Being convicted of a narcotic possession charge may have devastating consequences. You could face criminal penalties like jail time and hefty fines. You could also face collateral repercussions like difficulty finding employment and social stigma. Consequently, you should cautiously explore your legal options if charged. In certain cases, you might have the judge or prosecution dismiss your narcotic possession charges.

Every case has unique circumstances. These circumstances determine the strategy for tackling the charges. A skilled defense lawyer can review your case and establish whether the prosecution could dismiss or drop the charges.

How You Can Have Your Possession Charges Dismissed

A skilled lawyer can assess your case facts and determine whether there are bases to drop your possession charges. However, that is not always possible. Based on the facts, the attorney can employ various strategies. They include:

  1. Argue Constitutional Rights Violation and Police Misconduct During and After Arrest

Anyone arrested on suspicion of an offense has constitutional rights guaranteed to them. If the police violated those rights, the court could dismiss your charges. Typical instances of constitutional rights violations in drug possession cases include:

Miranda Rights Violation

A constitutional rights violation can happen during a search or arrest in the drug charges context. For example, if the officer never read your Miranda rights. Miranda rights inform you of your rights to legal counsel and to remain silent. If the officer did not read the rights, any statements you make to them during interrogation will be inadmissible in court.

Conducting Arrest When There Is Lack of Probable Cause

Probable cause is the foundation of every criminal charge. Without it, the judge could throw out of court all the evidence the police gathered. The arresting officer must prove they had enough reason to trust you had perpetrated an offense before stopping, arresting, or searching you. Probable cause is an abstract concept. That means the judge will assess the circumstances surrounding the arrest to establish whether sufficient probable cause existed.

In certain cases, the police might believe there was probable cause to arrest someone. However, the court might disagree. Your attorney can probe your possession arrest details to establish whether the prosecution can drop the charges because of a lack of probable cause.

Unlawful Searches and Seizures

The 4th Amendment to the U.S. Constitution safeguards people from unlawful search and seizure. The police cannot search your property or person without a valid warrant. They also cannot seize any of your property without a warrant. Any evidence the police obtained during an unlawful search and seizure would be inadmissible in court.

A lawyer can review your charges to determine whether the police obtained the evidence against you during an unlawful search or seizure. For example, it could be the police targeted you due to racial profiling rather than probable cause. In that case, your lawyer could challenge the search and seizure. The outcome could be the judge throwing out the case against you.

Police Entrapment

Police entrapment is an affirmative defense to possession charges. The burden of proving this defense lies with you, the defendant.

Entrapment occurs when an undercover police officer sets someone up to commit an offense they would otherwise not have perpetrated. The person commits the crime only because the offer induced them to do it.

The United States Department of Justice (DOJ) states that entrapment is a complete defense to criminal charges. That is because the law does not allow government agents to:

  • Originate a criminal design.
  • Put in an innocent party's mind the idea of perpetrating a crime and
  • Induce perpetration of the offense so the government might prosecute the individual.

Your lawyer may successfully have the D.A. drop your possession charges if the police practiced entrapment to arrest you.

Other constitutional violations by the police you could argue are:

  • The officer did not permit you to have a lawyer present during interrogation.
  • The officer did not tell you that the authorities might use whatever you say against you in court.
  • The authorities questioned you without your lawyer despite retaining one.

  1. Pre-Trial Motions

At times, pretrial motions are effective in drug possession charges. Most applicable motions can have a charge dismissed or reduced. The judge rules upon these motions; juries do not generally decide. Two types of motions may apply to your drug possession charges. These are:

Motion to Dismiss

A motion to dismiss is an attempt to have the D.A. dismiss a case or some of its charges. Generally, when the D.A. has insufficient evidence to demonstrate an offense or the alleged facts, it does not constitute a crime. Even if the facts are true, the D.A. must have enough evidence to prove how true they are. If they fail to do so, you will not have committed any crime. Your attorney can then bring a motion requesting that the judge dismiss your charges.

