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Welcome to Meet the Prosecution with your host, Jonathan Thompson, a French criminal defense and DWI lawyer. This episode of our podcast is a re-recording of a video from our YouTube channel. Linked at Beatheprosecution.com for more information. Or send us an email at info at beatheprosecution.com. Or give us a text at 571-406-7268. Now your host of Beat the Prosecution, Northern Criminal Lawyer, John Katz.

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Everybody, I'm John Katz. I'm a criminal defense lawyer and DWI defense lawyer in Fairfax, Virginia.

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What type of drug offenses are there?

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The main ones are possession of drugs, possession with intent to distribute, which is a kind of traffic offense, distribution, sales. What's the difference between distribution and sales? All sales are distribution, but not all distribution is sales, because if I have a crack pipe and if I take a puff from it, which I never want to do, and then I give it to Jim as a gift for him to puff from too, that's changed from a class five felony in Virginia, which is up to 10 years in prison, to up to 40 years in prison by me handing it over to Jim and cultivating and manufacturing. Now, as far as marijuana goes, marijuana possession in Virginia now is only a civil offense, carrying up to $25 fine for possessing it. But once I sell that marijuana to Jim, now that's a class 5 felony that's up to 10 years in prison. And if I grow the marijuana in order to give some nice marijuana to Jim, that's up to 40 years in prison. But if I grow that same marijuana only to use myself in Virginia, now we're back to it just being possession for up to $25 civil offense. So those are the main drug crimes in Virginia.

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What are the risks on receiving no bond for a drug offense?

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Part of it depends on whether you're in Virginia state court or federal court. Stay out of federal court if you can for just about any criminal charge. Now the feds usually in Northern Virginia are only going to be uh concerned about big drug quantities, but in the federal court system, if you're charged with possession with intent to distribute or distribution of cocaine, that's a presumption of no bond. You might not be able to overcome that bond. You may be sitting in jail months and months to go to trial, especially with the COVID delay and having any jury trial. It's better in Virginia state law if it's your first offense charge for distributing drugs, unless we're talking about a really big quantity, you can probably, at least here in Fairfax, Northern Virginia, get out on your either your promise to return to court or to pay money to return to court in order to be under pretrial supervision, which is similar to probation conditions. But then if you get charged with a second or third offense for drug felony for possession with possession with intent to distribute for distribution, now you might have a little more problems. Now I'm gonna get back to the basic, which is stay away from drugs. I know that there are business reasons for people to get involved with selling drugs rather than just doing a favor for a friend. Why are you gonna do a favor for a friend by selling them drugs and then finding out that you're gonna go to prison for it? Come on. But the basic thing is that one drug sale, alleged, you know, because everyone's presumed innocent, gives you a better chance of getting released on bond if it's in state court. But repeated charges of drug uh distribution, that's more of a problem.

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What is the difference between gross weight and net weight in drug possession?

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So gross weight is the weight of the drugs or alleged drugs with the packaging, and net weight is without the packaging. Now, even when we take off the packaging, let's say we have cocaine. Cocaine, heroin, you know, just like when you go to the uh the fly by night diner and you order a hamburger. I'm a vegetarian, but we'll give the hamburger example because it's easier. You don't know if that's pure beef or if they're shoving in some sawdust in there to extend it or shoving in some uh some soy, okay? So heroin powder and and powder cocaine can get cut down with with other products. So it's not necessarily going to be pure heroin or cocaine all the time, but that's the difference between net weight and gross weight. And for reasons that I strongly disagree with, the Department of Forensic Science in Virginia does not require the chemist to separate out the net weight from the gross weight. Well, I mean, an important part of uh a jury or a judge to determine whether it's proven beyond a reasonable doubt, whether there's possession with intent to distribute drugs, is to know the weight. And the packaging isn't supposed to be part of that. So I turn that around. When I cross-examine the chemist, I say, so this certificate of analysis that you use to test the drugs or the alleged drugs, uh, this included the packaging weight, right? That's the gross weight, right? Yeah. They're gonna say yes to all this. That's not the net weight, yeah? And then uh I can decide whether or not I want to say, and the reason you didn't uh differentiate is because you were told you don't have to? And then if they go that route, yeah, I was told I don't have to, but you were permitted to, right? Yeah, but you still didn't do it. No. So this guy's life is on the line, Jim's life is on the line here. He might go to prison if he's found guilty, and you didn't have the decency to spend at least a few minutes to determine the gross weight for the net weight. And then you might get some jury nullification. If you don't have the jury just saying, okay, it's uh this seems like a possession, if the jury thinks, well, this is a big enough quantity even with without the packaging or with the packaging, then you maybe get even some jury nullification if the jury is irritated of the chemists for not having the decency to test out the net weight alone.

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What can I do for self-improvement when charged with a drug offense?

