Drug-related crimes have been a primary source of criminal prosecution for decades. It is estimated that 65% of those incarcerated in the U.S. are there for drug-related crimes. Drug-crime defense is one of the primary areas with which your criminal attorney should be familiar. Discussed below are just a few of the topics you will want to understand if you have been charged with a drug offense.
Search and seizure
Challenging an illegal search is a primary mode of attack in your drug case. Because drug crimes are largely victimless crimes, police have to be more creative and/or aggressive in their efforts to gather evidence in a drug case. With that creativity often comes search tactics by law enforcement that can be challenged by defense counsel. The “exclusionary rule” provides that, generally speaking, illegally-obtained evidence cannot be used against you in court. You will want to thoroughly explore with your drug lawyer the various search and seizure issues that may apply in your case. Here are a few:
Search warrant defects. The general rule is that your home, person, or vehicle cannot be searched without a warrant. This rule, in theory, protects citizens’ rights against unreasonable search and seizures by the government because a neutral judicial officer must review the warrant application and determine whether “probable cause” exists for issuance of the warrant. Although there are many exceptions to the search warrant requirement (see below), where a warrant is sought and issued your drug lawyer can scrutinize the warrant, both on its face and in the application materials that were submitted for its issuance, and look for defects that could lead to the exclusion from trial of any evidence obtained therefrom.
*Illegal vehicle stops. * Many drug charges result from vehicle stops. Police need reasonable suspicion to stop your vehicle for a brief period of time. “Reasonable suspicion” is a legal term of art and your drug defense attorney can assist you in analyzing whether officers had a sufficient basis for the stop of your vehicle. If not, the evidence they later obtained against you may be attacked.
Over-broad search incident to arrest. Many drug charges result from a search incident to arrest. This is an exception to the warrant requirement. When police have a valid basis to arrest you — for example due to an outstanding warrant or driving on a suspended license — they may perform a limited search incident to arrest. The scope of this search used to be very broad in both space and time but has been limited somewhat by recent U.S. Supreme Court decisions such as Arizona v. Gant. The scope of a search incident to arrest is limited to weapons or evidence of the offense of arrest. It includes the passenger compartment of a vehicle only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the crime. It does not extend to locked or closed containers not believed to contain evidence of the crime. This is an extremely important aspect of your drug case, if it is present, and you will want an experienced defense attorney to sift through the case decisions and properly analyze the search.
Unreasonable length of detention. Even where reasonable suspicion for a brief detention is justified, the detention may become unreasonable if it extends beyond the scope of the original suspicion without further supporting evidence. This can happen where, for instance, an officer becomes suspicious about the presence of drugs during an ordinary vehicle stop and detains you for an unreasonable length of time to subject your vehicle to a canine sniff. In this example, your drug defense attorney could help you by filing a motion about the scope of the detention and obtaining an order throwing out the evidence of drugs ultimately obtained.
Involuntary consent. Many drug cases result from searches that were allegedly consented to by the defendant. True consent, however, must be free of any coercion or influence from officers. Your drug defense attorney can help you analyze whether a “consent search” exceeded constitutional bounds. If so, he may recommend a suppression motion be filed.
Property forfeiture statutes. One particularly onerous aspect of a drug case in Washington is the property forfeiture statutes that can apply if you get convicted of a drug crime. Washington law gives law enforcement broad power to seize and seek forfeiture of property — real and personal — that is connected to criminal drug activity. Vehicles involved in drug transport or sale, for example, can be taken. Money that was earned through drug activity, or was intended for purchase of drugs, can be taken. Even real property — land and homes — can be seized without compensation if they are connected to drug sale or manufacture, or acquired with money earned through such activity.
Law enforcement must give you formal notice within 15 days of seizure that they intend to seek forfeiture. You then have 45 days from the date of notice to file a Notice of Claim — 90 days for real property — identifying the property at issue, indicating an ownership interest, and requesting a hearing. At the hearing, the burden of proof is on the law enforcement agency to prove by a preponderance of the evidence that the property is subject to forfeiture.
You also have 45 days from the date of your Notice of Claim to petition to remove the forfeiture hearing from an administrative hearing and into state court. This can be advantageous for several reasons. Absent removal, the hearing is held in front of the chief law enforcement officer of the seizing agency. Second, when the case is removed to court, court rules — including important rules of evidence — will then apply and assist your drug defense attorney in defending the forfeiture action.
Although forfeiture proceedings are handled in separate courts by separate fact-finders, your drug defense attorney may be able to negotiate a coordinated settlement that will resolve all issues and potentially preserve property that would otherwise be lost. This is something that should be discussed in detail between you and your attorney.
Drug Court — Is It the Right Choice For You?
Many Superior Courts in Washington — including Thurston County — have therapeutic drug court programs. Drug courts provide an alternative model for handling some drug offenses. If your case is referred for drug court, this is something you should talk carefully about with your drug defense attorney.
