defendant intended to control the cocaine even though it wasn’t in his physical possession to prove constructive possession. The offender may be acquitted if he can establish that he had no intent to control the substance.

Penalties for Cocaine Possession

A person convicted of a first offense of cocaine possession under federal law who has no prior federal or state convictions for possession of any narcotic may be sentenced to no more than one year in jail, a fine of no less than $1,000, or both. A person convicted of cocaine possession following a prior conviction of cocaine or any other drug in either federal or state court could face a sentence of 15 days to two years in prison, a fine of not less than $2,500, or both. Two or more prior convictions in federal or state court for possession of any narcotic may result in a term of at least 90 days in jail, a fine of at least $5,000, or both. The length of time spent in prison and the amount of the fine may be influenced by the amount of drugs seized. Possession with the intent to distribute (sell) cocaine carries more harsher penalties.

States may also impose penalties for cocaine possession. Start with Drug Laws and Drug Charges for further information on illicit drug possession, including state-specific articles.

As previously stated, the penalties for possessing crack cocaine may be more severe than those for powder cocaine.

Consult a Lawyer

Possession of cocaine is a criminal offense. If you are being investigated for or charged with a crime, you should seek legal advice as soon as possible. Only an expert criminal defense lawyer familiar with your state’s laws (or, if the case is in federal court, an experienced federal practitioner) can advise you on the strength of the case against you and the availability of any defenses. Only a local attorney who is familiar with the prosecutors and judges in your courthouse can provide you with a realistic evaluation of how the case will likely develop.

If you’ve been charged with drug possession, whether for personal use or with the intent to sell, a criminal defense attorney can help you figure out what defenses you have. Some defenses object to the case’s stated facts, testimony, or evidence. Others focus on procedural flaws. Some defendants use an affirmative defense to fight drug possession accusations, which means they present evidence that proves they were operating legally or that the prosecution doesn’t have a case.

This article examines drug possession defenses, which include everything from uncommon methods to more conventional ones like criticizing the prosecution’s case or using an affirmative defense.

Unauthorized Search and Seizure

The United States Constitution’s Fourth Amendment guarantees citizens protection against the government. Authorities are only allowed to search a person’s body or property under limited circumstances. In drug possession defense cases, search and seizure challenges are widespread.

Illicit substances discovered in plain sight can be seized and used as evidence in a drug case. Drugs or drug paraphernalia on a car’s dashboard as an officer conducts a legal traffic stop are an example of plain visibility. Another example is a marijuana field seen from a plane flying overhead.

Consider the case that a cop, without permission, prys open a car’s trunk and discovers drugs. A low-flying drone, for example, may be flown over a certain place and photographed a hidden marijuana field. Without a search warrant, here are a few examples of searches that would be illegal.

If authorities get evidence through illegal means, the evidence will be excluded from the trial. Because evidence discovered during an illegal search is generally crucial to the prosecution’s case, if officers violated your Fourth Amendment rights, the government will frequently withdraw its case.

Someone else owns the drugs.

Criminal defendants accused of drug possession frequently claim that the narcotics do not belong to them or that they were unaware that they were in possession of the drugs. However, this may not be as compelling an argument as you may believe.

To be convicted of drug possession, police do not need to detect drugs on your person or directly in your possession. Prosecutors typically only need to establish that you had control of or access to the drugs.

A defense attorney may argue at trial that there is a reasonable doubt that you were aware of the drugs. This can be difficult, though, if a passenger in your automobile, for example, was taking drugs soon before or during your arrest. That is why you should always consult with a criminal defense attorney before making any accusations or arguments to the police.

Analysis by a Crime Lab

Not all ostensibly credible evidence is what it appears to be. Just because something appears to be cocaine or LSD does not mean it is. By sending evidence to a crime lab for analysis, the prosecution must show that a confiscated substance is truly the prohibited narcotic it claims to be. A criminal defense lawyer can bring up flaws with the crime lab analysis report, such as inaccuracies or contradictions. The defense might demand that the crime lab analyst testify at trial if there are any difficulties.

Problems with the Chain of Custody

Another defense to drug possession is that the drugs have gone missing. Police commonly store narcotics confiscated during an arrest or during the execution of a search warrant in an evidence room or locker. A defense attorney can question whether the medications provided as evidence were actually taken from the defendant during the trial (and not from a different case).

This is commonly referred to as a chain-of-custody assault. Other chain of custody challenges include allegations that one of the policemen handling the medications during an investigation did so inappropriately. The success of such a strategy is determined by the number of officers who handled the drugs and how successfully the police created and maintained records of such activities.

Entrapment

While cops and informants are free to set up sting operations, entrapment happens when officers or informants persuade a suspect to commit a crime that he or she would not have committed otherwise. It is not always entrapment when an undercover officer obtains narcotics from or sells drugs to a suspect.

Entrapment may be a defense if officials go so far as to harass or scare someone into committing a drug offence. A drug crime defense lawyer will be able to assist you with this intricate legal problem.

Exception for Medical Marijuana

The use of marijuana for medical purposes is never a defense for federal drug possession charges, but it may be in states where medical marijuana is authorized. Typically, states that allow such exceptions to marijuana laws require a signed doctor’s recommendation. However, several of those states also allow persons arrested for marijuana possession to assert an affirmative defense if they can provide clear and persuasive proof of medical necessity.

Do you need assistance with drug possession defenses? Make an appointment with an attorney.

If you’ve been charged with drug possession, you may have defenses that aren’t immediately evident. There are additional other defenses that may apply to your case that aren’t mentioned here. For example, if you have more than a specific amount of a narcotic in your possession, the law presumes you’re selling it. You can, however, claim that the drugs are for personal use, which could result in reduced fines and the possibility of drug treatment as part of your sentence rather than more time in prison. Other possible defenses include saying you were forced to testify or that you were threatened by others.

A criminal defense lawyer can frequently expose flaws in the prosecutor’s case. It’s in your best benefit to call an experienced, local criminal defense attorney as soon as possible if you’re dealing with a criminal case.