How to Get a Possession Charge Dismissed
You should know that laws concerning drug possession are different in Louisiana than other states. Therefore, there are different ways to get a possession charge dismissed in every state. We will discuss the common ways.
Knowing and Intentional Possession of Drugs
The prosecutor must prove that the defendant was in knowing and intentional possession of drugs. This is when you need to know the laws concerning drug possession in Louisiana. Don’t read just anything about drug possession on the internet. Most of the time, it is referring to laws from other states. This also applies if you want to travel to another state. You should know the laws of that particular state concerning drug possession. A drug may be illegal in one state but legal in the other.
Before conviction, the prosecutor must prove that the defendant was in knowing and intentional possession of drugs. Your lawyer can get a drug possession charge dismissed if he can show you didn’t have actual or joint possession. Drug possession can be actual, joint, and/or constructive possession. These terms are important to understand for any drug charge defenses. If the prosecutor cannot prove the defendant knowingly and intentionally possessed the drugs through the use of witness statements, audio/video recordings, physical evidence, and crime lab analysis, then the drug possession charge should get dismissed or the defendant found not guilty at trial.
The legality of the police officer’s investigation is the first defense we consider in pursuit of getting a drug possession charge dismissed. The defendant has constitutional rights against unreasonable search and seizure. If the officer violated those rights, we attempt to prove this at a suppression hearing before trial. If the judge believes the search and/or seizure was illegal, he may order the evidence to be suppressed from use at trial. Many times, this can make the prosecutor’s case fall apart, which can lead to a dismissal of the drug possession charge.
Evidence suppression is a very difficult defense to drug charges to prove. However, a skilled drug defense attorney knows what to look for.
How Long Do You Go To Jail For Possession?
How long you go to jail for possession depends on the schedule of drug you were alleged to have possessed and the quantity of it. For instance, possession of 5 pounds of heroin (Schedule 1) will have a much harsher sentencing range than possession of 2 grams of methamphetamine (Schedule 2). Therefore, you could go to jail for possession of heroin for a lot longer than meth at those amounts. In Louisiana, marijuana is punished less severely than other drugs. However, you can still go to jail for possession of marijuana if it is a large amount leading to a charge for possession with intent to distribute. Trafficking marijuana through Louisiana is very risky. You could go to jail for possession for not less than one year nor more than ten years if it has an aggregate weight of less than two and one half pounds or for not less than one year nor more than twenty years if it has an aggregate weight of two and one half pounds or more. If you possess marijuana in the amount of more than 14 grams, you could go to jail for possession for up to 6 months. As you can see in this example, how long you go to jail for possession varies for marijuana possession. This is the same for all drugs in Louisiana.
Average Sentence for Drug Possession
Just like stated above, the type of drug and quantity of the drug are important variables in determining the average sentence for drug possession. Another very important variable is the criminal record of the defendant. If the defendant has previous convictions on his record, you can be sure the sentence would be higher for him than someone with a clean record. The average sentence for drug possession by previously convicted felons is definitely higher than first-offense drug offenders. There really is no average sentence for drug possession in Louisiana. Our drug defense lawyers consider approximately 10-15 different variables to determine what we think the average sentence might be if our client is convicted. Ultimately, the judge makes that decision. He could be in a bad mood or be a martyr against drug crimes. This could lead to a harsher sentence.
How to Beat a Drug Possession Charge
There are many ways we try to beat a drug possession charge. We have beat drug possession charges by proving the officer violated our client’s constitutional rights. For instance, it the officer is unable to articulate a reasonable basis for the stop, we would try to get the drugs suppresses from trial as this was a violation of the defendant’s constitutional rights. This may happen when the officer is profiling the defendant or clearly was out of line in approaching the defendant or stopping him for no other reason than that he “looked suspicious.” The officer must have a legitimate traffic violation he can describe in court to legally pull someone over. Also, we have beat drug possession charges by showing there is not proof beyond a reasonable doubt that the defendant possessed the drugs. We have beaten drug possession charges by pointing out that the prosecutor can’t prove it was actually an illegal drug that was possessed. If the drug test comes back inconclusive, we can beat the drug charge.