Drug court participants sign a contract to follow drug-court protocols. They must come to court weekly, participate in treatment, take random UAs, stay employed and pay a modest weekly fee, abstain from the use of drugs, and do other assignments as directed. The contract provides that the participant gives up his right to a formal trial and agrees to be convicted and sentenced if he or she is discharged from the program. But during the pendency of the program, the charge remains pending and, if the participant is successful in completing the program, the case is dismissed. The prosecuting attorney must agree to the referral to drug court.
Drug court is a time-intensive alternative to the formal court system. It requires a commitment to treatment and an ability to stay on task and make all appointments and court dates. If referred, you must first participate in a “suitability exam” to determine if you are an appropriate candidate for drug court. Typically, you must be charged with a non-violent drug offense that primarily involves using drugs, rather than manufacturing or dealing drugs. You must be employed and/or have the means to pay for the costs of the program and related treatment.
If you have a valid defense to your charge, you will need to decide with your drug defense attorney whether or not you want to forfeit the rights as provided in the drug-court contract. It is a good program, but one that is not right for everybody.
Washington law provides an affirmative defense in marijuana possession cases for medical necessity. This law is largely misunderstood by the general public. It does not preclude the State from bringing a possession charge against a defendant. But, if all guidelines of the statutes are followed, it can provide a defense to such charges under state law.
A doctor must provide a signed statement that the medical use of marijuana may benefit a particular patient. The patient must suffer from cancer, HIV, multiple sclerosis, epilepsy or other seizure disorder, a spasticity disorder, intractable pain, glaucoma, Crohn’s disease, Hepatitis C, or a disease that results in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity. A patient who has obtained such a statement may possess no more marijuana than is necessary for his or her personal, medical use, not exceeding the amount necessary for a 60-day supply.
The statement must be issued by a medical practitioner who is licensed to practice in Washington. The documentation must exist before law enforcement questions the defendant’s medical use and possession. The documentation is sufficient if the physician’s statement conveys his or her professional opinion that the potential benefits of marijuana would likely outweigh the health risks for a particular patient. The patient may also designate in writing another person to act as a “designated provider.” A designated provider must be at least 18 years old and can only be the designated provider to one patient at a time. The provider is prohibited from consuming marijuana obtained for the personal medical use of the patient. The designation of a designated provider cannot be made retroactively. The written designation must exist before the provider can possess any marijuana.
A patient or designated provider has an affirmative defense in any prosecution for a violation of state law relating to marijuana. The lawful possession or manufacture or medical marijuana may also not result in the forfeiture or seizure of any property. If the statutory requirements are not satisfied, there is no defense based on medical necessity for the possession or manufacture of marijuana. You can read more about the specific laws in Washington governing medical marijuana by reference to RCW 69.51A et seq.
DOSA — Drug Offender Sentencing Alternative
The Drug Offender Sentencing Alternative is available to you for a wide variety of crimes if it can be shown that there is a connection between your crime and a drug addiction. In order to apply, your standard range must exceed one year. You can receive multiple DOSA sentences, as long as you have not received a DOSA more than once in the 10 preceding years. You will not qualify if you have any prior sex offenses, no matter how old, or any violent offenses within the preceding 10 years. For violations of the Uniform Controlled Substances Act (most drug offenses), the case must involve only a small quantity of the controlled substance.
There are two forms of DOSA sentences: a prison-based alternative and a residential-based alternative. By far the most common DOSA employed is the prison-based alternative. In this form of DOSA, the court sentences the defendant to the greater of 12 months or the midpoint of the standard range. The defendant receives a comprehensive drug abuse assessment during the period of confinement and receive appropriate treatment services. The second half of the sentence is served on community custody with treatment obligations and monitoring by a probation officer.
For a residential-based DOSA sentence, the midpoint of the standard range must be 24 months or less. The court may order a Department of Corrections evaluation under this option with certain specified findings. (For a prison-based DOSA, the same findings are made by a state-certified substance abuse evaluator and submitted to the court.) A sentence pursuant to the residential-based alternative includes a community custody term of two years. The term will be conditioned on you entering and remaining in chemical dependency treatment for a period set by the court between 3 and 6 months. Your compliance will be monitored and the court has the option of terminating the community custody or imposing a term of total confinement equal to half the midpoint of the standard range.
Chemical Dependency Program
The Thurston County Jail runs a Chemical Dependency Program for qualifying defendants who get misdemeanor or felony sentences of 10-12 months. In the program, you serve 10 weeks in custody and obtain intensive substance abuse treatment, 10 weeks in work release while you continue with treatment, and 8 weeks on electronic home monitoring as you transition back into the community. At that point, if successful, your drug defense attorney can petition the court to modify the sentence and suspend the rest of the jail time. The program has received high marks from participants and can be a way to both obtain substance abuse treatment and shorten the amount of actual confinement of a 12-month sentence. Your drug defense attorney will know the details.