A motion to dismiss also means to ensure the authorities follow legal procedures. It also aims to ensure there is probable or reasonable cause that led to the defendant facing charges. If the judge grants the motion to dismiss, it might result in charge dismissal. That would spare you from a trial. Various grounds to bring a motion to dismiss include the following:

  • Lack of probable cause.
  • Procedural errors.
  • Other legal matters that compromise the integrity of the criminal process.

Motion to Suppress Evidence

This motion seeks to restrict the prosecution from introducing certain information and statements as evidence during trial. If the lawyer succeeds in filing this motion, the judge may exclude plenty of material from your case. This could lead to the weakening of evidence in your case. In turn, the prosecution may be unable to continue the case, making them drop the charges.

So let us say the police illegally searched our car and found some pills. They arrest you, and the D.A. charges you with drug possession. Your lawyer reviews the case and finds the police did not have a justification to search your car. They also find you did not provide consent for the police to search your car. So, your lawyer would bring a motion to suppress the evidence taken from the car contingent on the unlawful search.

The prosecution would respond to this motion. Eventually, it would be upon the D.A. to present witnesses to show the search was legal. Thus, they would generally call the officer who searched. Your lawyer would have the opportunity to cross-examine the officer. The judge would consider evidence from both sides.

Eventually, the judge would render their ruling. If they granted your motion, the D.A. would likely dismiss your case under those circumstances. That is because they would suppress all the evidence the police retrieved from the car. If a judge suppresses evidence, the prosecution cannot use it against the accused. In this case, it is unlikely that the prosecution will have another way to try you. That is one way to try to discredit the prosecution's case and have them dismiss it.

There is another way. Let us say you believe your case will go to trial. However, there is information you do not wish the D.A. to admit into evidence. Your lawyer can bring a motion to exclude that information in that case. Your lawyer could say that information is not permissible. The judge will rule on your motion before the trial. If they granted it, the D.A. would have to exclude it from the rest of the evidence. That could lead to the weakening of the case due to insufficient evidence. When that happens, the D.A. may have no option but to dismiss the charges.

Sometimes, the D.A. will bring a motion to include certain information into evidence or exclude specific defense evidence.

  1. Request To Enter Into Drug Diversion

Another common way to have the court dismiss your possession charges is to enroll in drug diversion. The state's drug diversion program, also called pretrial diversion, is where you agree to finish drug treatment courses after being subject to possession charges. The program allows people accused of low-level narcotics crimes to select drug abuse education and treatment as a jail alternative. Generally, eligibility is saved for first-time drug offenders facing misdemeanor charges.

Most narcotic-possession crimes qualify for the program. After you finish the program, the D.A. will drop your possession charges. You will then not possess any criminal record from those charges. That means the case will not proceed, and there will be no charges or a conviction.

If you do not complete your treatment program, your case will generally continue as though the diversion never happened.

You must meet these conditions to be eligible for drug diversion programs in California:

  • You face charges for drug possession for own use.
  • The court has never found you criminally liable for any other drug offenses ineligible for a diversion program in the last five years.
  • Your drug charges do not entail violence or a threat of violence.

To enter a pretrial diversion program, you must first plead guilty to your possession charges. If you complete the program, the court will then dismiss the charges.

If you believe you qualify for pretrial diversion, talk to a drug crime defense attorney for further advice. The lawyer can assist you in taking the requisite steps to ensure you enroll in a program. This will save you the harsh consequences, like jail and fine, you would have faced if convicted.

  1. Plea Bargaining

Plea bargaining is a negotiation process between the prosecution and the defense lawyer. It aims to reach an agreement on reduced charges or sentences. In this process, the defendant pleads guilty to a lesser charge in exchange for a reduced sentence, or the accused accepts a lenient sentence in return for a guilty plea.

Plea bargaining is a prevalent strategy employed in drug possession cases. It can lead to a reduction of your possession charges or a lenient sentence. In some cases, the prosecution might lower felony narcotics charges to misdemeanors in exchange for a guilty plea. For example, possession for sale is a felony crime. If accused, your lawyer can bargain with the D.A. to lower the charge to simple possession, a misdemeanor. That way, you would face a more lenient sentence than you would have for the original felony.

