Drug charges are serious, and demand a serious defense. A conviction often carries the risk of years of incarceration. Fortunately, there are numerous ways to protect your liberties and defend your rights. The Philadelphia criminal defense attorneys at Montoya Coleman Refuse to Lose.

Possession of a Controlled Substance

The law governing Possession of a Controlled Substance is 32 P.S. § 780-113(a)(30). It is also commonly called Simple Possession. In order for a defendant to be convicted, the government must prove: (1) possession of a (2) controlled substance.

  1. The defendant must possess the drugs. This is simple when the drugs are found in the defendant’s actual possession – in their hand or pocket. However, the defendant can also possess drugs through “constructive possession.” This is where the defendant has dominion and control over the drugs, even if they are not actually in his hand. This means that the defendant knows where the drugs are, and has the ability to exercise control over the drugs. This is commonly seen when drugs are found in a car the defendant is driving, or in a house that the defendant lives in.
  2. The alleged drugs that were recovered must be defined as a controlled substance under the law, which is confirmed by a laboratory analysis.

A conviction for Possession of a Controlled Substance is an ungraded misdemeanor, and the first conviction carries a penalty of up to one year incarceration. A subsequent conviction carries a penalty of up to three years incarceration. However, where the drug was under thirty grams of marijuana, the penalty is up to thirty days incarceration.

In addition, a conviction for Possession of a Controlled Substance requires a driver’s license suspension.

Possession with the Intent to Deliver

The law governing Possession with the Intent to Deliver is 32 P.S. § 780-113(a)(30). In order for a defendant to be convicted, the government must prove: (1) possession, (2) of a controlled substance, (3) with the intent to deliver it.

  1. The defendant must possess the drugs. This is simple when the drugs are found in the defendant’s actual possession – in their hand or pocket. However, the defendant can also possess drugs through “constructive possession.” This is where the defendant has dominion and control over the drugs, even if they are not actually in his hand. This means that the defendant knows where the drugs are, and has the ability to exercise control over the drugs. This is commonly seen when drugs are found in a car the defendant is driving, or in a house that the defendant lives in.
  2. The alleged drugs that were recovered must be defined as a controlled substance under the law, which is confirmed by a laboratory analysis.
  3. Finally, the defendant must have had the intent to deliver the drugs. This can be proven a number of ways. The most common method of proof is when a police officer sees the defendant sell the drugs to someone. The government can attempt to prove delivery through other circumstances – such as the number of drugs, the amount of money, and/or the paraphernalia possessed by the defendant. For example, a defendant could be convicted where he is in possession of pounds of marijuana, tens of thousands of dollars, and empty packaging,

A conviction for Possession with the Intent to Deliver is an ungraded felony and the penalties may be severe – depending on the type and weight of the drug. The first Possession with the Intent to Deliver marijuana conviction carries a penalty of up to five years of incarceration, while the same conviction where the drug is heroin carries a penalty of up to twenty years incarceration. In addition, all Possession with the Intent to Deliver convictions require driver’s license suspensions.

Criminal Use of a Communication Facility

The law governing Criminal Use of a Communication Facility is 18 Pa.C.S. § 7512. In order for a defendant to be convicted, the government must prove: (1) use of a communication facility (2) to facilitate the crime of Possession with the Intent to Deliver.

  1. The defendant must have used a communication facility. A communication facility is defined as an instrumentality used in the transmission of data – such as a computer or a telephone.
  2. The defendant’s use of the communication facility must have been to facilitate the crime of Possession with the Intent to Deliver. This is most commonly seen when the defendant is using a cell phone in order to sell drugs.

A conviction for Criminal Use of a Communication Facility is a felony of the third degree and carries a penalty of up to seven years incarceration.

Defending Drug Charges - Motions

At a preliminary hearing, the government must prove that it was more likely than not that the defendant committed the crimes charged (more than 50%). The court must view the evidence in a light most favorable to the government, give the government all reasonable inferences, and may not make credibility determinations. Due to this very low standard, most criminal charges are held for court following a preliminary hearing. However, where the government failed to meet their burden, the defendant may request that the court dismiss criminal charges at the preliminary hearing.

If the court refuses to dismiss criminal charges at the preliminary hearing, the defendant may file a Motion to Quash requesting that a higher court dismiss the charges due to insufficient evidence. The higher court will review the evidence that was presented at the preliminary hearing to determine whether it was more likely than not that the defendant committed the crimes charged. The government may also supplement the record by presenting new evidence at the Motion to Quash hearing.

