Defending Drug Charges
Drug Offense Overview
Both North Carolina and the federal government prohibit the possession, sale, and trafficking of controlled substances, except as otherwise prescribed by licensed medical professionals.
Drug crimes can be prosecuted both federally and locally. In almost all cases, local prosecution by the state is preferable to federal prosecution, since federal prosecution almost always results an active prison sentence. Federal United States Attorneys prosecute or adopt cases that have been investigated by federal agents or local law enforcement working as task force officers with the federal government. In some cases, federal prosecutors will adopt drug cases originally charged by the state where the drug amounts are significant.
Where a deferred prosecution may be offered, a defendant may choose to forego a trial in order to win a reduction or dismissal of the charge. And where multiple counts are charged, a favorable plea may dispose of the case through a lenient sentence, or a reduction in charges, particularly if felonies are reduced to misdemeanors.
Where deferred prosecution is not available, a person charged with drug possession usually has three choices:
- Plea Agreement
- Plea Agreement with Cooperation
Trial is the riskiest, but where no suitable plea is contemplated or where the evidence is weak, trial is the best option. Trials are preceded by suppression hearings in drug cases, where the defense lawyer argues that either the stop, search, or interview of the client was conducted improperly and in contravention of state or federal constitutional rights.
The suppression of evidence often results in a dismissal of the case because the government is prohibited from presenting the fruits of the search to a jury.
Plea agreements are explored more fully elsewhere on this site.
Drug case plea agreements have one notable feature: whether state or federal, these agreements frequently include a cooperation agreement that the client may wish to sign in exchange for a sentence reduction.
State trafficking laws, and federal drug and guns cases often carry mandatory minimums. A judge is prohibited from sentencing below the minimum statutory sentence unless either the person qualifies for a “safety valve” exception or provides substantial assistance to the Government through cooperation as provided in 18 USC 3553(e).
Where cooperation is not possible or not practical, and the suppression motions filed fail, the case will proceed to trial. A successful defense turns on the question of possession, or on the reliability of confidential informants who gave evidence to law enforcement about drug transactions.
Drugs found in a common area – such as in the passenger compartment of a car or in a common area in an apartment – may be attributed to the defendant. But since the prosecutor must prove actual or constructive possession. If insufficient evidence ties the accused to the drugs, a not guilty result follows.
Drug trials often include testimony by co-defendants or confidential informants (known on the street as “snitches”) who are usually trading testimony and information they claim to know in exchange for a lenient sentence.
Effective defense tactics seek to undercut the reliability of that testimony by showing witness bias, past criminal conduct, and the heavy sentences the co-defendants likely face absent cooperation.
Other defenses may be available, particularly in cases involving synthetic drugs where the chemical analysis performed by crime labs is insufficient to show that the drugs are scheduled. And sometimes defenses result in partial victories. For instance, in federal drugs and guns cases, simply showing the jury that the gun possession was unrelated to the drug conduct can result in the removal of mandatory minimums that otherwise would result in lengthy mandatory minimums.