Knowing your Defenses when you have been Charged with a Drug Offense

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Even though some drugs are being legalized throughout the Unites States, drug use and its legality still continues to be a major and even growing concern for the criminal justice system. With drug use rates soaring across the country, many people find themselves facing criminal charges for the possession of illegal drugs. If you have been charged with the possession of drugs, either for personal use or with an intent to sell, you will want the help of an experienced criminal defense attorney to represent your interests and fight your case.

State vs. Federal Drug Laws

The federal drug laws tend to have tough sentencing guidelines, whereas individual states approach the problem of illicit drugs in varying ways. South Carolina drug laws criminalize controlled substance possession, its sale and use. Not every drug is treated in the same way. Therefore, extra consideration will be given to the type of drug obtained, how the drug was possessed and the amount of drugs seized. The location of drug seizure will also be a key factor when the police determine what charges to file. For example, if a controlled substance is found within one mile of a school it can result in an additional charge commonly known as a “proximity” offense. This proximity offense will be classed as an additional sentence upon conviction and can add significant jail time to your punishment.
South Carolina drug offenses are divided into misdemeanors and more serious offenses, which are called felonies. In general, minor drug crimes are treated as misdemeanors and more serious offenses are classified as felonies. Although state and federal drug crimes are both serious and carry substantial prison terms, it is important that your criminal attorney understands the differences between the two court systems. Your attorney should have a good grasp on the federal mandatory minimum sentences which force judges to jail defendants for a certain amount of time, regardless of any mitigating circumstances. The mandatory minimums offer little room for negotiating on leniency and your lawyer should understand and explain that a conviction will entail an automatic jail term.

Possible Drug Defenses

Despite the differences between state and federal sentencing approaches, drug possession defenses are fairly universal across state lines. There can be differing defense approaches, such as challenging the applicability of the law, challenging the validity of the evidence and questioning the police procedures. Here are some more detailed examples of defenses for drug possession charges:

  • Medical Marijuana Exception: Unfortunately, the medical use of marijuana is not a defense in federal court but in states where medical marijuana has been legalized, it can be used. Typically, a doctor’s note is required to validate the defendant’s claim. This type of defense is called an ‘affirmative defense’ which means that you have the legal right to use the drug.  At this time, South Carolina does not recognize a right to use medical marijuana.
  • Unlawful Search and Seizure: Under the Constitution everyone is guaranteed the right to due process of law, including lawful search and seizure procedures prior to an arrest. In general, drugs found in “plain view,” may be seized and used as evidence, however, if they were found without the defendant’s permission in a manner that requires a search warrant, they cannot be used as evidence. This basically means that if the defendant’s rights were violated during the search and seizure, the drugs cannot be used as evidence at trial and the charges may have to be dismissed. This is a typical defense used by skilled criminal defensae attorneys for many drug charges.
  • Deny Ownership of Drugs: Another common defense to any drug charge is to simply deny ownership of the drugs. In this situation, a skilled criminal defense attorney will pressure prosecutors to prove that the drugs found actually belonged to the defendant and not one of the other people present during the arrest.
  • Missing Evidence: An experienced criminal defense attorney will ensure that prosecutors are able to produce the actual drugs for which their client is accused of owning. Prosecutors that lose or misplace vital evidence risk having their case dismissed. It should never be assumed that the drugs still exist during a trial as they are often transferred several times before being placed in the evidence locker.  A skilled criminal defense attorney will force the prosecutors to prove the entire chain of custody of the drugs from the point they were allegedly seized from the defendant.
  • The Drugs were planted: This defense is difficult to prove as a police officer’s sworn testimony carries a lot of weight in court. Being able to use this defense will very much depend on the specifics of your case and it is rarely successful.

The above defenses may be used when defending against a drug charge and only an experienced criminal defense attorney will be able to walk you through all of your options. In South Carolina, state laws have been written to criminalize the use and possession of dozens of drugs and prescription medications, including marijuana, crack, heroin, PCP, ecstasy and opiates. Therefore, it’s important to remember that all drug crimes, even those involving small amounts, have the potential to lead to serious penalties. State authorities and prosecutors are normally eager to bring drug charges as they are under immense pressure and public scrutiny to appear tough on crime. For that reason, even if you believe you have a strong defense, you may still receive a harsh punishment in order to set a public example.

Prescription drug fraud

An increasingly common drug crime in South Carolina involves prescription drug fraud. This is when an individual is charged for taking drugs without a legitimate prescription through fraud, theft or forgery. Prescription drug abuse affects families throughout South Carolina as individuals of any age, income bracket or race, can find themselves addicted to prescription narcotics. As this type of crime is becoming more prevalent, prosecutors in South Carolina are bringing criminal charges against all individuals involved, from the user to those who orchestrated the deceit. Defendants charged with a prescription drug fraud should expect to receive a hefty jail term unless their attorney is able to remonstrate one of the above defenses.

Always seek legal help

Having an experienced and skilled criminal defense attorney representing your case is the only way to know that your rights and interests are being protected. At David R. Price, Jr. P.A., our skilled South Carolina criminal defense attorneys will be able to discuss all of your defense options and fight relentlessly so that you will face the minimum jail term possible. Contact us now for a free consultation and help with your case.


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