One of the most important facets of defending against a drug charge is working with your attorney.
A. Tell Your Attorney About Your Drug Use
The attorney should ask about your drug use or lack thereof. If you don’t and have never used drugs, a hair follicle drug test may be enough to convince the prosecution to drop the case. It may cause the prosecution to think “if this person doesn’t use, then the drugs found in the car probably were not theirs.”
If you are a drug user, however, treatment or intervention in lieu of conviction (TILC) might be an option. In that scenario, you plead guilty to the charge but you are not found guilty of the charge. When you complete treatment, the charge is dismissed. TILC should not be where your attorney starts the conversation, but you should be made aware that TILC may be an option for you.
If you have a great defense to the charge, if you don’t feel you have a drug problem, or if you know yourself well enough that you feel you will not be able to complete treatment, then TILC is probably not a good option.
B. Tell Your Attorney the Facts of Your Case – Details Could Make or Break a Case
Your attorney should be asking you what happened on the day in question? Where were you? Who were you with? Who did you speak with on the phone or via text? The answer to these questions is important in your case, whether you realize it or not.
For example, if you are charged with possession and there were multiple people in the car in which you were stopped, then proving that you possessed those drugs may be more difficult for the prosecution. Similarly, if you are charged with trafficking and you had several calls and texts with your supplier on the day you were arrested, then your attorney should know that too. It may not help your case, but it helps your attorney give you an accurate assessment of your case.
The last thing you want is to withhold information from your attorney, and have your attorney tell you that you have a great case only to find out later that your case is severely undercut because you spent three hours on the phone with Pablo Escobar on the day you were arrested. If your attorney knew that up front, the two of you could have discussed how that would impact your case from the outset, what the substance of the three-hour phone conversation was, and what are some realistic expectations.
If you actually were drug trafficking and you acknowledge that with your attorney, then he/she should ask how long you have been involved in trafficking. This could lead to a wealth of information about potential witnesses.
C. Tell Your Attorney About the Location Where You Were Arrested
Your attorney should ask questions about the physical layout of the arrest location. If your case is going to trial, your attorney should visit the arrest location if at all possible. By knowing the location, it allows your attorney to put himself/herself into your shoes and potentially locate witnesses or recording devices that may have been in the area at the time of arrest. This may also cast doubt as to what the police are claiming they saw or heard. For example, if you were arrested in a crowded, noisy, night club and charged with possession of ecstasy, then it is unlikely that the police overheard a conversation that they claim you had.
D. The Importance of the Motion to Suppress Evidence
Often, possession and trafficking cases are made or broken at a motion to suppress evidence hearing. In that hearing, your attorney would be trying to suppress (meaning cannot be used against you at trial) any evidence that was obtained illegally.
The attorney needs to cover potential suppression issues because the result of the case at trial generally hinges on the introduction of just a few pieces of evidence. If one or more of those key pieces can be excluded, then the likelihood of success at trial goes up. Additionally, if there are legitimate suppression issues, that can enable your attorney to leverage a far better plea than might otherwise have been possible.
E. Tell Your Attorney About Your Prior Record, Open Cases, and Probation
Your attorney should be asking about your prior record, if you have any other open cases, or if are on probation. Your prior record is a key factor in determining whether it is a good or bad idea for you to testify at trial.
Your prior record is also a consideration in plea negotiations. If your attorney presents you, in plea negotiations, as having no record when in fact you do have one, then he/she looks underprepared in the eyes of the prosecution. If the prosecution thinks that your attorney is not prepared, then he/she will be less likely to offer a favorable plea. After all, why would they offer a favorable plea when they suspect that they will prevail at trial against an unprepared defense attorney?
Also, having open cases or being on probation for other cases is important for your attorney to know. Knowing about those other cases prevents confusion as far as fees, and would potentially allow your attorney to secure a global resolution of all the cases.
F. Tell Your Attorney Your Citizenship Status
If you are not a United States citizen, your attorney needs to know that. Drug possession and/or trafficking convictions often fit into a class of offenses known federally as “crimes involving moral turpitude.” If you are not a U.S. citizen, the offenses could potentially get you deported, excluded from naturalization, and/or excluded from admission into the United States. However, your attorney cannot properly advise you of potential choices in the case if he/she does not know your immigration status.
G. Talk with Your Attorney About Conspiracy and Racketeering
In drug trafficking cases, the terms conspiracy and racketeering come up from time to time. Those concepts were covered in more depth in previous chapters. Your attorney should be asking questions that go to the elements of criminal conspiracy and racketeering.
The prosecution may threaten to file conspiracy or racketeering charges or to “take the case federal” if you don’t plead guilty. This may be a completely empty or nearly empty threat, but your attorney cannot assess the truthfulness of the threat without having some knowledge about the possibility of those heavier charges and/or the likelihood of the prosecution’s success in prosecuting those heavier charges.
H. Discuss the Concept of Possession with Your Attorney
Your attorney should be explaining that merely being present when drugs are found is not the same as possession of drugs or drug trafficking. Rather, the prosecution must prove that you “had control over” drugs in a possession case, and they must prove that you “sold, offered to sell, or prepared for sale, distribution etc.” drugs in a trafficking case.
As you can see, mere presence in proximity is likely not enough. We say likely because there is an inference that can be drawn that you had control over the drugs, but generally more proof would be required.
I. Tell Your Attorney if You Think Entrapment is a Possible Defense
Your attorney should ask about potential entrapment issues. Entrapment is a word that is highly misconstrued by the general public. In its simplest form, as we discussed previously, entrapment means that you had no inclination to perform some act until the police or government put that idea in your mind.
For example, you are walking down the street and a guy says, “can you hold this box for me” and you say, “sure.” Then it turns out the guy was a plain clothes police officer, and the box contained drugs. Aside from not knowing that there were drugs in the box, you had no inclination to hold the box until the police asked you to. That is an extreme example of entrapment. The ins and outs of your case are likely more subtle, but your attorney should be discussing them with you.
J. One Attorney Meeting Will Not Be Enough to Prep for Trial
Your attorney may want to have subsequent meetings with you as the case unfolds. For example, as discovery (the evidence that the prosecution intends to use against you at trial) is provided, your attorney will probably want to discuss that with you. In fact, you would likely be able to help your attorney decipher exactly what he/she is looking at as far as photographs, phone numbers, recordings etc. It is your attorney’s job to know the law, but he/she does not know everything you know as far as the facts. So, helping him/her decipher those facts is critically important.
K. Talk to Your Attorney About What the Prosecution Needs to Prove in Your Case
Finally, your attorney should be explaining the elements (what the prosecution must prove for a guilty verdict) of each charge that you are facing. He/she should also be telling you the level of offense and potential penalties of each offense. Often it is at this time where your attorney will explain how the facts as he/she knows them lend themselves to attack of one or more particular elements of the offense.
Take Advantage of Your Attorney’s Expertise, and Help Your Attorney Make the Best Case Possible
If you make sure that you have discussions with your attorney on all of the topics above, you will greatly increase your chances for success at trial. There is something called “attorney-client” privilege. That means that anything about your case that you discuss with your attorney stays secret. Use that as an opportunity to have an open dialogue and provide as much information as possible so your attorney can effectively defend you in court.
Are you or someone you know facing drug charges in Cincinnati, OH?
If you are facing drug charges, you need to speak with an experienced drug crimes attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms. Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation.