Interviewer: How does probation come into play? What’s the difference between probation and other sorts of programs?
Lauren Scardella: Probation for drug offenders is the same as with any other offense that you might get probation for. You would be assigned to a probation officer, you would have to meet with that officer, you might have to attend drug or alcohol counseling or AA or NA meetings. You would probably have to submit to random urine tests. If you’ve already had a first offender’s program and the offense that you’re looking at now is not that serious, such as a third or fourth degree offense or even a disorderly persons offense in Municipal Court, there’s a presumption against non-incarceration. Therefore, as a second offender with a prior PTI or CD, you are most likely going to get probation unless there are major aggravating factors weighing against it. Also, there are some charges that require a minimum mandatory period of incarceration.
The Common Avenues That Can Lead to a Dismissal of the Drug Possession Case
Interviewer: Are there any ways that a case can actually get dismissed?
Lauren Scardella: The first offender’s program would be the most common way that charges get dismissed. Once in a while, the lab report does not show that the substance involved was actually drugs. It doesn’t happen all that often but that’s a sure-fire win. Another way that it could just be all-out dismissed is if one of your co-defendants owns up to the drugs being his and not yours. Generally speaking, a prosecutor will dismiss against a person when a co-defendant takes responsibility for the ownership of the drugs.
People Have a Misguided Notion that If their Miranda Rights Were Not Read, the Case Will be Dismissed
Interviewer: Do people ever say, “They didn’t read me my Miranda Rights so the case is going to get dismissed?”
Lauren Scardella: Yes, they have that notion all the time but it’s not true. The police only have to advise you of your Miranda rights if you’re in custody and being interrogated. Interrogation means questions designed to elicit an incriminating response, such as “did you do it?” “What’s your name?” doesn’t fit into that category. There is a misperception that the moment the cops slap the handcuffs on you, they have to read you your rights, and I guess we can all thank television and the movies for that.
Many People Waive their Rights During Interrogation Which is a Big Mistake
People will call and say, “They arrested me and they put on handcuffs but they never read me my rights.” I’ll ask them, “Did they ever ask you any questions about the offense?” They’ll say, “No.” That’s kind of the end of that. It does happen, but not nearly as often as people think. A lot of police officers will just read you your rights when they arrest you because they think that it kind of covers them but then they will read you your rights again when they go to interrogate you. Many people will waive their rights which the wrong decision 100% of the time. The other important thing to remember is that just because the cops didn’t read you your rights does not mean that the case gets dismissed. That’s a big misconception. The sanction for the police failing to warn you of your rights is exclusion of the incriminating statement, not dismissal.
A Dismissal Does Not Erase an Arrest from the Records, Only an Expungement Will Do That
Interviewer: If my case gets dismissed, does that mean it’s going to go completely off of my record?
Lauren Scardella: No, it doesn’t. If their case gets dismissed, the arrest record would still remain. If they want to have absolutely no record, they would have to get an expungement.
The Possession of Drug Paraphernalia Results in Additional Drug Paraphernalia Charges
Interviewer: What about drug paraphernalia charges?
Lauren Scardella: If a defendant has some type of drug paraphernalia, he or she will almost always be charged with that, in addition to the drug possession charges.