In any drug case, the prosecution must prove, at a minimum, that the defendant 1) knowingly and 2) intentionally 3) possessed 4) a controlled substance. Beyond possession, one might be charged with possession with intent to distribute, distribution, or trafficking. Trafficking is the most serious drug charge with the greatest penalties and is charged when someone is accused of knowingly and intentionally “manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or by bringing in the Commonwealth” a pre-determined quantity of a controlled substance. For heroin or cocaine, there must be 18 or more grams of the substance. For marijuana there must be 100 pounds or more of the substance. All drug convictions can have enormous consequences beyond the actual sentence or probationary period imposed including the loss of one’s driver’s license, ineligibility for public housing, and immigration ramifications. If you have been accused of a drug crime, please contact me to discuss your case.
Common Defenses in Drug Cases
There are two ways to possess something: actual possession and constructive possession. The defense that the accused did not possess the drugs is most often used when the contraband is found hidden in a nearby location, thus requiring the Commonwealth to establish “constructive possession” to prove its case.
No Intent to Distribute
The lack of intent to distribute is most commonly used when there isn’t a large quantity of narcotics involved. In an easy case, the accused will also be found with drug paraphernalia like rolling paper or needles in his possession but the absence of these items doesn’t mean that s/he intended to sell. The absence of tools associated with drug distribution like scales and extra packaging materials can also be used to show lack of intent to distribute. In cases where a police officer is permitted to testify that the amount of drugs found on the accused is simply too high to be consistent with personal use, arguments about buying in bulk to save money (the “Costco defense”) are helpful and it may be useful to call an addiction treatment provider as a witness to explain the obvious fact that serious addicts use large quantities of drugs to get their fix
No Distribution Occurred
When the alleged distribution involves your client selling to another civilian, including a confidential informant, the alleged buyer is unlikely to be a witness against your client at trial. The testimony will be limited to the observations of law enforcement agents not directly involved in the alleged transaction. In those situations, aggressive discovery practice is imperative to learn as much as you can about the surveillance and the informant (if applicable). If the sale was made to an undercover government agent who is available to testify, a viable defense is “entrapment.”
The Substance Is Not a Controlled Substance
To convict a defendant for any drug offense, the Commonwealth must establish beyond a reasonable doubt that the substance in question was a controlled substance, as defined in G.L. 94C. There are three ways that the Commonwealth typically uses to prove the identity of a substance: 1) a drug chemist testifying about lab analysis of the substance; 2) a police officer testifying that he can identify the substance based on visual clues; and 3) a police officer who performed field testing on the substance.
Challenging a drug chemist who has analyzed the substance using Gas Chromatography/Mass Spectrometry is unlikely (but not impossible) to be successful. If the Commonwealth attempts to prove this element through a police officer, either through visual identification or field testing, then this line of defense has a much higher likelihood of success.
The Bowden Defense: Government’s Failure to Properly Investigate and Prepare its Case
A Bowden defense is an attack on the partiality and thoroughness of the government’s investigation and preparation of the case against the defendant. In Commonwealth v. Bowden, the Court made clear that defense counsel has a right to inquire as to the government’s failure to employ certain investigative techniques or scientific tests. A well raised Bowden defense allows the defense attorney to argue at closing that further testing and investigation would have revealed your client’s innocence and led to the capture of the real perpetrator. A Bowden defense can be used in conjunction with other defenses or on its own.
Challenging Expert Witnesses in Drug Cases
Expert witnesses are witnesses with specialized knowledge who are permitted to give opinions in court based on their expertise. Expert witnesses must be called in even the most basic district court drug cases. In a typical drug case, the prosecutor must call a chemist or alternate witness to identify the actual substance and may also call additional witnesses who proclaim to have expertise on drug consumption rates, street value of drugs, methods of packaging for distribution, and characteristics of a drug sale. These so-called experts must be challenged vigorously before trial and during trial. I not only have extensive experience handling expert witnesses, but I also lecture extensively to lawyers teaching them what to do when facing a drug chemist or other types of expert witnesses. I have lectured for the Committee for Public Counsel Services, Massachusetts Continuing Legal Education, Middlesex Defense Attorneys, and the Greater Lowell Bar Association on confronting drug chemists at trial. When lawyers across the state have questions about their drug cases, they call me. I invite you to do the same.
Learn more about marijuana defenses.
If you have been charged with a drug offense you need a lawyer with the knowledge and experience to beat the charges. Please contact me for a free consultation.