Jon Katz, P.C.

Winning when the prosecution cannot prove it is weed

Image from public domain.

When police seem to catch a suspect red-handed with drugs, is all automatically lost? No. Defenses still can include contesting the stop and search that leads to the discovery of the alleged drugs; challenging whether the seized item(s) is actually a controlled dangerous substance (including requiring a chemist’s testimony to prove that the material is a controlled dangerous substance, and challenging the chemist’s testimony); challenging chain of custody; challenging whether the suspect had actual possession through knowledge, dominion and control of the drugs; challenging the quantity of drugs; and challenging whether any possession was purely for personal use.

In other words, as with all criminal defense, drug defense calls for coming armed to the teeth for battle. This is not hyperbole, when considering the loss of liberty and collateral damage that can come from a drug conviction.

In Virginia, a critical decision to be made for defending marijuana possession cases is whether to demand that the alleged marijuana be tested by a chemist, because Virginia law provides steps that law enforcement and prosecutors can take to get an officer’s marijuana field test into evidence at trial. Va. Code § 19.2-188.1. Even if the chemical test demand is made, if the chemist does not show for court, the defense needs to be ready to argue that the police officer’s field test is inadmissible once the defense has timely demanded a chemical analysis, and to argue on other grounds to keep out the field test if the previous objection is overruled.

Demanding a chemical analysis of the alleged marijuana may be a good idea in jurisdictions where the chemists are stretched thin by geography and work obligations and therefore less likely to appear at trial, but in some other jurisdictions, chemists can be expected more often to appear for trial, particularly when their lab is a stone’s throw from the courthouse.

In one of my recent Virginia marijuana trials, the defense did not seek a chemical analysis.

Before trial, I spoke with the sole police officer in the case about the field testing kit he used and about the case in general. The officer seemed attuned to the reasons favoring police talking with criminal defense lawyers pretrial rather than avoiding it.

Less than an hour before trial started, the prosecutor handed me Virginia’s standard form for seeking a chemical analysis of alleged marijuana. § 19.2-188.1. Providing such a form to the defendant “prior to trial” is a prerequisite to getting the police officer’s field test admitted into evidence at trial. I was ready to argue that the prosecutor’s handing me the chemical test form only an hour before trial did not meet such a hurdle, because doing so did not provide the defense with a real opportunity to get the alleged material tested by a chemist without first needing to reschedule the trial.

Praised be the police officer for admitting on the witness stand that the package that contained his field testing kit did not list the name of the test, although he was only familiar with his station’s using the Nark II test. (See page three of this document for the Virginia Department of Forensic Science’s listing of authorized marijuana field testing kits.)  Close but no cigar, because the proof is in the pudding of the label on the actual test kit used, to show whether the officer was using an approved test kit. As a result, the judge refused to admit the field testing results.

The prosecutor then relied on the officer’s testimony that my client admitted that he had marijuana. Praised be the judge for still acquitting my client, and pointing out that merely because my client thought it was marijuana, he could have been mistaken about whether he had counterfeit marijuana. This trial came after Cypress v. Virginia, 699 S.E.2d 206 (Va., Sept. 16, 2010), which found harmless error in the erroneous admission of a certificate of analysis for cocaine against defendant Mark Briscoe, where Briscoe gave a detailed admission about his cocaine purchases and sales and where the police found dozens of grams of cocaine. Cypress. Although I disagree very much with Cypress’s harmless error holding, Cypress did not dictate the result in my case, seeing that at best for the prosecution, the officer found a small quantity of marijuana and got only a brief admission from my client that he had marijuana, as opposed to the more substantial quantities of cocaine found and Briscoe’s detailed admission of his cocaine activity in Cypress. 

In any event, for Virginia drug cases, I file early requests to obtain a copy of  the certificate of analysis, in case the police officer or prosecution arrange the test, in order to argue against the admission of the certificate of analysis into evidence if it is not provided timely to me. The form for requesting the certificate is here. I also file a timely objection to the admission of the certificate of analysis, and file a new one after receiving any notice from the prosecution of an intent to introduce the certificate of analysis into evidence. That form is here. The form for the defense to demand a chemical analysis of the alleged marijuana is here

The Virginia Department of Forensic Science’s Regulations For The Approval Of Marijuana Field Tests For Detection Of Marijuana Plant Material are here, including 6 VAC 40-50-70, which confirms that the DFS “assumes no liability as to the safety of these marijuana field tests or marijuana field test kits, any chemicals contained therein or the procedures and instructions by which they are used.”

This trial victory underlines the importance for criminal defendants to obtain qualified criminal defense counsel and to apply for court-appointed or public defender counsel if they cannot afford a lawyer, and the importance for marijuana defendants not to come to court without a lawyer out of the expectation of dropping like flies into first-time offender marijuana programs.

ADDENDUM: If you are trepidatious about going to trial rather than accepting the prosecutor’s offer to recommend a "251" marijuana disposition upon a guilty plea, read my blog entry on this first. Moreover, judges are empowered to give 251 dispositions after trial convictions, even though some or many judges might be more reluctant to do so under such circumstances.