Interviewer: How hard are these cases to defend and negotiate down from intent to distribute to a single possession without a prescription?
Attorney Koehler Finds the Drug-Related Intent to Distribute Cases Highly Defensible
Court Koehler: I would say that intent to distribute is one those cases where the circumstances of the particular facts and scenario have a lot of bearing on how strong the prosecutor’s case is. It’s one of those charges that are relatively easy to negotiate and to work with prosecutors to reduce the level and thus, mitigate the penalties for my client.
Room to Negotiate: Attorney Koehler Finds Drug-Related Cases More Defensible than DUI Cases
With drug charges in general, many times there is a lot of good room for negotiating. This is as opposed to DUIs, where there are numerous mandatory minimum penalties and there is just one offense and it was just a DUI or a class D misdemeanor.
When you look at drugs, there are all sorts of different offenses and all sorts of different offense levels all the way from the class B misdemeanor up to a second degree felony. It gives me, as a defense attorney, a lot more negotiating room to get the prosecutor to say they move it down to a class A misdemeanor or a class B misdemeanor.
With a crime like a DUI, that has so many mandatory minimum statutory penalties, there is not much that the prosecutor or the judge can do. Their hands are sort of tied by the statute. There aren’t as many statutes with drugs so it’s definitely something that there is more room for negotiation.
Will a Paraphernalia Charge Be Added to Other Drug-Related Charges?
Interviewer: Is there any paraphernalia charge associated with prescription drugs or only illegal ones?
Court Koehler: No, you are not going to see charges related to paraphernalia. The only thing that could even be considered paraphernalia would be the bottle that it’s in and that’s not really paraphernalia under the statute. With a marijuana charge, if you have a pipe and the marijuana, you are going to get charged with paraphernalia as the second charge. You won’t really see that with prescription drugs.
What If You Have a Valid Prescription But Do Not Carry It with You?
Interviewer: Well, for these prescription drug cases, how often does a person have a prescription but the prescription is not on them? Does that mean you are going to be charged?
Court Koehler: Yes, it’s a messy area and it’s actually really difficult for prosecutors to sort of prove some of those charges. Very frequently, you encounter a client that has a prescription. Sometimes I’ve seen problems where somebody has prescription drugs but they are not in the prescription bottle. That might be one of the more common charges.
You have a prescription for Xanax but you have the Xanax in a little baggie instead of in the prescription bottle. You might be charged for possession because the officer can’t tell whether or not you have a prescription for it. Those kinds of charges are, for the most part, a lot easier to resolve.
What If You Are Carrying Someone Else’s Prescription?
Then, on the other hand, you might have cases where somebody has a prescription bottle and the prescription is in somebody else’s name. They are obviously pills for somebody else and they are not for you. In that case, you are going to be in trouble.
When Is Possession Legal? Problems Have Arisen over Recent Legislation Concerning Medical Marijuana
More recently, marijuana charges are prevalent because you can have a prescription for medical marijuana from a lot of states and it is actually even legal in Colorado now and in Washington. Sometimes you see clients with a marijuana charge that have a prescription for its use. It’s not legal in this state and you do have a prescription for it.
Interviewer: What are the most common drugs you see in the cases you handle?
Court Koehler: Marijuana is by far the most common. You see that with traffic stops quite frequently, which is probably the most common origin but you can also see it other ways. If it is a large quantity involved in the charge, sometimes you see people growing marijuana or possessing large amounts with intent to distribute it.
By far the most common is marijuana and then running a distant second are drugs such as, methamphetamines, cocaine, LSD, and other hallucinogens, mushrooms, MVMA, and ecstasy.
Interviewer: Is a prosecutor more likely to charge people with intent to distribute in a marijuana case versus prescription pills?