How does the prosecutor decide which drug cases to pursue?

The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant’s constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office’s policy objectives, or whether a more informal disposition, like drug counseling or treatment, may be in order.

In reality, if you are charged with a drug case, you will likely be indicted and the case will proceed. If there was an unlawful stop or search, I will prepare and argue a Motion to Suppress Evidence to attempt to get the evidence thrown out.

Even a teeny tiny amount of dope (imagine 1/10 of a Sweet-N-Low packet) will result in a felony charge.

Someone has been arrested, what should we do?

There are normally two things to consider in the crucial moments which follow an arrest. The first is securing the person’s release from jail as soon as possible. There are a variety of ways this may be accomplished. Which particular procedure is best depends on the facts of each case. But in most cases hiring a respected bondsman is paramount. If an attorney posts the bond, you are required by law to remain with that attorney. IN other words, you cannot hire a new attorney in the future without forfeiting the bond you have already paid.

The second concern is to preserve and develop the arrested person’s ability to defend against the accusations. It is best for the accused to refrain from making statements to anyone concerning the case until he or she has been fully able to consult with an attorney.

In almost EVERY SITUATION, it is best to remain silent. This is YOUR RIGHT. Exercise it!

Five Rules of Survival in the Criminal Justice Jungle

Rule No. 1: Never under any circumstance consent to a search. NEVER. Do not consent to a search of your car. Don not consent to a search of your home. Do not consent ot a search of your friend’s apartment. Do not consent to a search of your person. Do not consent even if the police tell you they have a warrant. Do not consent. EVER.

Rule No. 2: Never physically resist a police officer. Physical resistance is always illegal (unless the police are using excessive force against you, then you may offer “reasonable force” in self defense.) Remember: You SAY “I do not consent” – you DO nothing to resist.

Rule No. 3: When you are a suspect in a criminal case, NEVER give any statements to the police, and never sign anything. Do not give written statements to the police. Do not give verbal statements to the police. Do not talk to them at all, except to say “My lawyer has told me not to answer any questions.” When they ask you a question, you ask to see your attorney. The sole exception: You must provide the police with your legal name, date of birth, and address for identification purposes. It is illegal for you to fail to do so upon request.

Rule No. 4: If you have been drinking alcoholic beverages, avoid the police if at all possible. If a police officer smells alcohol on your breath, you are very likely to be arrested for DWI (if you are driving) or public intoxication (if you are not driving). If you must have contact with a police officer when you have been drinking, try to keep the contact as short as possible and try not to let the officer smell your breath. Never under any circumstances argue with a police officer if you have been drinking. That’s a guaranteed trip to jail.

Rule No. 5: Do not be an ass to police officers. Be polite. Police have far too much power in the streets for you and I to smart off to them. The streets are their “home field”. If you need to say something derogatory about the police, wait until we get them into the courthouse – that’s our “home court”.

Can a defendant plea bargin in a drug case?

Plea bargaining, which involves negotiating with the prosecutor to get the charges reduced and the punishment minimized, is allowed in drug-offense cases. For example, a person charged with three separate drug charges-possession, possession for sale, and transportation of drugs-may be able to negotiate the charge down to simple possession in exchange for an agreement to plead guilty to that charge. The prosecutor agrees to plea bargains in appropriate cases because the government simply does not have adequate resources to try every case, so both sides benefit from the bargain.

A plea bargain may involve probation or pen time. While avoiding prison is the goal of all criminal defense when the charges are very serious, I may be able to negotiate a plea bargain for the minimum jail sentence. For some clients, jail is preferable than up to 10 years on probation.

Drug treatment may be a condition of probation. Be prepared to consider residential treatment if you are accused of multiple dope cases.

Can a defendant be acquitted if he or she was on drugs when the crime was committed?

Defendants who commit crimes under the influence of drugs sometimes argue that their mental functioning was so impaired that they should not be held accountable for their conduct. Generally, however, voluntary impairment does not excuse criminal conduct, since people know or should know that drugs affect mental functioning, and they should therefore be held legally responsible if they commit crimes as a result of their voluntary use. An exception to this rule may exist in cases involving a crime that requires “specific intent,” in which the offender must have intended the precise result that occurred but arguably could not have formed that intent in his or her drugged state.