Although plea bargaining aims towards achieving reduced charges, it can also lead to a charge dismissal. For example, say you face multiple charges like drug possession and driving under the influence of drugs. The prosecution will likely pursue the charge with stronger evidence in this case.

During a plea bargain in the above cases, your lawyer may negotiate with D.A. for various outcomes. They may negotiate that you plead guilty to one charge in exchange for the D.A. dropping the other. That may mean the D.A. will drop possession charges if the DUID charge has compelling evidence against you.

The idea of plea bargaining is so a defendant can achieve a favorable outcome. Do not agree to a plea deal if it is not favorable to you. You can always opt to go to trial and prove your innocence.

  1. Prove Your Innocence At Trial

You can go to trial and let the jury or judge decide your innocence or guilt. The D.A. must prove their case beyond any reasonable doubt. If the court finds you not guilty, it will acquit you and dismiss the charges against you. Taking the case to trial is risky, as you may face severe consequences if convicted. However, it may be ideal if you have a solid defense strategy. Legal defenses you can argue at your trial include: 

It Is a Validly Prescribed Drug

The district attorney could accuse you of possessing prescription drugs if you had one. That is especially true if you lack evidence of a valid prescription. In that case, you can provide the required evidence to have the prosecution drop the charges. It could be you were not carrying the prescription at the time of the arrest; it was in the house. If so, you could retrieve it and show it to the authorities. Once you have done that, the prosecution will have no choice but to drop your charges.

Alternatively, it could be you were picking up a prescription for a friend at the time of the arrest. In this case, you can prove a doctor prescribed the drugs. You can then proceed to prove you had legal permission to have them. Proving these two elements can lead to the prosecution dropping the charges.

Generally, the defense here is showing you possess a legitimate prescription for the narcotic. In that case, the D.A. cannot prove beyond any reasonable doubt that you had drugs illegally. Common prescription narcotics involved in drug possession cases include:

  • Codeine,
  • Xanax,
  • Oxycontin, and
  • Vicodin.

You Did Not Possess the Drug

The judge could only convict you of drug possession if you had the drug. Additionally, the term “possession” has a precise legal definition. Unlawful possession means you have constructive or active possession of narcotics.

To be in actual possession means you have the drug on you. It can also mean you can access the drug immediately. An instance of active possession is the narcotic in your shirt pocket or carrying it in your backpack.

Constructive drug possession means you cannot immediately access the narcotic, but you have control over it. An instance of constructive possession is where you have kept drugs in your garage or closet.

If your lawyer can prove you never had constructive or actual possession of the drug, the judge can dismiss your possession charges.

Lack of Knowledge

California drug laws state that you are guilty of drug possession only if you:

  • Had the controlled substance in your possession and
  • Knew the substance was an illegal narcotic.

That means the D.A. could dismiss your charges if you prove you lacked the required knowledge.

Consider this example: Annie gives Mary a backpack with some pills. She tells her the pills are a form of over-the-counter medication. Later, Mary is strolling in a park carrying the same backpack. A law enforcement officer spots her and ultimately arrests her for possessing drugs. If charged, Mary's lawyer may have the charges dropped. That is because Mary was not aware the pills she had were illegal drugs.

Evidence of Lab or Drug Tests of the Purported Drug

A police officer might arrest you because they found a substance resembling an illegal narcotic. Something resembling a narcotic is inadequate evidence to prove a drug charge. You can request that the D.A. sends the substance to a crime laboratory for analysis. The D.A. will likely dismiss your possession charges if they fail to show what you had was illegal.

Contact a Drug Crimes Defense Attorney Near Me

When charged with drug possession, you want to explore all your options. While you can represent yourself, you want to seek legal help from a skilled drug crimes defense lawyer. A lawyer can evaluate all facts of your case for possible bases for dismissed charges. They can also help you navigate the criminal justice system if a charge dismissal is impossible.

At The LA Criminal Defense Law Firm, our skilled drug possession attorneys are devoted to helping clients fight the charges against them. Our representation starts when the arrest happens and might continue throughout the criminal process. If necessary, we will also appeal your case. To learn more about obtaining a drug possession charge dismissal or other criminal matters, call us today at 310-935-1675. We will provide you with a free consultation and case evaluation.