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Drug charges cover a broad range of offenses, from the less severe, like simple possession of a small amount of certain drugs, to the more serious, such as participation in an ongoing drug-related criminal enterprise or manufacturing and distributing drugs. Even minor charges can be terrifying, however, and carry the risk of serious penalties upon conviction; the more serious charges, of course, can give rise to even graver consequences. An experienced criminal defense attorney can take some of the terror out of drug charges by answering questions and guiding an accused offender through the complex legal maze that awaits.

Federal and State Drug Laws
Although in earlier times drugs were an accepted part of many religious rituals and were lauded for their medicinal effects, society’s view of drug use changed and the first narcotics laws began to appear in the early 1900s. In 1970, the federal government passed the Drug Abuse Prevention and Control Act, which codified federal drug law into a uniform system. The Act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The Act also allows the United States Attorney General to add drugs to the schedules as necessary. Most states have drug laws that mirror the federal act, but the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. A conviction of simple possession, for example may receive a sentence under state law of drug treatment rather than jail time, and probation may be available to first-time offenders for even the more serious crimes.

The most severe legal restrictions and penalties involve Schedule I and II drugs as set forth in the federal law. Schedule I drugs are those with a high potential for abuse, with an absence of any medical use, and that are dangerous to the user even under medical supervision. The most well known of these drugs are heroin, LSD, mescaline, marijuana, and peyote. Schedule II drugs have a high potential for abuse and a high potential for severe psychological or physical dependency, but a currently accepted medical use. Schedule II drugs include opium, cocaine, methadone, amphetamines, and methamphetamines. Schedule III drugs, by comparison have less potential for abuse than Schedule II drugs, a potential for moderate psychological or physical dependency, and an accepted medical use. The most well known Schedule III drug is naline, which is used to detect narcotic use. Schedule IV drugs have less potential for abuse than Schedule III drugs, they have a limited potential for dependency, and they are accepted in medical treatment. These drugs include tranquilizers, meprobamate, chloral hydrate, most drugs that cause sleep, and sedatives. Schedule V drugs, which have a low potential for abuse, limited risk for dependency, and accepted medical uses, include drugs with small amounts of codeine or other narcotics in them.

Drug-Related Crimes and Penalties
The federal sentencing guidelines begin with forty-three base offense levels for drug charges and add or subtract a few levels depending on certain specified criteria. The higher the offense level, the harsher the sentence. The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. If the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and is listed on the same schedule of controlled substances, but the quantity of crack needed to impose a certain sentence is much less than the quantity of powdered cocaine. A person convicted of the crime of delivering five grams of crack will receive a sentence in the federal system of five to forty years, for example, whereas to receive that same sentence on a cocaine charge, a person would have to be convicted of delivering 500 grams of powdered cocaine. It is essential for an accused to be represented by attorneys who have experience navigating these sentencing issues.

The crime of “simple possession” requires that the offender knowingly and intentionally possess a scheduled drug without a valid prescription. The government must prove that the offender knew the drug was a controlled substance and that he or she had either actual possession of it or other control over it, either alone or with another. The federal sentencing guidelines provide for a maximum of one year in prison for a first offender, a maximum of two years in prison for a second offender, and a maximum of three years in prison for a third or higher offender. The sentence for possession of more than five grams of crack cocaine, however, is increased to a minimum of five years in prison, even for first-time offenders.

Manufacturing, delivering, or possessing with intent to deliver a controlled substance is a crime with escalating penalties depending on the drug involved, the quantity of the drug, and the offender’s prior record. For example, a first offender convicted of possessing with intent to deliver 100 grams to five kilograms of heroin will receive a mandatory minimum sentence of five years in prison, but possibly as many as forty years. Three crimes-distributing controlled substances to persons under twenty-one years of age, distributing controlled substances near a school, and causing persons under age eighteen to violate drug laws-are penalty-enhancement crimes for which the sentence is double or triple what it would otherwise be for distributing that particular amount and type of drug under other circumstances.

