Overview
Drug crimes are against Federal and State laws. They involve possession and sale to manufacture, distribution and trafficking of controlled substances. Also involved are prescription drug fraud which includes forgery of doctor prescriptions. An individual can be exposed to criminal liability, at the Federal level, if they are caught participating in a continuing criminal enterprise. The government must prove participation before the individual can be found guilty. In order to be found guilty, evidence must have been obtained legally and not be in violation of the individual’s constitutional rights. The Fourth Amendment protects an individual from unreasonable search and seizure.
Most states have drug courts, which promote drug treatment instead of a jail sentence. If the individual follows the orders, which include a drug treatment program and regular drug testing, the charges can be dismissed or the sentence can be reduced or suspended.
Consequences
The consequences for these crimes include prison, property forfeiture, probation and mandatory court-ordered drug programs. Possession of any amount of a controlled substance will result in consequences, especially if this is not your first conviction. Circumstances also determine the consequences. If found with a gun, near a school or park, and minors are involved, the consequences will be more severe.
Drug Laws
The Federal government has been in control of importation and manufacturing of drugs for over 200 years.
The Comprehensive Drug Abuse Prevention and Control Act or Controlled Substances Act
Congress passed this Act in 1970 – it classifies controlled substances into five categories (Schedules I to V). The categories are based on the substance’s abuse and potential addiction versus the therapeutic value. The law deals with regulatory requirements, enforcement and the penalties involved for the illegal manufacture, possession and distribution of controlled substances.
Most states have less severe penalties than the Federal government. A first-time offender could get a mandatory court-ordered drug program instead of a jail sentence. Consequences depend on the circumstances of the crime and the offender’s criminal record. Federal penalties are often severe.
Schedule I lists the most severe penalties. These drugs include Heroin, LSD and Marijuana. They contain a high potential for abuse and have no accepted medical use.
Schedule II drugs include Cocaine, Methadone, Methamphetamines and PCP. These drugs have a high potential for abuse with a severe dependency for them. However, they do have an accepted medical use.
Schedule III drugs include Codeine and Anabolic Steroids. Their potential for abuse is less, they have a moderate potential for dependency and they have an accepted medical use.
Schedule IV drugs include Valium, tranquilizers and sedatives. There is a less potential for abuse and dependency, and they have an accepted medical use.
Schedule V drugs include Codeine and cough medicines. There is a very low potential for abuse and dependency, and these drugs have an accepted medical use.
Federal Offenses
The Drug Enforcement Administration enforces Federal laws and regulations. Federal offenses are charged differently than state offenses. Crimes that fall under the Controlled Substances Act are (1) Drug Trafficking – The manufacturing and possession of illegal drugs with the intent to distribute them. (2) Manufacturing – The use and distribution of illegal drugs while endangering lives. (3) Possession – Possession of controlled substances without a prescription; does not involve intent to distribute. (4) Conspiracy – The promoting of manufacture and distribution of illegal drugs. (5) Location – The distribution of illegal drugs to individuals under 21, distributing or selling near a school or playground, and having children under 18 involved. (6) Continuing Criminal Enterprise – Trafficking illegal drugs with more than 5 other people.
Federal Consequences
The type of drug and the quantity involved determine the consequences. Federal Sentencing Guidelines are used, taking into consideration whether a weapon was used, if there was injury involved and the defendant’s history. Judges do not always refer to the Guidelines but also stay within the minimum and maximum terms of the state’s statute. Penalties will always be enhanced if the crime is committed near a school.
Search & Seizure / Protection of Privacy
The Fourth Amendment protects individuals against unreasonable search and seizure by government agencies. The Amendment protects individuals who have a reasonable expectation of privacy. This includes intrusion into their home or personal communications. In order for a government agency to intrude on a person’s home for a search or seizure, they must have a valid search warrant with them. It must be issued by a neutral judicial officer, show probable cause for the search, and describe the person or place to be searched or seized. The law enforcement officer must prove a crime committed in order to be granted a search warrant. If the officer violated the Fourth Amendment, the evidence is inadmissible to the case and the charges could be dropped. The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
Warrant Requirement Exceptions
There are circumstances when a search warrant is not necessary. (1) After an arrest searching a person to locate weapons and/or evidence. (2) When an individual consents to waive his or her Fourth Amendment rights. (3) When an object is in plain sight of the officer. (4) When the officer suspects there are illegal drugs in an automobile and will be removed before a search warrant can be issued. (5) When a life is at risk.
Forfeiture
Per Federal statutes, when Federal law enforcement seizes property that is involved in illegal drug activity, it is called forfeiture. Property includes contraband (illegal drugs or smuggled goods), property use to commit a crime (automobiles, homes), and property that can be traced to illegal activity.
Criminal forfeiture - the government takes property after the defendant is convicted; this is part of the sentence. The defendant is protected by the Fourth and Fifth Amendments. The government needs to prove beyond a reasonable doubt that the defendant obtained the property in question when the crime was committed.
Civil forfeiture – Actions proceed against the defendant rather than the owner of the property. The Civil Asset Forfeiture Reform Act of 2000 requires the government to prove the property was involved in a crime. The Reform Act makes it easier for innocent people to question the seizure and get their property returned.
Drug Courts
The drug courts were first established in 1989 in Florida. The drug courts mix criminal justice with medical treatment programs. This system involves cooperation by the court, prosecution, defendant and drug treatment providers. The main purpose is to rehabilitate an individual who has a substance abuse problem along with a conviction for a drug crime. The program lasts 12 months. It consists of counseling, frequent drug testing and court appearances. The individual’s progress is monitored on a regular basis. This program is mostly for first-time offenders but others can be helped. Those that complete the program can have their sentences reduced or dismissed completely.
Conclusion
Being charged with a drug crime has serious consequences, including jail. If you are facing Federal or State drug crimes, contact one of our criminal defense attorneys to discuss your rights and what options you have.
Links to more information
http://www.publicagenda.org/citizen/issueguides/illegal-drugs
http://www.ncjrs.gov/spotlight/drug_courts/summary.html
http://www.usdoj.gov/dea/agency/penalties.htm
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