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Defenses to a Virginia Drug Charge

The Basics of a Virginia Drug Case

If you have been charged with a drug offense you are not alone, they are one of the most common criminal charges judges see come in and out of their courtroom. That being said they are also one of the most legally complex charges criminal defense attorneys face. The reason for this is that drug cases require the analysis of complex constitutional issues regarding your individual rights under the 4th, 5th, 6th Amendments.  For this reason, it is extremely important to hire a criminal defense attorney with extensive experience litigating these issues.

Analyze The Elements 

Every drug case first requires an analysis of the elements of the offense itself. Meaning determining if they can they prove that (1) you, (2) were in possession, (3) of an illegal substance, and in a possession with intent to distribute cases they most also prove (4) that you either distributed it or that you possessed that drug with the intent to distribute it.

The Two Kinds Of Possession 

The Most Most Litigated Element in Drug Cases

Straight Possession

Possession can be proven in one of two ways. The first, is straight possession. For example if you are holding a pen or cell phone in your hand right now then you are clearly possessing it. That is the easiest to prove and the most difficult to challenge.

Constructive Possession 

The second form of possession is called constructive possession. Constructive possession is probably the most common and definitely the most litigated as it is harder to prove. The best example of constructive possession is a bag of drugs found in your car. In order to prove that you were constructively possessing them they must be able to prove that:

  • You knew of the presence of those drugs – so you knew that they were there.

  • That you knew of the nature and character of them – that you knew that they were in fact drugs; and

    • This is often the most difficult element to prove, and is almost always proven through your statements – which is why it is so important for you to invoke your right to remain silent.

  • That you were exerting dominion and control over those drugs through your dominion and control of the space they were found in – that you were in control of those drugs through your dominion and control of the vehicle.   

How The Constitution Effects You and Your Drug Case

Next comes the far more complex legal issues – an analysis of the constitutional issues involved in your case. Most drug cases include a seizure where they grab your person or property, a search of that person or property, followed by questions designed to get you to incriminate yourself. Accordingly, the 4th 5th and 6th amendments play a large role in drug cases.

The Fourth Amendment

The 4th Amendment to the US Constitution protects you from being illegally seized and searched by law enforcement:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment, U.S. Constitution. 

The Fifth Amendment

The 5th Amendment to the US Constitution Protects your right to remain silent, your right to have an attorney present when police have you in custody and want to question you, and your right to due process. This is where the Miranda warnings you see on Law & Order derive from.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Fifth Amendment, U.S. Constitution.

Miranda Warnings

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” Miranda Warning, Derived from the 5th Amendment. 

The Sixth Amendment

The 6th Amendment protects your right to have an attorney during all stages of a criminal case, your right to a trial including a jury trial, your right to confront and question witnesses against you in a trial, and your right to subpoena people to come to court and testify for you.

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." Sixth Amendment, U.S. Constitution.

What Does It Mean If The Police Violated These Rights?

If you are charged with a drug offense the ways in which these rights effect your case are extremely important. If any of these rights were violated it can result in evidence becoming inadmissible – being thrown out, not being able to be used against you. It can also result in statements you made to the police, statements often needed by the prosecution to convict you, being thrown out.  

Often a violation of these rights if proven can result in dismissal of the charges against you. However, it is important to note that these issues are extremely complicated, and it is important to have an attorney experienced in analyzing these issues to advise you.



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