The offense of “continuing criminal enterprise” is charged when the defendant commits a felony drug violation as part of a continuing enterprise or scheme with five or more individuals, and from which substantial income is derived. The penalty is twenty years to life in prison, or even the death penalty if the offender intentionally kills another in the course of the enterprise.

Drug crimes carry harsh penalties, particularly under the federal law. If you have been charged with a drug-related crime, you could be facing time in prison-a frightening thought for most people. If your future is on the line because of a drug charge, do not hesitate to call an experienced criminal defense attorney, who will put his or her skill and knowledge to work for you at once.

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According to the Bureau of Justice Statistics, it costs a national average of over $20,000 per year to incarcerate a criminal offender. With about 150,000 inmates currently incarcerated on drug possession charges, the United States is spending nearly $3,000,000 each year to imprison these people. Further, research has indicated that every dollar invested in addiction treatment programs yields a return of between four and seven dollars in reduced drug-related crime, criminal justice costs, and theft. With such impressive savings at stake, more courts are looking at drug treatment versus imprisonment when sentencing drug offenders. Experienced criminal law attorneys can describe the treatment options available to drug offenders in their states and push for those options instead of imprisonment.

More and More States Encourage or Require Sentencing to Treatment Centers
Some states have implemented legislation that encourages or even mandates this new approach to sentencing drug offenders. The sentencing programs in these states recognize that in some cases, the best solution for drug problems is not increased incarceration but rather increased treatment. California’s law, for instance, requires judges to offer nonviolent drug offenders probation with substance abuse treatment in lieu of incarceration for their first two offenses. The court can choose from a variety of state-licensed treatment programs. The offender’s sentence may also include community service, literacy training, family counseling, and vocational training.

While most states have some kind of law that provides treatment options to drug offenders, California was only the second state to pass a comprehensive program by voter referendum. Arizona was the first in 1996 with its Drug Medicalization, Prevention and Control Act. Arizona’s Supreme Court has found that 75% of the participants in its program remained drug free in the first year, saving the state $2,500,000. Based on these positive results, other states are also working on treatment options for nonviolent offenders. New York’s chief judge ordered the state’s courts to start phasing in a program that would offer nearly all substance-abusing criminals treatment instead of jail time, for example, and North Carolina and Oregon have also passed laws regarding drug court or conditional probation for certain drug offenders. Washington state, too, has provided for sentencing alternatives in drug cases.

These states have demonstrated that by providing treatment to non-violent drug offenders that would otherwise be incarcerated, society benefits in many ways. Millions of tax dollars can be saved by providing treatment, and treatment programs also incorporate vocational and life skill training, thus enabling the drug user to become a productive part of society once again.

Current drug policy places an increasing burden on an already overburdened and over-crowded prison system by incarcerating non-violent drug offenders in spaces that could be better used to house violent criminals. The public stands to benefit from the financial and societal savings that result from treatment versus imprisonment for certain drug offenders, and the offenders themselves benefit from the training and rehabilitation afforded them in treatment centers. If you or someone you know has been charged with a drug-related crime and you have questions about the options that may be available, contact an experienced criminal defense attorney now.

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» The Federal Bureau of Investigation’s Uniform Crime Reports estimated that in 2002 there were a total of 1,538,800 state and local arrests for drug violations in the United States. If you are one of the many facing drug charges this year, it is imperative that you seek legal counsel at once.

» The total number of drug arrests per year tops the annual total for all other offenses, including drunk driving, assault, theft, and disorderly conduct. If you are charged with a drug offense, do not delay in contacting a criminal defense attorney with experience defending against drug charges.

» The Bureau of Justice Statistics of the United States Department of Justice also reports that the likelihood of an arrest leading to a conviction has generally risen in the past decade. When the stakes are this high, your best bet is to work with counsel skilled at defending against drug charges.

