Any person charged with a drug offense faces serious consequences. A conviction for trafficking can lead to the destruction of your life and your family, especially if you wind up in federal court. Someone who is not a U.S. citizen faces even more serious consequences. For example, conviction for almost any drug crime except one conviction for simple possession of less than 30 grams of marihuana for personal use can lead to grave problems with the immigration authorities, including deportation or removal. Even a citizen can face loss of employment and even drivers license suspension, jail and a fine and probation or parole. Did you know that any conviction for a drug charge in Utah, even paraphernalia, will likely result in a six months drivers license suspension—even if you are not driving a vehicle?
If you are arrested for a drug charge, whether it is trafficking or possession for personal use it is wise to consult with an experienced criminal defense attorney immediately.
Almost all drug possession charges are based on a legal fiction known as constructive possession. In other words, the defendant rarely has the substance in his hand or in his pocket which is known as actual possession. Instead, the substance is found hidden somewhere in a home or vehicle and the police and prosecutors must use circumstantial evidence to try to prove guilt. In fact, in a constructive possession case under Utah law the Judge must dismiss the case or find the defendant not guilty unless the prosecutors can show a link or “nexus’ between the defendant and the substance sufficient to show beyond a reasonable doubt that the defendant had both the power and intention to exercise control over the substance. In cases of multiple occupants in a home or vehicle it is very difficult for the prosecutors to convince a judge or jury to convict unless they have additional evidence such as fingerprints, an eyewitness or a confession.
If the police enter a home occupied by five different people and find drugs hidden in a common area accessible to each occupant such as the kitchen or living room it will be almost impossible to convict anyone, though it may give grounds to arrest ALL of the occupants. Of course, if the drugs are in open view or use is open and notorious then everyone present might be found guilty. However, If everyone present remains silent and refuses to speak to the police the chances of conviction are very limited unless the police have fingerprints or a confession.
When dealing with the police in this situation it is usually very important to be polite but firm and explicitly tell the police that you are exercising your right to remain silent and that you are happy to talk to them but not until you have a lawyer sitting next to you. This is known as invoking your right to counsel. Once you invoke your right to counsel all questioning must cease. Likewise, you have a right to remain silent. You should tell the police that you are exercising your right to remain silent and do not wish to answer any questions. If possible do this in front of witnesses or record it on your cell phone so the police cannot lie later on.