Posted:
December 8th, 2012
Wisconsin law enforcement and courts take drug offenses very seriously. Those found guilty of these offenses can serve jail or even prison sentences. For instance, check out the current penalties for possession of marijuana.
However, just because you have been arrested and charged with a drug-related offense does not mean you will be found guilty. An experienced and knowledgeable attorney will challenge whether the State has enough legal evidence for the government to find you guilty. There are methods of challenging the legality of the State’s case. On drug offenses these challenges usually take the following three forms:
Challenge the Stop
In most cases, police come into contact with an individual while that individual is in their car or while the person is on foot. The police must have “reasonable suspicion” to stop a moving car. That means the police must have had a reasonable suspicion, which they can articulate, that there has been a traffic violation or crime committed or was about to be committed. The police sometimes make mistakes or they are unable to articulate what the violation or crime was that they observed. Wisconsin courts will look at the “totality of circumstances” when determining whether the police legally stopped an individual either in their car or on the street.
Challenge the Search
After a stop, or in some cases with a search warrant, the police will find drugs by searching a person, their property, car, or home. To search a person via a “pat down” or otherwise, the police must have a reasonable suspicion that an individual is armed. To search a car or home, the police must have probable cause (this is more evidence than a suspicion) that the location contains drugs or other evidence of a crime. Courts look at whether the police were “reasonable” in determining whether there was probable cause. Some searches can be done “incident to arrest,” but others require a warrant. Determining whether the police acted appropriately in an individual case requires a thoughtful attorney.
Challenge “Possession” at Trial
In Wisconsin criminal courts, the above challenges occur before a criminal trial. However, even if a challenge to evidence from a stop and search are unsuccessful, it is ultimately up to a jury to decide whether an individual was in “possession” of contraband. Courts have a long list of factors they can consider to determine whether a person possessed an item. At jury trial, an individual can offer explanations as to why they were in proximity to drugs. The government, not the defendant, needs to convince a jury beyond a reasonable doubt that the defendant possessed the drugs and wasn’t “merely present” when the drugs were found by the police.
If A Conviction is Inevitable – Seek to Mitigate and Obtain a Diversion or Deferred Prosecution Agreement
In Wisconsin, non-violent drug-offenses are often dealt with by allowing the defendant the opportunity to participate in drug treatment. For more information on these outcomes click here.
D. Morgan Adams is experienced in challenging drug possession offenses in Wisconsin. If you have been arrested for a drug possession offense, call Attorney Adams immediately for a free consultation as to your case.
