Drug Possession Cases and Defenses

John Maher: Hi! I'm John Maher. I'm here with Ted Lothstein of the Law Office of Lothstein Guerriero with offices in Concord and Keene, New Hampshire. Lothstein Guerriero represents people charged with crimes throughout the State of New Hampshire in both state and federal court, in trial courts and on appeal.

Today, we're talking about drug possession cases and defenses. Welcome Ted.

Ted Lothstein: Thank you. Glad to be here.

What is drug possession?

John: Ted, what is drug possession in terms of drug laws?

Ted: First, we have to look at the two words, drug and possession. We also have to look at the different jurisdictions that might be involved. I'll do those in reverse order.

A person who is caught with illegal drugs or is going to be prosecuted for possession of illegal drugs can be prosecuted in either state court in New Hampshire or federal court.

It's the federal government that has a table, a schedule, of different drugs that are called “controlled” drugs. Those are the drugs that you can't get either without a prescription or you can't get at all because they're in “schedule one” and their possession is prohibited for any purpose.

And then the State, the State of New Hampshire, also criminalizes the possession of many different controlled drugs. There, you have two different jurisdictions that could prosecute you if you were in New Hampshire and the government believed that you were in possession of drugs.

To further answer your question, I have to explain what we're talking about. We are only talking about controlled drugs. If you look at an over‑the‑counter substance, an uncontrolled drug, like Tylenol, it certainly is not a crime to possess something you can buy over the counter. Only drugs that are controlled by the state or federal government are drugs where it might be illegal to possess them.

The other part of what you asked about is possession. We'll talk about that more, but the question will be, “what does that mean? What does it mean to be in possession of something?”

Drug Possession Vs. Possession of a Controlled Substance

John: Is drug possession, then, the same as possession of a controlled substance, or how is that drug charge described in New Hampshire law?

Ted: It's the same for purposes of what we're talking about here. Like I said, you can't be prosecuted for possessing a substance that's not controlled by some regulatory authority. If it's an uncontrolled substance then it's just, we'll say a "Twinkie." You can go to a store and buy Twinkies.

Anybody can buy Twinkies. You don't need a license or certain permission from the government to have it. There's no limit on how many Twinkies you can possess. It's an uncontrolled substance. We are only talking about controlled substances.

Drug Possession Laws by State

John: Is there some variation in drug possession laws by state? Are there specific rules that defendants should know about in terms of drug possession laws in New Hampshire?

Ted: Absolutely. Some of the things that come up are not necessarily specific to New Hampshire, but I think there might be different rules in some other states.

Number one, a lot of clients or potential clients will ask me, "The police found a bowl in my car but nobody smoked marijuana out of that bowl for a long time. There's nothing left in the bowl. Can I really be prosecuted for that?" What they're really asking is, “is there some minimum amount of a substance”? In this case, we're talking about the illegal substance THC. “Is there some minimal amount of the substance that's necessary? Does it have to be a usable amount, enough for a person to actually smoke and potentially get high?” The answer is "no”.

Any amount of substance, no matter how miniscule, if the state laboratory, the forensic laboratory in New Hampshire, can scrape it and test it and find the presence of THC, the person can be prosecuted.

That's one thing that may be different from other states. There's no minimal quantity necessary. The substance can already be burned up. It doesn't have to be something that's still usable as a recreational or therapeutic drug.

One thing that's certainly different from our neighboring state or Commonwealth, the Commonwealth of Massachusetts, New Hampshire has a separate crime under the Motor Vehicle Code for possession of a controlled drug in a motor vehicle.

That separate crime, unlike the usual drug crime that's used to prosecute people for controlled drugs in New Hampshire, if you're prosecuted for the separate crime of possession in a motor vehicle, then not only do you face the potential consequences of a criminal prosecution, which can include jail time or probation if it's a Class A misdemeanor or felony, but you also face a mandatory loss of license of 60 days.

This can be a rude to awakening for people, in my example, from Massachusetts, where marijuana is still illegal as far as I know, but it's not a separate offense to have it in your car, and you don't lose your license for having it in your car.