List of Drug Charges and Sentences
Below is a list of some of the more common drug charges and sentences in Louisiana. This does not cover all the potential drug charges an sentences. Also, keep in my that these drug laws change frequently. The internet can only provide so much current drug law information. Give us a call if you have a drug charge so we can give you the best information about your case.
Possession of Alprazolam (Xanax) 1-5 w/wo hard labor
Distribution, Manufacture or PWID Alprazolam 1-10 w/wo hard labor
Possession of Cocaine (<2g) 0-2 w/wo hard labor
Possession of Cocaine (2g – 28g) 1-5 w/wo hard labor
Distribution or PWID Cocaine (<28g) 1-10 w/wo hard labor
Distribution or PWID Cocaine (more than or equal to 28g) 1-20 at hard labor
Possession of Ecstasy/MDMA (<2g) 0-2 w/wo hard labor
Possession of Ecstasy/MDMA (2g-28g) 1-10 w/wo hard labor
Distribution, Manufacture or PWID (<28g) Ecstasy (MDMA) 1-10 w/wo hard labor
Distribution, Manufacture or PWID (more than or equal to 28g) Ecstasy (MDMA) 1-20 at hard labor
Possession of Heroin and Fentanyl (<2g) 2-4 w/wo hard labor
Possession of Fentanyl (2g – 28g) 2-10 w/wo hard labor
Distribution, Manufacture or PWID, Possession of Fentanyl (more than or = 28g) 5-40 at hard labor
Possession of Methamphetamine (<2g) 0-2 w/wo hard labor
Possession of Methamphetamine (2g – 28g) 1-5 w/wo hard labor
PWID Methamphetamine (<28g) 1-10 w/wo hard labor
PWID Methamphetamine (>28g) 1-20 at hard labor
Drug Laws by State
The drug laws by state vary. Louisiana drug laws are completely different than drug laws in Mississippi and drug laws in Texas. That is why when you travel in different states, you need to understand the drug laws by state or else you may find yourself in illegal possession of drugs in one state but not another. Marijuana really is the only drug that varies state to state. You can bet most other drugs are illegal without a valid prescription. The drug sentences are what varies so much. States with less trafficking seem to have less stringent drug laws than states along the border of Mexico. On the other hand, federal drug laws are the same applied to every state. So, if the feds make the arrest and/or prosecute, the sentencing ranges will be the same, regardless of the state.
How Much is Bail for Possession of Drugs?
Bail for possession of drugs varies based on many factors. The judge sets the bail amount after the arrestee is booked in jail. The setting of the bail amount is similar to sentencing after a conviction in the sense that the judge sets both. The difference is that in setting a bail, the judge does not know as much about the case. He only knows what the charges are that the arrestee was booked under, the facts listed in the affidavit of probable cause, and possibly his rap sheet. The judge will see if the arrestee is from out-of-state or local. The bail for possession of drugs if the amount is 500 pounds of marijuana and the arrestee is from out-of-state will be much higher than an arrestee with 5 pounds of marijuana than lives in state. The first arrestee is more of a flight risk and has a higher chance of doing prison time. Bail for possession of a 14 grams or less of marijuana in Louisiana is no longer allowed. The defendant must get a summons instead of getting booked.
Is Weed Legal in Louisiana 2024?
No. Weed is illegal in Louisiana as of the most recent legislative session. There seems to be a lot of confusion about this. There have been some big changes to the Louisiana marijuana laws in recent years but, no change has legalized marijuana. The biggest change to the weed laws is that if the offender possesses 14 grams of marijuana or less, the punishment is now a fine of not more than $100. The judge can no longer put the defendant in jail or even on probation. This is important because police officers can no longer arrest for this quantity either. However, if the officer smells weed, he can do a probable cause search. If weed was legal, he couldn’t do that search without a warrant. So, weed is still very illegal in Louisiana in 2024. The new law changes are important too relating to enhancement of penalties for multiple-offender marijuana possession cases. An offender who has not been convicted of any other violation of a statute or ordinance prohibiting the possession of marijuana for a period of two years from the date of completion of sentence, probation, parole, or suspension of sentence shall not have the conviction used as a predicate conviction for enhancement purposes. Therefore, the new marijuana possession charge cannot be a second or third offense if two has lapsed since completing probation for the previous conviction and the date of arrest/summons for the new one.