Under Rule 600 of the Pennsylvania Rules of Criminal Procedure, the government must bring the defendant to trial within 365 days of the date that the criminal complaint was filed. However, the government only has 180 days in Philadelphia Municipal Court. Excluded from this time are delays attributable to the defense, and delays where the government was “duly diligent.” The crucial issue for the court to determine is usually  whether the government was duly diligent. For instance, where the government was not ready for trial because a witness failed to appear, the court has to analyze whether the government was duly diligent in securing the witness’s appearance. If the court determines that the government was not duly diligent then the case will be dismissed.

The Constitution requires that all people, and their property, be free from unreasonable searches and seizures, and that warrants be supported by probable cause. With a Motion to Suppress, the defendant requests that the court suppress (or not allow) evidence to be used at trial that the police obtained in violation of the defendant’s constitutional rights. For example, a defendant may seek to suppress drugs that were obtained during a warrantless search of his car, or a statement that he made when he wasn’t read his Miranda warnings.

If, after a hearing, the court determines that the evidence was obtained in violation of the defendant’s constitutional rights, then the evidence cannot be introduced at trial. This often helps the defense’s case immensely as critical evidence cannot be used by the government.

A Motion to Reveal the Identity of a Confidential Informant requests that the court order the government to disclose the identity of a confidential informant that was utilized in the case. First, the defense must show that disclosure of the informant’s identity is material to the defense and that the request is reasonable. Then, the court balances factors to determine whether the need for disclosure outweighs the government’s privilege of keeping their informant confidential. These factors include: whether the informant is the only other witness other than police, whether there is other evidence corroborating the defendant’s guilt (such as recorded buy money or video surveillance), and whether there is a threat to the safety of the informant.

If the court determines that the necessity of the informant’s identity outweigh the government’s right to keep the informant confidential, then the government will be ordered to disclose the informant’s identity. This often results in the government withdrawing criminal charges instead of revealing the informant’s identity.

Defending Drug Charges - Trial

This defense is simply that the crime occurred, but the defendant is not the person that committed it. The areas where drug sales typically occur are residential and full of people both buying and selling drugs. It is possible that the defendant looks like the actual seller, or was caught in possession of the same types of drugs that a buyer was (so the police assumed that the defendant had sold it to the buyer). It is important that an experienced criminal defense attorney analyze identifying characteristics to determine whether there was a mistaken identification.

On the other hand, sometimes the police knowingly charge the defendant for the actual seller’s actions. These are some of the most difficult cases to win as the judge or the jury has to believe that the police officer is lying for some reason. In these cases, nearly every minor detail is of great importance as every inconsistency must be highlighted in order to impeach the officer’s credibility. The lawyers at Montoya Coleman are not afraid to call officers liars and expose their lies to a judge or a jury.

The lawyers at Montoya Coleman have secured many victories by showing that the government failed to prove the defendant possessed the drugs. This usually arises in “constructive possession” cases, where multiple people have access to the drugs. For example, the defendant is the front passenger in a car and, during a car stop, police recover drugs from underneath the defendant’s seat. The police will usually arrest both the driver and the passenger and let the courts figure it out. They may even exaggerate (lie) what they saw and claim the defendant was nervous and reaching underneath the seat. While this is unfair, it is common and, therefore, vital to have an experience criminal defense attorney ready to challenge the evidence.

It is a defense to a Possession with the Intent to Deliver charge if the defendant possessed drugs for personal use only. For example, if it was alleged that the defendant sold 5 purple packets of cocaine (worth $5 each), but was arrested with only $10 and red packets of cocaine, there should be doubt that the defendant sold drugs as the money and the packet colors did not match. The defense may also utilize a drug expert to testify that drugs were possessed for personal use and not for delivery.

The difference between convictions for Possession of a Controlled Substance and Possession with the Intent to Distribute can be huge as the penalties are vastly different. Most often Possession of a Controlled Substance convictions result in probation, while Possession with the Intent to Distribute convictions have a much greater chance to lead to incarceration.

Penalties for Possession with the Intent to Deliver convictions change drastically based on the weight of the drugs. Upon conviction, the judge or the jury will determine what amount of drugs should be attributed to the delivery, and what amount of drugs, if any, should be attributed to the defendant’s personal use.

For example, if the defendant is convicted of delivering pills, but has a drug addiction to the pills, the defense can argue that a certain amount of the pills should not be counted towards the Possession with the Intent to Deliver conviction. This can lead to a major reduction in the amount of time sentenced. The lawyers at Montoya Coleman will also utilize drug experts to minimize the defendant’s exposure and attain the best possible sentence.