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Drug Charges - What You Need to Know

Posted by Anna Chludzinski | Feb 26, 2019 | 0 Comments

The Basics of a 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. They are also one of the most legally complex charges criminal defense attorneys face because they require the litigation of complex constitutional issues involving your individual rights under the 4th, 5th, 6th Amendments.  

First - Were You Actually in "Possession" of a Drug?

The Two Kinds Of Possession 

Normal 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 Your Virginia 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 - Did the Police in my VA Drug Case have The Right To Detain and Search Me?

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

The Fifth Amendment - You Have the Right to Remain Silent so DON'T SPEAK TO THE POLICE!

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.

Miranda Warnings - Not Needed for Arrest to Be Valid! 

Miranda warnings are only relevant in relation to whether statements you made to law enforcement can be used against you in court. If you made no statements to police, then whether you were read your Miranda rights is irrelevant. 

“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 - After You Are Charged You Have The Right to a Lawyer in Court

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. Sixth Amendment, U.S. Constitution.

What Does It Mean If The Police Violated These Rights?

If any of these rights were violated it can result in evidence being thrown out, or in other words, not being able to be used against you.

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.


Virginia Drug Crimes

Basic Defenses of Virginia Drug Crimes

Virginia Drug Possession First Offender Program

About the Author

Anna Chludzinski

Anna Chludzinski has spent the entirety of her legal career as a trial attorney and continues this work as founder of Chludzinski Law, PLLC. Anna has extensive experience in all areas of criminal litigation and family law and is passionate about using that experience to defend her clients.


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