Consulting a Criminal Defense Attorney

John: OK. That's an important distinction. At what point after a person is arrested for drug possession should they consult a criminal defense attorney or a drug possession lawyer?

Ted: I recommend that people consult a lawyer before arraignment. Instead of putting it as a certain number of days or weeks or whatever after arrest, I think the important next juncture to look at is “when is the arraignment”?

It's very important for people to listen to this and understand. If you're being prosecuted for driving under the influence of drugs, there's a whole bunch of different considerations.

If you're prosecuted for DWI under the influence of drugs in New Hampshire, there's a whole different set of considerations.

I'm only talking about people who are being prosecuted for possession of a controlled drug. That's our topic for today. For those people, you should consult with a lawyer before your arraignment.

Arraignment is your very first court appearance. The paperwork that the defendant will get from the police officer doesn't say the word "arraignment".

It just identifies a day and time and location of a court that you have to go to. That is your first court appearance. That is your arraignment.

The purpose for the arraignment, legally, is limited to the judge or clerk advising you as to what the charge or charges are and advising you if you have a right to apply to a court‑appointed lawyer if it's that type of serious defense, and also either setting bail and bail conditions or looking at whether the present bail and bail conditions are reasonable.

In a vast majority of cases, at arraignment, the judge leaves the present set of bail conditions alone. It doesn't change that.

The reason that you would want to consult a lawyer before arraignment is that there may be some ways to deal with your case that can only be dealt with by a lawyer at arraignment.

The example I like to use is that there's a lot of different places in New Hampshire where the arraignment prosecutor is a different person than the prosecutor who'll handle the case for a trial.

If you don't go in and begin to advocate with the person who is the arraignment prosecutor, you may lose an opportunity to get a good outcome for your case and then find out that your case has been handed over to a different prosecutor who perhaps is not as understanding of your situation.

That's the primary reason why I urge people to consult with a lawyer before their arraignment.

The other reason is that they might go to their arraignment and get talked into something that seems good, but a lawyer might know from lots of experience in that particular court building and with that particular prosecutor or that particular police department, the lawyer might know that a better outcome could have been achieved over time.

Drug Possession Defenses

John: Say you've been charged with drug possession and your case is going to trial. What drug possession defenses are most often successful?

Ted: By far the most often successful defense is persuasion. Many people who are charged with drug possession, it's their first offense, or their first offense in a long time, or it happens in a point in time where otherwise they've got a lot of good things going for them—maybe they just got a new job, which is the best job they ever had. Maybe they're a star student—I don't want to say "star student"—maybe they're enrolled in college and the person is a good student, and is making her way towards a good career, and a conviction can potentially impede that.

Persuasion is all about—I want to learn as much as I can about my clients. I talk to them. I talk to their family members.

I get them to provide character references from people that they're close with. I use these materials to try to persuade a police officer and prosecutor that this person should not be convicted whether or not they made a mistake.

Persuasion's important whether the person is innocent, or guilty, or somewhere in between.

Whether or not the person made a mistake, a police officer, a prosecutor, can often be persuaded that this person should be given some alternative disposition, that it's not necessarily to convict them to get them...to make sure that the public is protected and that particular person will not re‑offend.

I get my clients to do substance education programs online if I know that this particular prosecutor or the judge in that court is moved by that.

I get people who do have substance abuse problems to get some treatment and bring that to the prosecutor's attention. In a lot of cases, it's not just for people who are in trouble for the first time.

In a lot of cases, persuasion ends up helping the person avoid a conviction altogether or helps them obtain an outcome to a much less serious offense, perhaps helps them avoid a felony prosecution.

You asked about defenses, and most people don't think of persuasion as a defense. It's probably the best defense. But in terms of legal defenses, I would say that the most often successful is a motion to suppress.

A motion to suppress is a pleading paperwork, filed in court, making the argument that certain evidence in a case should be suppressed, which means not allowed into evidence at trial at all, based on the fact that the way that the evidence was obtained by the police or by a public official violated the client's, the defendant's, constitutional rights.

