If you have been charged with a prescription drug offense you may be able to get the charge dismissed. Every criminal defendant is entitled to challenge the charges against him or her. A defendant may request that the judge dismiss or reduce the charges. A criminal defense attorney should determine whether there are any grounds on which the case could be dismissed before a plea or trial. Some grounds for dismissal include:
- Not Enough Evidence
- No Actual Possession
- No Constructive Possession (knowledge & control)
- Illegal Search and Seizure
- Prescription Defense
Not Enough Evidence
Every criminal charge has elements or things that the state must prove to get a conviction. The state must prove each of these elements. If the state cannot prove one of the elements the judge must dismiss the charge.
No Actual Possession
Possession is an element of a drug charge. If the police find a bag of prescription drugs under a rock in the park they cannot legally arrest a person standing ten feet away because that person does not have actual possession of the drugs.
No Constructive Possession
When illegal drugs are found in a place where more than one person has access, the state must prove that the person charged with possession of the drugs had knowledge and control of the drugs. The state must prove that the person charged knew that the drugs were there and was able to control them. For example, if you are in the living room of a friends home and the police find prescription drugs in a locked safe in the bedroom, the police cannot legally arrest you unless they have evidence that you knew that the drugs were there and were able to get into the safe and control them.
Illegal Search and Seizure
The police need more than a hunch before they can stop and detain a suspect. An officer cannot stop a vehicle or a person unless he observes a traffic violation or unless the officer has a reasonable suspicion that a crime has been committed and that the suspect committed it. A police officer is not allowed to enter an automobile or home without a warrant or probable cause. For example, an officer cannot stop a vehicle because he thinks that the vehicle is speeding. The officer must have some evidence, like radar, before he can legally stop a vehicle for speeding. An officer cannot enter a home without a warrant. If the police illegally stop and search a vehicle, or a home, any evidence found must be suppressed, which means that the evidence cannot be used in court.
The police cannot convince a person to commit a crime when that person is not likely to commit that crime in the first place. The police are not allowed to create a crime and then arrest a person for committing the crime that the police made happen. For example, the police arrest a woman for possession of prescription drugs and tell her that she is going to prison for a long time unless she informs on someone else. The woman introduces her boyfriend to a friend (an undercover officer) and asks him to find some prescription drugs for her friend. The boyfriend wants nothing to do with it and says no. The police put more pressure on the woman. The woman tells her boyfriend that if he does not find some prescription drugs for her friend she will break off their engagement. The boyfriend goes out and finds some prescription drugs and sells them to the woman’s friend (undercover officer). The boyfriend is arrested for trafficking in prescription drugs and the woman get probation.
The state cannot convict a person of possession of prescription drugs if that person has a legal prescription for the drugs.
If you have been arrested for illegal prescription drugs, you may be facing a long prison sentence. Not every attorney has the qualifications and experience to handle a prescription drug charge.
If you or a loved one need legal assistance getting a prescription drug charge dismissed call Tampa Criminal Defense Attorney Daniel J. Fernandez of Fernandez & Hernandez at 813 229-5353.