As a former prosecutor in Michigan and New York City, my colleagues viewed drug cases within different categories. It’s one thing if the person charged is simply a drug addict who possesses the drugs for personal use. There are many programs within the prosecutor’s office and the local courts to get this person the help they need to get off the drug and back to a normal and productive life. There is also a door open to work toward resolution to avoid jail and potentially a criminal record. Most prosecutors and judges are willing to give this type of a person a second chance in life if they are willing to earn the result. Programs that depend on your age, but also a program that doesn’t have any age requirement to receive the possibility of a dismissal upon successful completion of probation.
It’s another thing if this person is possessing the drugs, and there are indicators that they may be selling the drugs to the public. This opens up the door for additional charges, and there is less tolerance and patience for someone who is contributing to the drug epidemic. These type of offenses are typically not eligible for first offender type programs, and jail is more likely for a case of this nature.
As a defense attorney, the great majority of my felony drug possession cases have been the first type of person. Someone who possesses the drugs for personal use. Occasionally the client is a teenager or young adult who may be possessing the drugs to both consume and share with friends. Although this trickles a bit into that more serious category, there is some understanding/tolerance if the client is on the younger end of the spectrum, and can take the case as a valuable life lesson and earn an exceptional outcome, rather than be branded a felon for the rest of their life for a poor choice as a young adult.
Let’s assume I am working with a 20 year old college student. The client is doing well in school, has no prior criminal history, but the police arrest the client for possessing heroin, cocaine or another felony level substance. First off, there is no legal reason to possess this type of drug; this is no medical purpose like there is for medical marijuana in Michigan. Assuming any stop and search was done within the law, my client is caught red handed. As long as the substance comes back as a felony controlled substance, there isn’t much wiggle room.
If the substance is a prescription drug like Alprazolam, Xanax, opiates or another common drug, and my client does not have a valid prescription, they don’t have a defense to possessing the drug. If the client had a prior prescription and can show that, it may provide us a bit of context into the current possession, but it’s not a true defense. Pills in Michigan are referred to as analogues under the law.
My client and I have to acknowledge the perception of our audience, and begin to change the perception of the case. The most important thing to do is to STOP using the substance and SHOW YOUR WORK. That means we begin proactive drug testing right away. Felony drug cases are not charged immediately, because the substance must be tested at a lab; this could take weeks or months. The worst thing to do is just let time go by without SHOWING YOUR WORK. It’s a nice first line to inform the arraigning judge down the road that your client has been voluntarily testing and passed all tests since this incident.
Next, we need to consider why the client was in possession of the substance. Are we dealing with a true addiction where we need intensive treatment, or is this a client trying to be cool among his/her friends and using it for recreational purposes. If it’s the second, we might want to focus more on the positive life adjustments and working on appreciating risk and decision making in their young minds.
The key is to identify WHY the client was in possession and do our best to eliminate the reason for possessing it so it doesn’t happen again going forward. Addicts need treatment, risk takers need to increase their insight and awareness about making better long-term choices in life, and reflect back upon their decisions and how they fit into the context of the long term viability as productive members of society.
As a defense attorney, if I can show a prosecutor and judge that my client has not used the substance over a period of time since the incident, and we’ve identified the WHY for possession and we’re working on a solution, there is a greater chance that doors will open for a favorable resolution for my client.