Sep 03, 2019 Drug case defense addressed by Fairfax criminal lawyer
Drug case defense calls for a full court press, says Fairfax criminal lawyer
Drug cases (marijuana and non-marijuana) are among the most common non-traffic / non-DUI prosecutions on Virginia criminal court dockets. As a Fairfax criminal lawyer, I have defended hundreds of such cases, and provide some insights herein on such defense.
Some approaches for defending against Virginia drug prosecutions
Prosecutors often will pursue convictions for everyone found near marijuana and controlled substances (collectively drugs). Key defenses against prosecutions for possessing, selling, distributing, cultivating, and manufacturing drugs include moving to suppress the allegedly discovered contraband, moving to suppress the criminal defendant’s statements to the police, challenging the field and chemist lab testing of the alleged illegal substances, and challenging whether the defendant had knowledge, dominion and control over the alleged contraband in the first place.
Obtaining records subpoenas in Virginia controlled substance prosecutions
Once the certificate of drug analysis is received, the criminal defense lawyer now is ready to submit for court issuance and service, a subpoena duces tecum / records subpoena to obtain the notes and other relevant records of the Virginia DFS chemist who tested the alleged drugs. Those records should be thoroughly reviewed for any possible irregularities or other defenses, with or without the advice of a private chemist.
Challenging chemical test results
A drug conviction cannot be obtained without the prosecutor’s proving beyond a reasonable doubt that the alleged substance is in fact an unlawful or controlled substance that is not lawfully possessed by prescription or otherwise. Sometimes the criminal charging document lists a substance other than what the prosecutor can prove the substance to be, or does not correctly state the name of the drug as listed in the Virginia Code.
The absence of a DFS drug chemist at trial prevents the prosecutor from proving the non-marijuana substance is an illegal substance, unless the prosecutor has provided notice of intent to introduce the certificate of analysis without chemist testimony, whereby a correctly and timely-filed objection to said notice nixes the prosecutor’s ability to present the certificate of analysis without the chemist’s testimony). Virginia law provides for procedures to try to prove the substance is marijuana without needing a chemist’s testimony, but marijuana identification testimony can be attacked, as addressed here.
Challenging whether drugs were for personal use rather than for distribution
When a defendant is accused of dealing drugs, sometimes the best defense ends up being a challenge to whether the substances were only for personal use, rather than arguing for a straight-out acquittal, seeing that a distribution conviction risks heavier sentencing and more adverse reflection on one’s reputation than a possession conviction.
Possible arguments that the drug possession was only for personal use might include self medication, buying large quantities of the right quality drugs at the right price, and the absence of indicia of intent to distribute (for instance the absence of sales records, absence of large quantities of drugs and packaging material, and the presence of paraphernalia for personal use).
Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, DUI, drug and marijuana prosecutions. For a free confidential in-person consultation with Jon Katz about your pending criminal court case, please call his staff at 703-383-1100.