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Barry Boches & Associates

Why Do The Prosecution Negotiate In Drug Cases Although The Law Is Very Strict?


One reason to negotiate is because many these penalties are just archaic! In our state, if you have more than 15 hits of LSD or even ecstasy, it’s a class X felony and you’re looking at six to 30 years with no possibility of probation. In some cases, that’s maybe $75 worth of drugs, so that level of punishment is ridiculous.

Sometimes, a MEG agent will talk someone into delivering just enough of a drug to get them just over the class X amount. People might ask if that is entrapment, but it’s not. Entrapment means you were talked into doing something you didn’t know what you were doing; for example, if you’re asked to take a package across the street for $200, but you don’t know what’s in it, if a MEG agent opens it and finds 100 hits of ecstasy in it, they can’t charge you, because that’s entrapment; you didn’t know what you were doing.

If you get trapped into doing something but you were ready, willing and able to do it for money, that’s not entrapment. The rules of accountability and constructive possession apply to cases like these; the accountability statute reads that, if you aid in the planning or the commission of a crime in any way, you have committed that crime. In other words, if you tell someone, “I know where you can rob this guy – at the gas station” and you say, “Okay, you go rob the guy with a gun,” even if you are sitting in your office while the crime was being committed, you are guilty of armed robbery.

Another example would be if you said, “Let’s go rob a bank; you drive the car, and I’ll do everything else.” If you drive to the bank, I jump out and rob the place, and in the process I shoot and kill someone. If I come running out and say, “Let’s get out of here, I just murdered someone,” under the law, you’re still accountable for that murder, even if you wanted nothing to do with that.

The law sees it this way; if you start anything that’s a crime, anything that happens because of that crime makes you accountable. If you aid someone in the commission of a crime or you’re a lookout or a getaway driver, that’s a classic accountability.

Other questions usually come up in drug cases because of the possession aspect. For example, if police have a warrant and raid the house, and no one is home, but they find all kinds of drugs, they can use mail addressed to someone, as well as their clothes and other possessions to establish what is called “constructive possession.” There is actual possession, where the drugs are in your possession, and there is constructive possession, which requires that two elements be proven; that you have the ability to get to them and that you have the intent to exercise control over them.

For example, we are both sitting in my office and there is big package of crack cocaine in my drawer while you are discussing a traffic ticket you have. The police are tipped off, come into my office, find the crack and arrest everyone, because they can. They can do the same if they pull over a car and see a single joint in the car; they can and will charge everyone in the car, that’s right in the statute. However, a good attorney should be able to prevent the prosecution from proving that you had constructive possession because, even if you technically had the ability to get to it, by reaching over my desk, you had no intent to exercise control because you didn’t even know it was there.

I’ve had cases in which a cop says he saws what’s called furtive movement, which is when someone is seen moving around in the car as he approaches. After he got everyone out of the car, he found some marijuana stuffed in the side of the door panel.

Even though marijuana was found in the car and he technically had the ability to exercise control over it, I got that thrown out because the car wasn’t his, he was only the passenger and the cop didn’t see the marijuana in his hand. They had no evidence to show beyond a reasonable doubt that he had the intent to exercise control over it.

There are a lot of cases like that, and people ask, “How in the world could you get charged?” If you’re in a school bus and there is one joint and 50 kids, they can charge every person in the school bus. Should they all be found guilty? Not if they have a good attorney, but that doesn’t mean you won’t be charged or you won’t have to go through the whole process.

For more information on Tactics Employed In Drug Cases, please call (847) 244-4636 today to schedule a free initial consultation. Get the information and legal answers you’re seeking.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

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