» Over two-thirds of those convicted of a felony in 2000 were sentenced to incarceration, with an average felony sentence of four and one-half years. If you want to reduce the chances that you’ll spend the next few years of your life in jail, you must make sure that your defense strategy includes having a veteran of the criminal justice system with drug defense experience on your team.

To learn more about criminal defense and what actions you should take, visit our drug charge faq.

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The Fifth Amendment mandates that charges for all capital and “infamous” crimes be brought by an indictment returned by a grand jury. The Amendment has been interpreted to require an indictment to charge all federal felonies, including federal drug charges, unless a defendant waives his or her right to be indicted. The Supreme Court has concluded, however, that states are not bound by this part of the Fifth Amendment. Although legal counsel for the person at the center of the proceedings and for witnesses testifying in front of the grand jury cannot be in the grand jury room, an experienced criminal law attorney can provide advice outside of the presence of the jury and explain the grand jury process, taking some of the mystery and terror out of this procedure.

“Regular” and “Special” Grand Juries
Federal grand juries usually serve two functions. The first is the indictment process, which involves deciding if someone should be charged with a crime. This purpose is served by a regular grand jury. The second purpose is to investigate criminal activity. Special grand juries serving this purpose may be called upon to explore whether there is possible criminal activity, like an ongoing criminal enterprise. Drug charges are more likely to be the subject of a regular grand jury, but in the case of a suspected criminal enterprise involving drugs or another complicated and more serious crime, like a racketeering violation, a special grand jury may be convened.

The purpose of a regular grand jury proceeding is to determine if there is enough evidence to charge someone with a crime. The proceeding does not have the adversarial “give and take” of a trial to determine guilt. Only prosecutors may introduce evidence in a grand jury proceeding. In addition, grand juries can gather evidence independent of the prosecutor through the use of subpoenas. They can also ask questions of witnesses that the prosecutor did not ask. The person who might be charged, however, does not have the right to even attend the proceeding or to present evidence.

A Cloak of Secrecy
Grand jury proceedings are secret. Although some courts record grand jury proceedings, the proceedings and their transcripts are not open to the public or the press. Grand jurors and witnesses are sworn not to reveal what happened in the proceedings. Unless a judge lifts this secrecy requirement, the oath of secrecy continues forever. In many instances, though, a judge may lift the requirement after an indictment has been charged.

A witness in a grand jury proceeding is not entitled to have his or her attorney present in the grand jury room while testifying. However, the attorney may wait outside the room and the witness may ask to leave the grand jury room to consult with his or her attorney. Although witnesses before federal grand juries do not have the right to an attorney, many courts will appoint an attorney for a witness who cannot afford one.

The Composition of a Grand Jury
There are usually between sixteen and twenty-three jurors on a grand jury. A grand jury can only conduct official activities when it has a quorum, which usually consists of at least sixteen people. Sometimes a court may appoint one or more alternate grand jurors to replace a grand juror who is excused during the term for illness or other reasons. If alternates have not been appointed, the court can replace a grand juror merely by appointing another individual to serve in that role.

Grand juries must have a foreperson and a deputy foreperson. The court supervising the grand jury usually appoints the foreperson and deputy foreperson based on input from the jurors. The foreperson administers oaths to witnesses and presides over the grand jury’s sessions. The deputy foreperson performs the foreperson’s duties when the foreperson is unavailable.

Grand juries have a lot of power. They can determine whether enough evidence exists to bring drug charges against one or more individuals, but they can also refuse to indict someone if they do not believe there is sufficient evidence to charge him or her with a crime. Although defense lawyers are not present in the grand jury room, they still serve the essential role of advising both witnesses and those persons whose actions are the subject of the grand jury proceedings. Accordingly, the counsel of the most knowledgeable and experienced criminal defense attorneys is an essential part of the grand jury process.