How to Get a Possession Charge Dropped
There is a big difference between getting a drug possession charge beat and dropped. The drug possession charge gets dropped by the prosecutor. It gets beat by the judge or jury finding the defendant not guilty at trial. The prosecutor brings all the charges. He determines exactly what to charge. The judge has nothing to do with this. The prosecutor can drop charges whenever he wants. The judge cannot dismiss cases. The judge can only find the defendant not guilty. There are ways to persuade the prosecutor to drop your drug possession charge. This is what we do every day. We look to find defenses in the facts, law changes, and mitigation aspects of the case. Sometimes, drug treatment can help us persuade the prosecutor to drop the case. Every case is different.
Drugs Found in Car Not Mine
This is a common scenario that we face in defending our clients. Drugs are found in the car and the defendant claims they were not mine stating that someone else left them there. Usually, the officer doesn’t believe him because nobody else is present to admit to the sole ownership and possession. The officer will also consider who the car is registered to and if other belongings in the car are the defendant’s or someone else’s. If multiple people are in the car during the arrest, it is a better defense to prove the drugs in the car were not yours. There are other people who could easily be in possession and we could show the defendant had no dominion and control over the drugs in the car. The “drugs found in car not mine” defense is only good in certain situations like these. If nobody else is present, it will be the burden of the defense to prove at trial that the defendant’s friend left them there. The defendant would need to call that friend to the witness stand to testify the drugs “mine.” Then, the jury would have to believe him and not think he was just taking the hit for it to get his buddy out of it. The friend would then get prosecuted. Both could end of getting convicted. We would not let this happen to our client. There are better ways to handle this situation.
Can You Be Charged With Possession After the Fact?
You can be charged with possession after the fact. This does not mean you can be convicted. It depends on the facts. Let’s say for example, you were detained by the police for possession. The officer asks you to “work it off” or else he will get a warrant for your arrest. If the initial drug possession is a good case for the officer and he lets you go to see if you will turn confidential informant, and you don’t, then he may bring that initial drug possession case against you after the fact. In this situation, you can be charged with possession after the fact. But, in the case of the officer finding drugs in your room while executing a search warrant but you aren’t there, you could argue that you didn’t possess those or that the State can’t prove beyond a reasonable doubt possession.
Can You Be Charged With Possession for Residue?
Yes. The Louisiana drug laws do not differentiate possession of residue from possession of drugs. If the residue can be tested positive for drugs, it can be used as drug possession. You can be charged with possession for residue if the officer confiscates your pipe or baggie that held the drug. This happens all the time. This is a mitigating factor in your case that we try to use when communicating with the prosecutor and judge. Possession of residue is better that possession of 5 grams but, technically, it is the same thing.
Can You Go To Jail For Doing Drugs?
It is not illegal to do drugs. It is illegal to possess drugs. So, the only way to do drugs is to possess the drugs. There must be some quantity of the drug present to be seized and placed into evidence to be used against you at your trial. They can’t get that if it is in your blood. However, you can go to jail for doing drugs if you are on probation or as a bond condition violation. Many times, if a defendant is on probation or on bond, the judge will order them to be drug-free and subject to drug screens. If they fail a drug test, the judge can make them go to jail for doing drugs.
Arrested for Drug Possession, Now What?
About 1.65 million drug arrests occur in the US each year. Marijuana-related offenses amount to about 40% of these cases. If you were recently picked up for a drug possession charge, don’t try to argue your case alone.
Instead, make sure you have an experienced criminal defense attorney at your side.
They can help build a strong criminal defense for your case. With their help, you can fight your criminal charges and prove your innocence.
If you try to handle the situation alone, however, you could dig yourself into even more trouble. You might not get the charge dismissed, either.
Here are five tips that can help when you’re facing criminal charges. Reading this guide will help you discover different ways to build your criminal defense.
Read on to learn more about avoiding criminal charges today!
1. Find a Drug Defense Lawyer
Above all else, it’s important to find a criminal defense law firm in Louisiana. Their experience and expertise could prove crucial to your criminal defense. Otherwise, you might struggle to build your defense with the necessary evidence.
