Interviewer: What are the top misconceptions that people have about drug cases?
Lauren Scardella: It really runs the gamut from people who think that a particular drug should not be illegal, usually marijuana, to people who think that the lab won’t be able to detect a very small quantity of a drug. There are lots of people who think that it should not be illegal and they really shouldn’t have to suffer any sort of penalty, but that’s not reality. It’s illegal and any tiny amount of it can be the basis for a criminal charge of possession. I’ve had lab reports come back with 0.01 grams of marijuana or “trace,” and that’s a minuscule amount. That’s probably just residue but it’s there and they can be charged and convicted. There’s that misconception when people will say, “They’re not going to be able to find anything because there really wasn’t anything there.” If they test the glass pipe or maybe sometimes people have a roach from a joint that they smoked in the car, and they say, “No, it really isn’t anything.” They’ll test whatever it is and if it comes back positive, then there’s the basis for the charge.
People Mistakenly Believe that Driving while Impaired on Prescription Drugs is Not Illegal
People think that because a prescription drug is prescribed to them, it’s okay to abuse the prescription and maybe drive around while under the influence of that drug. There’s a big misconception when it comes to things like drunk driving or driving under the influence. People will call and say, “But it was my prescription.” It doesn’t matter. And if you get in an accident where someone gets injured while you’re driving around high on your own prescription painkillers or something, that’s an indictable offense and you could go to jail if you get convicted.
People Will Admit to Ownership of a Particular Drug Before a Policeman or in Court
Interviewer: Does it ever happen that someone stands up for them and says, “He’s right, you know, they weren’t his, they’re actually mine?”
Lauren Scardella: Actually you would be surprised by how often that does happen. Many times, people will say, “Yes, actually it was mine,” and take the responsibility for somebody else who maybe got arrested with them in the car and say, “Well, it really wasn’t his so I’m going to be the one that takes the fall.” It is surprising but it actually happens.
The Rights of a Citizen in Regards to Search and Seizures Conducted by the Police
Interviewer: What are people’s rights with searches and seizures? How does that come into play with drug cases? Does that ever have any weight in a case?
Lauren Scardella: Absolutely. The most common way that somebody gets their car searched in a motor vehicle stop is that the officer will say, “I smell weed, have you been smoking?”, and the person will say, “No, no. I haven’t been smoking.” Occasionally the person will admit it, or say that they smoked in the car earlier in the day or week. The officer will then say, “Well, I smell it. You got anything in the car?”, and they’ll say, “No.” The officer may then say, “I wonder if I could search your car just in case; can I have permission to search your car?”, and they fill out a consent to search form and the person will sign it. You do not have to consent to a search. What officers will do is tell the person that, “If you don’t consent to search, I’m going to have your car towed and I’m going to apply for a search warrant.”
It is Advisable Not to Consent to a Police Search and to Let a Policeman Apply for a Warrant
They have the right to do that, so make them. People are just worried about, “I don’t want my car to be impounded; I don’t want to have to pay to get it out. I need my car for this or for that.” So they sign the consent to search form knowing that there’s something in the car but maybe what the officer has in terms of probable cause for a search isn’t really enough for a search warrant. Let them apply for a search warrant and impound your car because if you just consent to the search, you’re just handing them all the evidence they need to charge and probably convict you.
Any Evidence Procured through an Illegal Search Can be Suppressed at a Trial
You don’t want to be giving the evidence to the cops; make them work for it. If it’s there, you still make them work for it, because you don’t get any extra special favor with the prosecutor or a cop just because you let them do it. You’re going to get charged with the same thing either way. Occasionally, a search is truly done with no warrant, or no probable cause and exigent circumstances – that’s the standard the cops have to meet for a warrantless search to be valid – or sometimes they search the inside of something that was in plain view, like a zippered backpack or purse, for instance. In those kinds of cases we would file a motion to suppress whatever evidence was found as a result of the illegal search. That’s another reason you need to hire an experienced criminal defense attorney to defend your drug case.