That’s why it’s important to get an experienced defense attorney. There are defense attorneys that specialize in drug possession cases. After you’re arrested, your lawyer can see you through your arraignment and the initial case negotiations. They can discuss with you the gravity of the situation, your circumstances, and your options going forward. They will counsel you regarding what they think is the wisest decision. Ultimately, they’ll also work according to your best interest. The two of you can settle on a defense strategy together.
How Law Enforcement Determines Charges
The specific law enforcement entity will vary depending on the circumstances. In most New York cases, the NYPD or a local police agency is responsible for deciding what you’ll be charged with. New York City has police forces that operate differently from law enforcement entities outside the urban area. In more rural upstate towns, the police are responsible for drafting the written criminal complaint about the defendant.
The police will decide on the preliminary charges based on the evidence they’ve gathered in their investigation. When an officer arrives to arrest you, they’ll tell you what you’re being arrested for. Then they’ll explain your rights. You should keep silent aside from telling them that you’re using your right to legal counsel. When you talk to the police without your lawyer present, you’re just giving them more evidence for the case they’re building.
The charges you’re read during your arrest might not be the official charges brought against you in court, though. When it comes time to prosecute, the District Attorney’s office is responsible for leveling charges. They will decide what to charge you with based on how capable they believe they are of proving these particular crimes. In state court proceedings in New York, your official charges won’t be known until your arraignment. If you’re being tried at the federal level, the same is true, but the United States Attorney is the office responsible for the charges.
If a person has been charged by the police with felony crimes, but the prosecutors are still settling on the official charges, a grand jury will determine whether the prosecution has presented compelling enough evidence to try the defendant for the felonies. This is called an indictment. A crime doesn’t have to be proven beyond reasonable doubt for a grand jury to indict; it just needs to be a reasonable possibility.
Elements That Must Be Proven by the Prosecution
A prosecutor has to prove every element of the crime when prosecuting an individual for drug possession with the intention to distribute. They must provide evidence that is more compelling than just circumstantial facts. To convict an individual of this crime, they must convince the judge and potentially jury that there is no way the defendant could be innocent.
The first element that the prosecutor must prove is that the person was in knowing possession of a controlled substance. If the person was caught with the substance on them, this element can be fairly easy to prove. But the prosecutor must also prove that the individual was aware of what the substance was and that it was illegal.
The second element that must be proven is that the person intended to distribute the illegal drugs. Police will sometimes bring charges of intent to distribute against a person if they have a quantity of drugs that seems too high for one person to consume. But the prosecution needs to have more concrete evidence than that if they want the charge to stick. They need to provide evidence through drug paraphernalia, witnesses, electronic communications, or digital records that the individual had plans to distribute the substance. Police officers may try to solicit a drug deal from the defendant when working undercover; if the defendant sells them drugs, this can be used as evidence against them.
There’s also a type of drug possession that doesn’t mean physically possessing a substance. This is a concept called constructive possession. A prosecutor can establish constructive possession if they can prove that a person had power and control over all the drug trafficking within a certain area.