That can be under the state constitution, like we talked about, or could be under the federal constitution, the United States constitution.

Usually they're litigated under both, because those two different constitutions offer overlapping protections. There are some situations where the federal constitution may provide a better anchor for your legal argument.

There are other situations where the state constitution may provide more expansive rights of privacy.

The classic motion to suppress, just to give you some examples—a police officer stops a car without having reasonable suspicion that that car was violating the rules of the road or that the driver was committing some kind of crime. The police officer asked the person to get out of the car without having any reasonable suspicion to justify extending a detention.

In other words, the person is already pulled over, that doesn't mean the officer can necessarily get them out of the car and talk to them by the side of the road.

The officer searches a car, or a home, or a person's clothing, their person. Those are examples of searches and seizures that, if unreasonable and without a warrant, may violate the constitution.

We find those to be probably the best legal defense, first of all, because it happens a lot. There are many, many different constitutional rules that police officers have to follow.

Police officers and other law enforcement officials often fail to follow all the rules, and also because this particular defense works whether the person is guilty or not guilty.

To understand that, think about a person who's driving with a friend to go skiing. In scenario one, that person doesn't know that their friend shoved some marijuana in the glove box after seeing blue lights come on because the driver was speeding.

In scenario number two, the driver and his friend were sharing the marijuana and shoved it in the glove box by mutual agreement to try to hide it from the police officer.

If the officer does an illegal search of the glove box and finds the marijuana, I think that most of my listeners without understanding the law would know that in scenario one, the driver's not guilty because he didn't know about the marijuana. It's not just that it's not his. He didn't even know about it.

Scenario number two, the driver's guilty, but either way, if the driver's exercising control over the car, it might be his car or it might not be, but the point is that the driver has standing under the constitutions to argue that the search was illegal whether the driver is innocent or guilty.

Obviously, we love a defense that works whether you're innocent or guilty. Other types of defenses are different in that they have to do with whether the person is innocent or guilty.

The next most often successful defense, I think, based on my experience litigating these cases in New Hampshire courts for about 20 years, I'd say that the next most likely defense to succeed is the defense that the defendant did not knowingly possess the controlled drug.

To understand this, you have to break down a bunch of different concepts. One is that every crime has an act and a mental state.

The act is possessing a controlled drug. The mental state is knowing about it. We already talked about a scenario where a person can kind of possess a controlled drug and not know it.

You're driving your car. It's your car. It's registered to you. You don't know that there is marijuana in a glove box. Is that possession?

It turns out that even putting aside the mental state issue, the "knowingly", that also may or may not be possession, because possession is defined as custody or control. A lot of times, clients, especially young clients say to me, "Well, it wasn't my weed."

But when I talk to them further, I learn that he and his friend bought the marijuana together, made a decision to bring it in the car together, smoked the marijuana at some point during their road trip together.

The fact that, technically, the passenger, the friend, actually paid for the marijuana and intends to keep whatever is left of it—that is a situation where, unfortunately, that driver is not an innocent driver because it’s "not his" marijuana.

John: It doesn't just have to do with who paid for it. It's a little bit more nuanced than that.

Ted: It doesn't have to do with who paid for it. It doesn't have to do with who owned it. What it has to do with is having custody or exercising custody or control.

So if I know the marijuana is in the glove box and I get behind the wheel and I start the engine and I drive a block, I have definitely exercised custody and control over the marijuana. I've moved it from one place to another. I think that in lots of cases, the reason why this may be a good defense, and by the way may be a good defense even if the person is 100 percent guilty, is that a lot of times in these cases, first of all, they often do occur with motor vehicles.

A lot of times, the driver is not the person who actually has the marijuana or the cocaine or whatever the drug is in her pocket or her purse. It was found somewhere else in the car.

Then the defense is going to be that the state can't prove beyond a reasonable doubt that the driver knew that the drugs were in the car. Let's say in truth, in reality, if we have access to everyone's knowledge in that car, then there's no doubt that the driver knew.

