WHOSE DRUGS DID THE POLICE SEIZE?
On behalf of Law Office Of Scott G. Cerbin, Esq., PLLC posted in drug trafficking on Sunday, January 6, 2019.

Should you face drug trafficking or any other type of drug charges in New York, you undoubtedly realize that if you get convicted, you likely will spend a significant amount of time in jail or prison.

What you may not have consciously thought about, however, is that before the prosecutor can convict you of any alleged drug crime, she must first prove that the drugs in question that the law enforcement officers recovered and seized in fact belonged to you and not someone else. This is where the doctrine of constructive possession could come into play.

Constructive possession

When the prosecutor attempts to convict you of an alleged drug crime, (s)he has the burden of proving to the jury beyond a reasonable doubt that you possessed, owned and/or controlled the drugs that make up the alleged evidence against you. As FindLaw explains, (s)he generally has two ways to do this: by proving actual possession or by proving constructive possession.

As you might suppose, actual possession is fairly easy and simple to prove. All the prosecutor needs is the credible testimony of a law enforcement officer that (s)he seized the drugs from somewhere on your person, such as in one of your jacket or pants pockets.

Constructive possession, on the other hand, poses a significantly greater challenge to both the prosecutor and the jury. Here no officer can testify that (s)he found the drugs hidden somewhere on your person. Instead, the best (s)he can testify to are the circumstances surrounding his or her recovery of the drugs. If the jury finds the testimony compelling enough, they can make the reasonable inference that you possessed, owned or controlled the drugs and consequently convict you.

Illustrative fact situations

Suppose, for example, an officer testifies to the following four facts:

That (s)he flagged you over for a traffic stop
That you drove the car and had three passengers with you
That (s)he searched your car legally
That you gave him or her the key to your locked console box and that is where (s)he discovered the drugs
Under these circumstances, the jury can easily infer that you owned the drugs since you controlled the access to their hiding place.

Now suppose that the officer testifies to the same first three facts, but now must admit that (s)he found the drugs in your unlocked console. Under these circumstances, the jury cannot determine beyond a reasonable doubt who owned the drugs. All four of you in the car had equal access to your unlocked console and equal opportunity to place the drugs there. Consequently, you go free.

This is educational information and not intended to provide legal advice.

DO YOU HAVE GROUNDS TO CHALLENGE BREATHALYZER RESULTS?
On behalf of Law Office Of Scott G. Cerbin, Esq., PLLC on Wednesday, January 2, 2019.

When you receive drunk driving charges, it may seem like you don’t have any options, especially if you failed a Breathalyzer test. it is certainly understandable to feel this way, but you may find that you have more opportunities to fight your charges than you realize. In most instances, a strong legal defense can help you keep your rights secure while fighting to reduce your charges or dismiss them altogether.

You may even have grounds to challenge the results of a Breathalyzer test, depending on the circumstances surrounding your charges and the evidence you can gather. It is always wise to learn as much as you can about the evidence the prosecution has against you, but you must act quickly. Otherwise, you may run out of time to review it and build a strong legal strategy. Without a strong defense, it is very difficult to avoid harsh punishment for drunk driving charges.

The reliability of the testing device

Even when Breathalyzer devices are properly calibrated, they do not produce flawless results. There are some examples of defendants seeing their cases thrown out because they challenged the reliability of the results in their calibrated form. This is not at all common, but it is good to understand the limits of a Breathalyzer’s accuracy.

Many different factors may affect the Breathalyzer’s accuracy and give you opportunities to challenge your results. Often, the device is poorly maintained or calibrated, which can produce unreliable readings.

If you have any reason to believe that the device used in your stop was not properly calibrated or maintained, be sure to consider this as you build your defense. You might also allege that the arresting officer did not properly operate the device if you can justify it.

Questioning the arresting officer’s conduct

In some cases, your arresting officer may not follow the law during your arrest. This could mean that they violate your rights in some way, or that they do not follow protocol while assessing your sobriety and making the arrest.

Always be sure to review each detail of your arrest, gathering as much documentation and evidence as you can to build your defense. The more energy and attention you pay to your defense, the more likely you are to find strong legal tools to protect your rights.