There are now 813,900 lawyers throughout the US. Between 2019 and 2029, that number could grow by 32,300. Not every lawyer in Louisiana will have the experience you need, though.
Instead, narrow down your options by looking for criminal defense lawyers.
You can start your search online. Google “criminal defense attorney near me” or visit your local bar association website. You can also check the Martindale-Hubbel law firm directory.
As you review your options, try to find a criminal defense lawyer with years of case experience. Determine how many drug possession cases they’ve handled over the years. An experienced lawyer will know what legal strategy to use for your case.
They’ll have an easier time building your criminal defense.
An experienced drug defense lawyer will also know what local laws, procedures, or recent cases might impact your court case. They might even have contacts in the area you can utilize.
Make sure the lawyer you choose has years of experience in Louisiana. Some laws can differ based on your location. If they’re new to the area, they might work off of irrelevant information.
Interview a few lawyers on your list. Determine:
- How long they’ve practiced law
- How long they’ve specialized as a criminal defense attorney
- Their fee structure
- How many drug possession charges they’ve handled
- Their track record for recent cases
- If they’re a strong communicator
- Their availability
You’ll have peace of mind knowing a qualified lawyer is at your side. Then, you can discuss the specifics of your case to build your defense.
2. Prove Your Rights Were Violated
Choosing the right criminal defense attorney can help you determine the best strategy for your specific case.
Take the time to walk your lawyer through what happened during your arrest. They can determine if your rights were violated.
First, your lawyer will need to start gathering research. They might rely on a professional network of investigators and experts. Their network can gather witnesses, crime scene evidence, and relevant documents.
Then, your lawyer can start building a narrative regarding what happened. The story they compose could compel the jury to see your side.
For example, your lawyer might try to prove your rights were violated at the time of your arrest.
If your lawyer can prove your rights were violated, they could get your court case thrown out. For example, they might try to prove a(n):
- Unlawful search and seizure
- Improper or illegal traffic stop
- Refusal to allow you to request a lawyer
- Failure to read your rights prior to questions
Depending on your situation, your lawyer might try to prove the police fabricated evidence before your arrest. For example, perhaps they planted controlled substances in your home or vehicle. Maybe they lied about having a warrant.
Proving your rights were violated could help you get the charge dismissed.
3. Prove a Medical Exemption
There are many medications that are considered controlled substances under the law. You’ll need a doctor’s prescription to legally possess these medications, though.
Your criminal defense attorney can gather the necessary evidence to prove you have a right to carry specific substances. For example, they might call a medical expert to testify at your court case. Then, they can prove you have a medical exemption.
For this criminal defense to work, however, you’ll need a doctor’s prescription. Otherwise, you might struggle to prove you have a right to carry that medication.
4. Demonstrate Mistake of Fact
What if the drugs were never yours? Your criminal defense attorney might try to argue a mistake of fact to get the charge dismissed.
They might put pressure on the prosecutor to prove the drugs were yours without any doubt.
Perhaps the drugs were found in a shared vehicle or apartment. Maybe they were kept in a place that’s easily accessible to others. Your lawyer will try to argue the drugs belonged to someone else.
This legal strategy is sometimes difficult to prove during a court case, though. Don’t try to argue your innocence alone. Make sure you have a qualified, Louisiana lawyer who can build your defense.
5. Gain Posts of Leverage
Your lawyer will likely try to win your case out of court first.
For example, they might try to gather the evidence necessary to have the cases thrown out. Your lawyer will need to prove they have strong leverage first.
Your lawyer might try to use points of light, too. They’ll build your defense by showing the court you’re a real human. Encouraging empathy could help your defense.
Discuss the factors of your case with your criminal defense attorney. They’ll ensure you review your legal options before choosing a strategy.
Avoid Prison: 5 Tips for Getting a Possession Charge Dismissed
Don’t try to get a possession charge dismissed on your own. Instead, find a criminal defense law firm in Louisiana. Finding an experienced criminal defense attorney like the Barkemeyer Law Firm, could make all the difference in your case.
With a qualified lawyer, you can avoid criminal charges. Learn more about the Barkemeyer Law Firm below:
Want to discuss the specifics of your case with a qualified lawyer? Fill out this form today to get started.