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The United States judicial system is divided into state and federal courts. Whether a person accused of a drug-related crime is prosecuted in the federal or state criminal system depends on what laws were violated and the policies and procedures of each court system. Out of the millions of felony prosecutions filed each year, only about three percent are filed in the federal system. Often a particular criminal behavior will violate both a state and a federal law, and drug charges are no exception. In theory, the offender could be prosecuted in both systems for the same criminal activity, but in practice this rarely happens. Most federal and state prosecutors divide up criminal charges based on availability of resources, which statute most closely fits the criminal conduct, available punishment in each system, and each system’s policy considerations. If accused of a drug charge, it is crucial to contact an attorney who understands both systems through long experience.

The main federal law at issue in drug cases is the Drug Abuse Prevention and Control Act, which codified federal drug law into a uniform system. The Act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The Act also allows the United States Attorney General to add drugs to the schedules as necessary. Most states have drug laws that mirror the federal act, but the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. A conviction of simple possession, for example may receive a sentence under state law of drug treatment rather than jail time, and probation may be available to first-time offenders for even the more serious crimes. A lawyer experienced in criminal law can explain the differences between the state and federal court systems, both in general terms and with regard to drug charges in particular.

Sources of Federal Laws Relating to Drug Charges
Traditionally, defining crimes and providing for their prosecution and punishment has been a function of each state’s government. The federal government must act within the powers authorized by the Constitution when defining a federal crime. Congress generally uses its powers to tax, regulate commerce, and control the postal system when creating a federal crime. Thus, examples of federal crimes include mail fraud (postal power), anti-racketeering crimes in RICO (commerce power), and tax evasion (tax power), all of which could be implicated in more serious drug cases like a conspiracy or criminal enterprise case. Punishment for federal crimes is governed by the federal sentencing guidelines, which are based on a table incorporating two elements: the offense level and the offender’s prior criminal history. There are forty-three offense levels listed in the guidelines, with a base offense level established for each federal crime, plus calculations for increasing or decreasing the base level depending on individual characteristics of the crime.

The sentencing guidelines are constantly being scrutinized and revamped. In 2000, amendments were made to the guidelines in a number of areas including changes with regard to sentencing for methamphetamine possession. The guidelines have met with significant criticism for their imposition of “mandatory minimum” sentences. Many members of the public, and some members of the judiciary, feel as though the guidelines are too confining and do not allow for the appropriate consideration of factors and for the appropriate imposition of penalties.

Finally, much of criminal procedure is determined by the requirements of the Constitution. First and foremost, the Constitution requires that every person receive due process of law before his or her life or her life, liberty, or property can be taken. The Due Process Clause is the basis for the requirement that crimes be clearly defined and that the government must prove every element of the crime beyond a reasonable doubt. The Fourth Amendment protection against unreasonable searches and seizures is the basis of the exclusionary rule that keeps illegally seized evidence out of a criminal trial, and the Fifth Amendment’s bar on self-incrimination gives offenders the right to remain silent and to choose not to take the stand in their own defense. The Sixth Amendment guarantees the accused a right to an attorney who is allowed to be present at all stages of the criminal proceeding, including during a custodial police interview. And the Eighth Amendment bans cruel and unusual punishment and has been used to invalidate harsh sentences and prevent abuses of prisoners.

There are ninety-four federal district courts that have original jurisdiction over cases involving federal crimes as well as over various types of civil cases. Eleven courts of appeal hear appeals from the individual district courts. The United States Supreme Court can review cases from the federal courts of appeal and state supreme courts.

Drug crimes can be charged and prosecuted under either federal or state law, or, at least theoretically, both. An attorney experienced in criminal law can explain the intricacies of both judicial systems and zealously represent persons charged under either scheme in the appropriate court.

