What Is the Main Goal When Defending Against the DEA??

The DEA’s job is to investigate potential violations of the Controlled Substances Act and other federal drug laws. When the DEA investigates for potential criminal charges, the final determination on whether to pursue criminal prosecution rests with the federal prosecutor. The federal prosecutor, unlike a federal judge, does not make final determinations on legal motions, pretrial release, trial rulings, or sentencing. The prosecutor represents the United States in these cases and must prove each required element of the charged offense beyond a reasonable doubt. As a result, DEA defense counsel must be prepared to test each of those elements if necessary.

Because any information shared with federal investigators, even if it seems helpful at the time, can potentially be used to build a case against you at trial, DEA defense attorneys are typically careful to advise their clients not to speak with federal agents without their counsel present. Because these proceedings can present a variety of risks, making an informed strategic decision about how to move forward requires thorough experience with federal drug investigations. This can include experience with investigations targeting physicians and other healthcare providers for violations of the Controlled Substances Act, as well as individuals and organizations facing inquiries under the DEA’s administrative process.

While the primary goal in every case is to avoid federal criminal charges, avoiding prosecution is not the only concern during a DEA investigation. DEA proceedings can also trigger parallel inquiries with state licensing boards and even separate civil litigations or disciplinary action. In these cases, the ability to avoid or mitigate these risks while effectively defending against the DEA will require an experience-driven approach.

Because of the various legal and professional risks of DEA investigations, it is important to speak with a lawyer as soon as possible to discuss the specific details of your case. Once you have engaged defense counsel, your attorney can identify any immediate steps to take to protect your rights and make an informed strategic decision about how to move forward.

What Proof Must the Government Establish?

The most common approach for a DEA defense lawyer involves challenging the evidence the government has gathered in its investigation. Additionally, defense lawyers will often challenge the procedures and steps that DEA agents took during the investigation. Many DEA cases also involve challenges based on the government’s inability to prove the required intent to commit the alleged drug offense.

• Unlawfully-obtained evidence: The Fourth Amendment prohibits “unreasonable searches and seizures” by the government. If your DEA-related evidence was obtained through an unlawful search or seizure, your defense counsel may be able to file a pretrial motion seeking to have that evidence suppressed (or excluded). If you are not charged with any crime following the government’s investigation, then federal agents may only be able to use the evidence they have gathered for purposes of another criminal case, civil litigation, or administrative action.
• Unlawfully-obtained statements: The Fifth Amendment prohibits the government from compelling individuals to make incriminating statements. When individuals are subjected to custodial interrogation and are not properly advised of their rights, a resulting statement may be suppressed in a criminal trial. Additionally, DEA investigations involve numerous tactics designed to coerce individuals into providing incriminating information. If you or your family members have not provided any incriminating information to DEA agents, it is very important to avoid providing any statements to federal agents moving forward.
• A lack of requisite intent: Along with the other elements of a federal drug charge, the federal prosecutor must prove that the defendant had the requisite intent to commit the alleged drug offense. Depending on the specific facts of a case, this may involve proving “voluntary act” and “mens rea” in various contexts.
• No unlawful conduct occurred: One of the most important components of a federal drug conviction is showing a statutory element of unlawful conduct. Along with these elements, the federal prosecutor must also prove that the defendant had the requisite intent to commit the unlawful act.

The legal standard in federal drug cases is “beyond a reasonable doubt.” Although the government has the burden of proof, it is extremely difficult to win a DEA defense case once it reaches trial. The most favorable outcomes are usually secured before trial by challenging the government’s evidence, the procedures that DEA agents followed during their investigation, or any other important issues related to an alleged drug offense.

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How Can DEA Action Affect DEA Registration, Licensure, or Employment?

DEA registration is a requirement for all physicians and healthcare providers that prescribe controlled substances. DEA registration is not an isolated matter, and many DEA enforcement proceedings can have a variety of implications.

DEA-Registered Healthcare Providers

DEA-Registered healthcare providers can face DEA enforcement actions. DEA enforcement actions can lead to DEA registration suspension or revocation in some cases, as well as fines, other civil penalties, or even criminal charges. It is also possible that an unsuccessful DEA enforcement action could lead to a referral to a state licensing board.

• DEA Inspections: To conduct a DEA inspection, agents generally must obtain informed consent from the owner, operator, or agent in charge of the controlled premises or present an administrative inspection warrant. In some cases, DEA agents may have other avenues to obtain access, and DEA defense attorneys advise providers and facilities not to voluntarily allow agents to enter their offices or medical centers. DEA defense lawyers may file an administrative action to challenge the DEA’s authority to inspect or attempt to limit the scope of the inspection.
• DEA Registration Denials: A DEA registration may be denied for a variety of reasons, including providing false information on a registration application. DEA registration may also be denied if you have been convicted of a felony, and potentially if you have been excluded from a state-administered Medicaid program or other state program. The DEA also provides for a denial in cases involving other state-program exclusions and federal-program exclusions. Additionally, the DEA can deny registration if it is determined that registration is not consistent with the public interest. If the DEA issues a notice of registration denial or if you received the letter of denial or notice of denial, you can request a hearing.
• DEA Registration Surrenders: When asked to voluntarily surrender DEA registration, providers are not generally required to comply. There is no requirement for a voluntary surrender under any circumstances; and, instead, federal agents and federal prosecutors should be able to obtain a court or administrative order if they are able to prove that voluntary surrender is warranted.

When Does a DEA Defense Lawyer Choose Investigations, Suppression, Pleadings, or Trial?

In many cases, a DEA defense lawyer is able to prevent an investigation from becoming a federal criminal case. When necessary, he or she will negotiate to secure a favorable resolution that limits liability without the need for trial. The role of a DEA defense lawyer is to preserve his or her client’s liberty and professional status.

Guilty Plea

• With a guilty plea, the court may take the defendant’s admission of guilt into account, and the defendant may receive an acceptance-of-responsibility adjustment.
• Defense lawyers can negotiate the federal drug charges, the sentence recommendations from the government, and other outcomes. This can include attempts to negotiate reduced charges, sentencing recommendations that are more favorable, and alternatives to incarceration such as probation.

The choice to enter a guilty plea or seek a sentence recommendation from the prosecution is one of many strategic options available in a federal drug case. In some cases, a guilty plea is not advisable. In other cases, a guilty plea is not a viable option without an alternative outcome.

• If a defendant is convicted at trial, the criminal judge will consider the U.S. Sentencing Guidelines, along with the statutory sentencing factors, in imposing a sentence.
• Once again, if a defendant is convicted at trial, the judge will impose a sentence. A conviction at trial will mean the judge has no obligation to adhere to sentencing recommendations. It ordinarily will not allow for the acceptance-of-responsibility adjustment. With an exception for some favorable outcomes in trial, a conviction at trial is the most unfavorable result of all.
• While this is an option in many cases, taking a case to trial is generally avoided in some federal drug cases because of the risk involved.
• Trial involves a jury of your peers who will weigh in on your guilt or innocence. The federal judge is the presiding official who makes various rulings during the trial. The judge is also responsible for determining your sentence after considering the United States Sentencing Guidelines and the statutory sentencing factors if you are found guilty at trial.
• A target letter is issued when an investigated individual is deemed to be a potential defendant.
• When you receive a target letter from the federal government, it may be an invitation to participate in a prosecutor-supervised proffer.
• In a proffer, the prosecutor and the DEA will be interested in hearing your side of the story.
• During a proffer, you will likely be required to sign a proffer agreement. A proffer agreement, when properly drafted, can limit the government’s direct use of your statements, but its terms may permit derivative use or other specified uses in a later case.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.