Missing link victory needs more than mere imprecision in describing chain of custody in drug prosecutions

Missing link arguments can be made in a drug possession or drug trafficking prosecution to allege that the substance tested by a Virginia state chemist cannot be sufficiently proven to be the same substance that was originally seized by law enforcement. As a Fairfax criminal lawyer, I know that judges are less likely to provide relief on chain of custody arguments other than when the criminal defense successfully argues contamination or tampering of alleged drug evidence, not maintaining a complete seal on the drug evidence bag between the time of packaging and arrival in the hands of the testing state chemist, and switching of evidence bags. That is underlined by the Virginia Court of Appeals’s unpublished case of Walters v. Commonwealth, Record No. 0840-23-3 (Va. App. Nov. 6, 2024) (unpublished). With a felony defendant’s liberty on the line, a drug chain of custody report in Walters omitted the name of one of the people who had possession of the bag of an alleged controlled substance after its packaging, and the police Request for Laboratory Examination described a “large square piece of suspected Suboxone” where the chemist found that the evidence bag contained “two ‘orange films,’ an off-white crystalline substance, four black, white, and yellow films, and the medical cream jar” where methamphetamine (not Suboxone) was the only illegal substance found by the drug chemist.

Convince your judge and jury of a missing link in challenging your Virginia drug prosecution

A key in Walters is that your trial judge has wide discretion in finding evidence of a missing link or not in chain of custody for alleged drugs or any other alleged contraband. In Walters, the alleged methamphetamine was found by a search of the jail cell of Walters and his cellmate. When a jail guard found a cream jar that instead contained non-cream material and asked the ownership of that jar, Walters took ownership. For this non-jury trial case, Walters’s trial judge overruled Walters’s allegations of defective chain of custody where the police involved gave arguably lame reasons for the discrepancies in their reports concerning custody chain and request for analysis. Walters gives judges wide latitude in barring alleged contraband — or not — from evidence when chain of custody is attacked. That is a double-edged sword that will likely more often favor prosecutors than Virginia criminal defendants, but criminal defendants need to be ready to challenge chain of custody nonetheless. Merely because your trial judge admits the alleged contraband into evidence does not prevent your lawyer from arguing to the jury (or the judge, at a bench trial) that there is reasonable doubt about whether the alleged drugs tested by the chemist is in fact what was seized by law enforcement at the outset.

If my Virginia trial judge allows the alleged drugs into evidence, am I done for?

If your judge allows the alleged drugs or other contraband into evidence at your Virginia trial, a vital attack will be to argue that you were not in actual nor constructive possession of the alleged contraband, to make any missing link arguments to attack spoliation and mixing up of contraband evidence, and to argue that you lacked knowledge (for instance knowledge of the item’s presence, or that it was an illegal item), dominion and control over the item(s) to be culpable in the first place. Walters. Walters unsuccessfully challenged the sufficiency of the evidence, both at the trial and appellate stage. It is one thing to deal drugs to earn an income while understanding the criminal prosecution risks accompanying such activity. It is another thing to self medicate or self-recreate with unlawful drugs, rather than to seek lawful options. The first approach is a financial venture that risks arrest and conviction. The second is more avoidable by finding replacements to such activity.

How harsh are Virginia’s drug laws?

Virginia’s drug laws are harsh on balance and call for iron-fisted defense, that does not rely solely on one argument (for instance missing link arguments) but a full court press. Federal drug laws can be harsher. When charged with a drug offense, immediately seek the best possible Virginia criminal lawyer for you. Fairfax drug defense lawyer Jonathan Katz switched from corporate law to criminal defense long ago, largely out of his opposition to the constant civil liberties violations and dehumanization that are part and parcel of the drug wars. By now, Jon has honed his drug defense approach to attack the prosecution from all necessary angles, including developing and investigating the evidence, fully briefing (through written memoranda of law) and arguing motions to suppress evidence, fully and fearlessly preparing for trial, and pursuing the best possible results in trial and at all other stages of criminal litigation.

When the handcuffs get tightened on your wrists, that is your moment of truth to assert your right to remain silent and to decline searches, to find a way back on the street, and to start finding the right lawyer for you. Fairfax criminal lawyer Jonathan Katz does not romanticize this work against Virginia DUI, felony and misdemeanor prosecutions, which defense fight can get messy; acrimonious with prosecutors, police and judges; and downright ugly. Instead, Jon Katz is a martial arts practitioner who delights at battling for justice for his clients, gets a supreme rush from each win, and, most importantly, has your back at every turn. How do Jon and his staff do it? The best way to learn that answer is to sit down with Jon for your free in-person confidential initial consultation about your court-pending prosecution. Contact us at 703-383-1100, info@BeatTheProsecution.com , and text at 571-406-7268.