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The Fourth Amendment of the Constitution protects an individual against unreasonable searches and seizures of his or her person or property. A search may involve an inspection of the person or his or her surroundings or property, and seizure refers to taking the person or property into police custody. Usually, but not always, if a seizure is invalid, it is because the seizure was preceded by an invalid search.

In many drug cases, the arrest and evidence used to support a conviction generally results from a search and seizure. If the constitutional limits were not applied to the government’s conduct, however, the evidence may be deemed inadmissible and the charges may be dismissed or unprovable. An experienced criminal defense attorney can advise his or her clients on whether the evidence leading to a drug charge may have resulted from an improper search or seizure and answer all other questions regarding the criminal justice process in drug cases.

Searches
A “search” does not technically take place unless the investigation intrudes on a person’s privacy. Thus, there generally is no search if the police find a bag of drugs lying on the sidewalk or hanging out of someone’s pocket. On the other hand, if they look in a bedroom drawer to find the same bag of drugs, that conduct will generally be deemed a search. The distinction lies in the “reasonable expectation of privacy” involved. If someone has a reasonable expectation of privacy in an area of his or her person or property (such as in a house or vehicle), police investigation of that area is deemed a search. If there is no such expectation, or if the expectation is not reasonable, no search has been conducted for constitutional purposes.

Searches conducted pursuant to a judge-authorized warrant are generally deemed reasonable unless the warrant was improperly obtained. A search warrant must describe the area to be searched and what the police are searching for. The search must be reasonable in relation to the evidence sought. For example, if the police claim to be searching for a car, they can look in a garage but will not be able to look in a toolbox in the garage. Evidence gathered pursuant to a proper search can generally be seized if it relates to the crime being investigated.

Searches can also be valid if they are done with the consent of someone who has control of the property, which need not be the owner. During an arrest, however, consent to a search is not necessarily required; police can search the arrestee and the immediate surroundings for weapons or evidence that might be destroyed. Following similar reasoning, police may search without a warrant when the search is necessary to protect against destruction or removal of evidence. This is a commonly used exception to the warrant requirement. Police may also conduct searches to protect the public from imminent danger, such as the planting of a bomb, or to search for fleeing criminals.

Seizures of Persons
There has been considerable litigation involving when the government (usually the police) can restrict someone’s movement, or “seize” them. Police interactions with individuals may range from an investigatory stop to a full-blown arrest. The more freedom retained by the person when the police interact with him or her, the lower the level of suspicion required for the police to engage in that interaction. For example, if police merely stop someone to ask questions, all that is usually required is that the police have a reasonable suspicion that a crime has occurred or that the person is in need of assistance. If there is no control and a person is really free to leave, there is no seizure. However, in many instances in which the police stop a person, that person has a reasonable perception that he or she is not free to leave.

If a person is subject to seizure, such as an arrest, that seizure can, like a search, be made pursuant to a warrant. Since a warrant is a court order authorizing an arrest or search, when there is a warrant the seizure is presumptively valid. The presumption of validity can sometimes be overcome, however. For example, a warrant may be invalid if it was obtained on the basis of false or misleading statements to the judge. If the police did not have a warrant, the burden is on them to show that the circumstances justified the seizure. In most instances, the police will have to demonstrate “probable cause,” that is, a reasonable belief that a crime had been or was going to be committed and that the person seized was involved in the crime.

If an arrest or other seizure of the person is invalid, the person must be released. If the police obtained evidence as a result of the invalid arrest, the government may also be prohibited from using that evidence at the person’s trial based on the “exclusionary rule.” This rule also applies to evidence that was obtained as the result of an invalid search.

The police may legitimately search persons and property, and seize both persons and property, either with or without a warrant if the circumstances justify their actions. If they act without probable cause, however, or exceed constitutional limitations on their actions, both searches and seizures may be deemed invalid and any resulting evidence may be tainted and thus inadmissible. If you have been charged with a drug-related crime and have questions about whether the police may have violated your search and seizure rights, contact a knowledgeable criminal defense attorney now.

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