"If the zeal to eliminate drugs leads this state and nation to forsake its ancient heritage of constitutional liberty, then we will have suffered a far greater injury than drugs ever inflict upon us. Drugs injure some of us. The loss of liberty injures us all." -Cresswell v. State of Florida, 524 So.2d 685.
It has been said that the War on Drugs is a war on the Bill of Rights and this is evidenced by the the fervor and zeal at which our government has pursued this war which has ultimately been a war on the rights of all of us. Because drug users typically aim to keep their behaviors secret, the aggressive law enforcement schemes to go after them must necessarily penetrate the private lives of millions. Moreover, the expansion of police powers has been perhaps no greater than in this realm with law enforcement now having very few limits on their tactics. In addition, property may be seized on slight evidence and forfeited to the state or federal government without proof of the personal guilt of the owner.
Given the high rates of drug availability and usage in our country, coupled with the ever-increasing aggressiveness of law enforcement aimed going after drug offenders, drug charges are of the most common and of the most serious one can face. Drug accusations carry the very real potential for extremely long sentences, harsh collateral consequences and civil penalties that may be assessed under property forfeiture provisions. A drug charge can ruin a person's life which is why we aggressively defend drug cases using many different strategies.
In general, there are three ways that drug charges are successfully defended: 1) the drugs seized were not actually a controlled substance; 2) the person did not actually "possess" the drugs; 3) the drugs were seized in violation of the person's constitutional rights.
Search and Seizure
Perhaps more so than any other type of charge, we find that our clients charged with drug offenses have often had their constitutional rights violated in large part due to the overzealousness of law enforcement tactics used in drug cases. One of the first steps we take in representing our clients accused of a drug charge is to analyze the legality of how the evidence was obtained. Evidence that is illegally obtained, whether that be for lack of probable cause or an illegal search and seizure, cannot be used against you. The Fourth Amendment provides protection against unreasonable searches and seizures and a violation of that can lead to a ruling by the court that illegally seized evidence is suppressed and inadmissible which most often leads to the dismissal of charges. We have successfully litigated constitutional violations on behalf of our clients which has lead to the dismissal of charges.
One way we have successfully challenged a client's accusation of possession of drugs is to make the case that there were no "affirmative links" to our client and the drugs. In Texas "possession" is defined by statute H&SC Section 481.002 (38) as: "Possession" means actual care, custody, control or management. Therefore, in order to convict someone for possession of a controlled substance, the person must have exercised care, custody and control over the substance. The courts in Texas has found many different situations to establish the "affirmative link" between a person and the drugs including:
(1) The persons's presence when the search warrant executed;
(2) Contraband in plain view;
(3) The person's proximity to and the accessibility of the narcotic;
(4) Whether the person was under the influence of narcotics when arrested;
(5) Whether the person was in possession of other contraband when arrested;
(6) The person's attempted flight;
(7) The person's incriminating statements when arrested;
(8) The person's furtive gestures;
(9) Presence of odor of the contraband;
(10) Presence of other contraband or drug paraphernalia, not included in the charge;
(11) The person's ownership or right to possession of the place where the controlled
substance was found; and
(12) Place the drugs found was enclosed
Drug Treatment and Diversion Programs
Many of our clients have a serious substance abuse issue that needs immediate attention and intervention first and foremost. Working in collaboration with our social work team, we have successfully helped our clients turn their lives around by assessing and referring them early on in their cases. Often, if we can show the prosecutor that we have helped our clients' address the underlying substance abuse issue that caused them to enter the criminal justice system, we can convince them to dismiss or defer prosecution on their cases. In doing so, we have found that many times treating a substance abuse issue as a health issue rather than a criminal justice issue, helps us solve two problems with one solution - treatment.