What is the difference between parole and probation?

Parole and probation are employed in the punishment phase of the criminal justice process. Parole comes into play after a person has been imprisoned and is released subject to supervision by an officer of the court. Probation, by contrast, refers to a criminal sentence separate and distinct from incarceration. Probation is the most frequent sentence imposed for less serious or first offenses and typically involves releasing the convicted offender into the community subject to a list of terms and conditions. Both parole and probation may include additional conditions, like attending drug education classes or receiving drug treatment.

Are children charged with committing drug-related crimes prosecuted in the same manner as adults?

Children are subject to a separate judicial system called the juvenile court system. Generally, the focus of the juvenile court system is more on rehabilitation than on punishment. In some cases, however, older juveniles who commit more serious crimes will be charged as adults and tried in the regular criminal courts. In such cases, their sentence, too, will be more in accord with adult punishment, whereas in juvenile court any incarceration is usually in a more rehabilitative setting and generally ends when the juvenile attains the age of majority.

Do I need a lawyer to represent me even I am innocent?

Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected and that the truth prevails. Even innocent people end up in jail, so the best way to prevent that miscarriage of justice is to employ the services of a seasoned veteran of criminal defense law, particularly one with experience defending against drug charges.

If I simply intend to plead guilty, why do I need a lawyer?

Even if you are guilty of the drug crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.

Federal and juvenile referrals to trusted peers available on request. I can introduce you to an attorney who handles federal or juvenile dope cases and even stay on as a consultant if you prefer

What should I do if I am stopped and arrested for a DWI?

There is no uniform answer as to what is best to do, because every situation is different. The best guide is to use good common sense. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You will be able to deal with such an encounter more easily if you know what to expect, what choices you will have, and understand the potential consequences of your decisions.

If you are detained under suspicion of DWI, you will be questioned on the roadside about your recent alcohol consumption. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt. If the law enforcement officer has reason to believe that you are guilty of an offense, he or she can arrest you. Typically, you will be handcuffed and transported to a jail.

At the jail, you will probably be asked to submit to a breath test. If you refuse to submit to a breath test, you should expect local police to videotape your performance of a series of sobriety tests and your responses to questions about your driving, alcohol consumption, and physical condition. Normally, a videotape will not be made if you choose to submit to a breath test.

Although you must answer questions pertaining to identification, you may refuse to answer any other questions. You may refuse to perform field sobriety tests, and, unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing. (The officer may obtain a warrant to forcibly obtain a sample of your blood but this can take up to 2 hours.)

The reliability of the instruments used to measure breath specimens to determine body alcohol concentration is doubtful. While state-paid experts routinely testify that the Intoxilizer 5000 is accurate and reliable, several independent experts have expressed contrary opinions. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, do not submit to it before you consult with an attorney.

If you submit to a breath test and ”pass” it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that a trial in which a breath test is challenged, tends to be much more expensive than one which does not involve a breath test because it is often necessary to hire private scientific experts to assist at trial.

You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests or answer any questions asked of you other than those about your name, age and identification. If you believe that you can preserve evidence favorable to your case by complying with the officer?s requests, you should do so. If you have any doubts, you should request to speak with an attorney before answering any questions. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first.

Is it possible to defend a charge of drunk driving, boating or flying?

Absolutely! Remember, the burden of proof is on the State to prove you guilty. Many juries have a natural empathy for defendants accused of DWI. The jurors may think, “There but for the grace of God go I.” Even with a breath or blood test above the legal limit, many DWI trials result in acquittals.

Probation for DWI results in mandatory classes, steep fines, monthly meetings with a probation officer and surcharges against your driver’s license. The penalty DPS imposes is $1,000.00/year for three years to maintain your driver’s license.

If you proceed to trial and we win, none of these punishments will be imposed on you!


10.0Katheryn H. Haywood
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