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Advice on your legal defense when arrested for drug possession

Kevin T. Kearon, Esq. Partner at Barket, Marion, Epstein & Kearon, LLP Barket, Marion, Epstein & Kearon, LLP
Advice on your legal defense when arrested for drug possession

Any drug-related arrest can be serious, especially if an accusation is made of driving under the influence of drugs. Possession of perfectly legal prescription drugs like painkillers, anti-anxiety medications, and sleep aids can be illegal if they are not prescribed by a doctor for you specifically. Taking such medications, even properly prescribed, can be problematic if a police officer thinks that your driving has been impaired by them, and can result in you being charged with a crime.

While simple first time marijuana possession may not by itself be too serious, if found on you or in your car while driving or parked with the keys in the ignition, a marijuana-based driving offense is quite serious. Here is some helpful expert advice.
 


Do

Do remain calm

Remaining calm while being arrested is sometimes easier said than done. Calm decision-making is essential at such a time. An arrest can be highly upsetting and can lead to fear, guilt,self-loathing, depression, and a feeling of defeat. Resist such feelings, remain calm, and insist on respect for your legal rights.
 

Do invoke your absolute 5th Amendment right to remain silent

It is remarkable how many people arrested for possession of drugs or for driving under the influence of drugs make things worse for themselves because they cannot keep their mouths shut. There is no law which requires one to confess to a crime. It is not illegal to refuse to talk to the police or answer police questions. In fact, all people have an absolute right to remain silent. This right exists for a reason. Exercise it. Stop talking.
 

Do demand to speak with an attorney

Use it or lose it. You have a right to have an attorney advise you about what to do, whether you can afford one or not. You must specifically articulate your desire to invoke your right for it to be meaningful. Demand to speak with one. It is always a good idea to know a lawyer who can be called in the event of such a need and to carry or memorize his or her number.

If you don’t demand to speak with a lawyer, the government will argue that you have no such right because you failed to invoke it. Do not wait for the police to read you your Miranda warnings. They too often fail to give them as they should and are allowed to use trickery to try to get you to confess. If you are 100 percent innocent, it is slightly less worrisome to speak with the police, but still much better to speak to a lawyer before asserting your innocence.
 

Do request to call a family member or friend

Always request to telephone a family member or friend to inform them that you have been arrested, are in custody, and need help with a lawyer and bail. While you may not be guaranteed such an opportunity, many police agencies will permit it.

Assume the call is being recorded or eavesdropped upon and never say anything incriminating like, “Dad, I only had one six pack and smoked a single fatty, I swear”. It can and will be used to strengthen the case against you. The sooner a lawyer is in the picture, the better.
 

Do understand driving while impaired by drug laws

If you are pulled over, you must produce your license, registration, and proof of insurance upon request. You need not engage in a chat or answer any other questions including about whether you have consumed alcohol or have taken any medication or illegal drugs. Admissions of guilt at this stage never help you. They strengthen the government’s case. Every time.

You need not reveal from where you have come or your destination. Whether you agree to a breath, urine, or blood test is a far more complicated question and is very much a fact-specific analysis. Educate yourself about the consequences of a refusal to submit to such tests on your driver’s license.
 


Don't

Do not confess

Confessing to a crime to the police is never in a person’s legal best interest. Never. Many arrests would never have been made except for a confession. The possibility of confessing your guilt in connection with a lawyer’s supervised plea bargain at some point in the future will always exist. Resist the natural urge to be forthcoming and honest to clear your conscience or to be cooperative. It will never help you to do so at the time of your arrest.
 

Do not try to talk your way out of it

It never works. It often makes things worse. Especially if you offer the officer anything of value to not arrest you. Similarly, to beg or talk about the damage such an arrest will do or flash credentials often can come back to harm the case or create potentially embarrassing issues later on. Remain calm. Be pleasant. Don’t act foolishly.
 

Do not offer to cooperate against others

Sometimes individuals arrested for drug crimes end up cooperating with law enforcement against others. Without debating the many issues associated with such forms of cooperation, it remains true that it is almost never a good idea to do such a thing without a criminal lawyer advising you of the myriad hazards, as well as any potential benefits.

Do not name-drop

Name-dropping is a dangerous game. It used to work better than it does now. Great offense is more and more often taken by police officers and prosecutors when names are dropped. The days of the PBA [Patrolmen's Benevolent Association] card’s ubiquitous utility are long gone. The potential for public embarrassment by the disclosure of name-dropping is enormous. It is a fool’s errand upon a drug-related arrest.
 

Do not automatically reject a drug test if arrested for driving while impaired by drugs

If you refuse to consent to provide a sample of your urine or your blood upon being properly requested to do so and are warned of the consequences of your refusal, your driver’s license is revoked in the state of New York for one year. Period. No conditional license permitted.

Too many people suffer such revocations unnecessarily because they are ignorant of the rules of the game. While no specific policy or advice is offered here, it is valuable to know some general principles. It is not a crime to have some evidence of drugs in your system. It is a crime only if your ability to drive safely is impaired by the presence of such drugs. You needn’t be terrified that you might “fail” a drug test.

The government still has to prove your operational impairment. Drug tests are not particularly reliable to prove impairment, only to prove prior use and sometimes concentration, which, by itself, rarely can confidently prove impairment. Given the extraordinarily high penalty for doing so, think twice before you refuse.
 


Summary
Jumping cartoon

Educate yourself about the law, including the criminal law. Educate yourself about your legal rights. Ignorance may be blissful but, in this context, it can be costly.

 


More expert advice about Criminal Law

Photo Credits: Under Arrest in the Safeway Parking Lot . US Park Police . Waterfront Mall, SW courtesy of Elvert Barnes/Flickr Creative Commons; Check Man, Cross Man and Jump Man © ioannis kounadeas - Fotolia.com

Kevin T. Kearon, Esq.Partner at Barket, Marion, Epstein & Kearon, LLP

Kevin Kearon is a widely experienced, powerful and versatile 25-year former prosecutor and veteran of state and federal criminal trial courts in New York. He has extensive experience defending major felonies including murder, DWI-related mansla...

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