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If the charge is for possession of drugs and you're actually using illegal drugs, there are at least two or three things that you can do to help yourself for case negotiations and for any possible sentence. Of course, you want to win the case, and no good lawyer is going to force a guilty plea on you, but this is just in case you want to uh go that route and don't never negotiate any in any way than from a position of strength. So the first thing is to clean out your pee. Now, not everyone wants to do that because that means they're stopping their drug of choice. Clean up your pee, get a clean weekly or bi-weekly urine test. The second thing is enter state licensed drug education. The third thing is to do a lot of community service, voluntary community service that's gonna impress. During COVID, a lot of people don't want to do community service in person, uh, drug education in person. The only way you can get drug tested, though, is by doing it in person. No one's gonna believe that the drug uh tests you did at home wasn't just testing out some tea rather than your own urine or someone else's urine. Uh so there are online options for drug programs right now, and there are online options for community service, including through the Virginia Making History Project, which involves transcribing historic documents. Now, let's say it's a charge of possession with intent to distribute. I've had prosecutors and I'm say, what do I care if your client is doing drug education or clean urine tests and he's trying to get a good deal for negotiating for a possession with intent to distribute cocaine charged maybe by trying to mend it down to just a civil offense of possessing marijuana? The prosecutor might say, all that shows is that your client was only selling the product and not using his own product. But a lot of people, it's known, the judges know this. A lot of people who are selling, at least in this small, small time quantities, selling drugs, LSD, cocaine, heroin, opiates, adderall, they're often also using it as well. Now, I don't know if this uh I'm gonna go on a tangent because this is important actually, to help uh answer the other question further. I want as much information about the case as uh as possible, so I'm gonna get a discovery order issued early on if that's gonna help us get the prosecutor's evidence that they're required to give me under the law. In some instances, the prosecutor is gonna give me some information or more information without the formal discovery order. And I mentioned Adderall earlier, so I want to say uh drug offenses include possession and possession with intent to distribute drugs that otherwise are lawfully prescribed. So if you have a prescription for it, that's a nice defense for it. You don't have to automatically, and under Virginia law, have your prescription drugs in the original prescription uh package, but it would be nice because then the prescription information is right there.

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What kind of defense is there for a drug case?

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Possession of drugs, or any contraband for that matter, is knowledge, dominion, and control. So we can start with possession, then we can move on to possession with intent to distribute first. So possession is knowledge, dominion, and control, meaning I have to know that the drugs are present and nearby me. I have to have knowledge that the drugs are nearby, knowledge. I have to know that it is drugs, meaning that this is uh well in the old days with marijuana. Well, let's talk about marijuana because it's still unlawful to sell it. So if there's marijuana there, and I think it's oregano, I arguably don't know that there's marijuana there. Uh Dominion, I have access to it and control similar to that. So one fun thing to do with um drug defense is to challenge whether it can be proven that it's drugs at all. The Virginia lab, the the chemist lab for drugs through the Department of Forensic Science is so backed up. It was so backed up before COVID, it's more backed up now that it can take up to six to nine months or more to test alleged drugs. So there's all sorts of fun things to do to try to wear down the prosecution on that, to wear down even the chemists, because the chemists are maybe getting worn down with their backlog. Uh there's both regular, uh simple possession and there's constructive possession. If I've got a bag of cocaine in my pocket, that's regular possession, but I don't necessarily know that that cocaine is in my pocket. Maybe I was bought borrowing Jim's pants to use Jim as an example again and didn't know it was in there. Don't borrow Jim's pants or your friend's pants without knowing what's in the pants. Why are you even bothering other people's borrowing other people's pants anyway? There's some crumbs of crack in there. Okay, so that's not so much of a tangent. That's important for you to know. Then there's possession with intent to distribute. Okay, so let's say I've just got one crop one rock of crack can be used in just three or four puffs. That's just possession. I don't think a prostitute's gonna be silly enough to charge me with possession with intent to distribute there, unless I told the cops, oh yeah, that rock of crack there, I was planning on giving it to Jim as a gift. Uh but let's say I'm caught with 30 rocks of crack, even the the most uh, you know, the the biggest crack hit is I'm gonna finish 30 rocks of crack in one hour. So with for those 30 cra rocks of crack, that's probably gonna be charged as possession with intent to distribute. Same thing with acid with LSD. If someone's got one hit of acid, even two or three hits of acid, maybe that's gonna be only charged as possession. But if he's got 100 hits of acid, I don't think he's gonna get away with being charged with just possession alone.

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What can my lawyer start doing early on?

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Early on in a drug case, your lawyer can go ahead and file a demand, a request for the stiff foot of analysis for the drugs, the alleged drugs, so that once the testing result is filed with the court, your lawyer will be able to receive that without having to constantly check with the court. Your lawyer can file an objection to the stiff food of analysis. That's very important because some prosecutors will try to slip in the drug test results without the defense being able to test it by filing a notice of intention to introduce the drug test results without testimony. And once your lawyer, uh once that's filed, your lawyer then has, or the defendant, if they don't have a lawyer, they only have 14 days from the day that notice is filed with court. Now that you receive it to file an objection. So I take a preemptive approach, I just file the objection ahead of time, and then if I receive that notice from the prosecutor of intention to use the certificate of analysis, I file another objection. And so now all of a sudden the paperwork is stacking up at the court clerk's office. Courtesy of yours truly, and uh then I want to determine whether we want to have a chemist, an independent chemist, analyze the alleged drugs. So those that's uh what I'm gonna do for starters.

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How soon should I retain an attorney for a drug offense?

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As I say, with just about any jailable offense, the sooner you obtain a lawyer, the better. Because the prosecutor and the cop, they're not waiting for you to get a lawyer. They're already prepared a certain percentage of the case already with their uh with their prosecution of the case. The sooner you get a lawyer, the sooner your lawyer is able to help level the playing field and reverse the playing field, hopefully by quantum leaps. So the sooner you get a lawyer the better, including in the situation, let's say you have a Weasley prosecutor who's gonna go ahead and file a notice of intention to introduce the drug test results without evidence. You know, you don't want to be not knowing what to do with that if you get that notice without having a lawyer first. But of course, it takes, once again, it takes so long to get the chemist report, at least uh six months, that by that time you probably have a lawyer then anyway.

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Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website is legal advice. John Cat only provides legal advice to current clients and individuals for consultation.