Let's say that if we can get the friend on the stand, the friend would have to truthfully testify, sort of the story I said before, you know – they bought it together and they smoked it together. However, we have to remember that in court, the government has the burden to prove beyond a reasonable doubt, and prosecutors and police officers make mistakes. Maybe they'll fail to subpoena that passenger.

Maybe they'll fail to prepare their case properly. If they don't have the passenger, my clients will say to me, "Yeah, but my friend told the officer that it was mine."

That's hearsay. That's not going to come into evidence. If they don't have that passenger, and all they have is evidence that the drugs were in the console, in the glove compartment, or under the passenger's seat, or in the trunk, it may not be enough to prove beyond a reasonable doubt that the driver, the defendant, knew it. I would say that that's the third most likely successful defense.

The last defense is...I'm not even sure if I would call it a defense, as much as the luck of the draw. But in every drug case, a lab analyst has to come to court and testify the substance seized does contain a controlled substance. It's not enough to just show a bunch of green stuff to the judge, even if the judge went to college and knows that it smells like marijuana and looks like marijuana.

That's not enough. There has to be a lab analyst to testify that they used something like a gas chromatograph or other sophisticated testing technology to determine the presence of the controlled substance.

The last defense is that sometimes—I said that it was sort of the luck of the draw—sometimes the government fails to get to the lab analyst in court. Then they can't prove their case, no matter how guilty the person is.

John: That's interesting. If they can't get the lab analyst in court to prove that it's actually a controlled substance, they can just say it might not have been a controlled substance. It might have been something else, so they just want to throw out this case.

Ted: That's right. There might be exceptions to that. If it looks and smells like marijuana and the defendant confessed, "Yes, that's marijuana." For some judges, that might be enough.

Most New Hampshire judges are going to require the testimony of a lab analyst to prove that there was the presence of THC.

Problems in Prosecution of Drug Possession Cases

John: What types of problems can occur for the prosecution in drug possession cases?

Ted: The discussion we just had identified a lot of the possible problems. One classic problem is the prosecutor just reads the police reports and says, "Oh, OK, this guy is guilty," then doesn't do the necessary preparation to make sure that they can prove guilt beyond a reasonable doubt.

In other words, getting every witness that needs to be, lined up and subpoenaed for the correct court date. Making sure that the officer is aware of the correct court date and available, and the officer will attend. Making sure the lab analyst is subpoenaed and available for that court date.

Preparation problems are probably number one for what can impede the prosecution in these cases. Believe it or not, we do have cases that are similar to the fact I've described where the police officer doesn't even obtain all the contact information to the other people in the car.

Now they can't be subpoenaed, so there are investigation problems. The officer may not be aware of the Rules of Evidence, may feel that the fact that the other passengers told the officer that it's Johnny's marijuana, that that's enough.

Again, the hearsay rule is going to preclude that testimony from being offered in court, so investigative problems can upend the prosecution in drug cases.

Another potential problem is that the government does have to show some chain of custody. What we're talking about here is that marijuana is seized from something—the driver, the defendant who is sitting on the passenger's seat, somewhere in the car, in the luggage, in somebody's purse.

Then that officer takes it back to the police department and locks it in an evidence locker. Then it may change hands to a different officer who brings it to the forensic laboratory. At the laboratory, one or two different people will handle it in the process of storing and testing it.

Then it's going to come back, make its way back through another officer, or one of the same officers we talked about before, so that it can be courtroom evidence.

It's not true that to prove guilt beyond reasonable doubt under the New Hampshire law, that the government has to have every single one of those people testify in court.

But it is true that the government has to show the judge that there is a reliable chain of custody, that we can be sure that the substance that was tested at the forensic laboratory is actually the same green stuff that the officer seized from the defendant, or otherwise seized from the investigation.

John: OK, Ted Lothstein, thanks very for speaking with me today.

Ted: Thanks very much for speaking with me, John, it was great.

John: And for more information, you can visit the Lothstein Guerriero website at lothsteinlaw.com or call Ted at 603‑513‑1919.

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