DUI - Possession Charges

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Latest post Mon, Sep 5 2011 2:47 PM by Taxagent. 5 replies.
  • Mon, Sep 5 2011 11:37 AM

    • JSBach
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    DUI - Possession Charges

    My 23-year yr old son was stopped at a roadblock in Kentucky over Holiday weekend. The officer smelled marijuane on him, asked if he had anything. My son volunteered and showed them where to find 4 oz. that he had. He also had prescription meds (wrong bottle - his bottle - but a couple of different meds in there) and was also charged with possession of controlled substances (the prescriptions will proved these are legitimate). He also was charged with failure to provide Proof of Auto Insurance. He was taken into custody, urine tested two-times, blood tested once, and bonded out $5K cash bond. He was not Mirandized but no formal interreogatoion took place. He has no priors in any of these. He does have a pending assault charge in another county as a result of his illness, however we expect this will be dismissed.

    Charges then are: Possession 4 oz. (proveable); DUI (looks shaky to me but I do not know); Possession of Controlled Substances (they are his prescription meds, nothing else - they are anti-psychotics - he's under treatment for biopolr but doing well); and No Proofe of INsurance (he's insured, just no proof with him).

    I need to know how best to proceed. Money is an issue, I don't know what to expect in the way of hourly fees for this. Or is this routine enough that a public defender will be satisfactory? Arraignment is Thursday. Should he seek representation before arraignment? Does he enter one plea for everything or plea to separate charges.

    Any advice is appreciated.

     

     

     

  • Mon, Sep 5 2011 1:03 PM In reply to

    Re: DUI - Possession Charges

    JSBach:
    He was not Mirandized

    Didn't have to be.

    JSBach:
    I need to know how best to proceed

    Get a lawyer ASAP.

    JSBach:
    Money is an issue

    Then call the public defenders office and have your son apply for one.

    JSBach:
    Should he seek representation before arraignment?

    Heck yes.

    JSBach:
    Does he enter one plea for everything or plea to separate charges.

    That's for a lawyer to talk to him about.

    • The right of the people 
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    • shall not be infringed.
  • Mon, Sep 5 2011 1:29 PM In reply to

    Re: DUI - Possession Charges

    I would agree.

    Your son really needs to either hire a lawyer or if it's an option, get a public defender.

    Your son should seek representation as soon as is possible.

    From that point forward, he should listen, say and do whatever his lawyer tells him to.

    He really should not talk to anyone about this other than his lawyer, and that includes you also.

    Good luck to you and to him!

     

  • Mon, Sep 5 2011 2:15 PM In reply to

    Re: DUI - Possession Charges

    JSBach:
    Charges then are: Possession 4 oz. (proveable);

    He volunteered the dope when stopped so that is a big problem.

    JSBach:
    DUI (looks shaky to me but I do not know);

    Will all depend on the results of the blood tests.  A common misconception is that DUI means alcohol only.  It does not.  Since he was found to be in possession of several controlled substances they ran blood for toxicology.  Until that comes back clean or dirty that charge will stand.  Having a prescription does NOT make it legal to drive under the influence of the substance.

    JSBach:
    Possession of Controlled Substances (they are his prescription meds, nothing else - they are anti-psychotics - he's under treatment for biopolr but doing well);

    The problem is they were not in the bottles they should have been.  Federal law requires they be kept in the container dispensed by the pharmacy.  Most states have similar laws on the books which is why he was likely charged with the possession charge on this one as well.  

    JSBach:
    I need to know how best to proceed. Money is an issue

    He needs a lawyer without a doubt.  If money is an issue then he should apply for a public defender.  

    JSBach:
    Or is this routine enough that a public defender will be satisfactory?

    Why would a public defender not be satisfactory?  They are some of the best criminal attorneys out there and in many cases do a better job than private counsel because they spend 100% of their time in the court system and know the judges and prosecutors.  The difference is they carry a MUCH larger case load and do not have the time to "hand hold" their clients like private counsel and you will not get individual attention.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Mon, Sep 5 2011 2:37 PM In reply to

    Re: DUI - Possession Charges

    JSBach:
    Or is this routine enough that a public defender will be satisfactory?

    In general, for stuff like this, public defenders are every bit as good as a private criminal defense attorney attorney you'd hire. Just like private attorneys, some will be better than others, but on the whole both groups of attorneys provide competent representation. If your son doesn't have the money to hire a private attorney, then he doesn't have much choice in any event.

    JSBach:
    Arraignment is Thursday. Should he seek representation before arraignment?

    He can ask. However, in some places the PD is only appointed after the arraignment.

    JSBach:
    Does he enter one plea for everything or plea to separate charges.

    He'll be asked for his plea on each charge. In the absence of any legal advice before the arraignment, he'd want to enter a not guilty plea to each to keep his options open.

    JSBach:
    Charges then are: Possession 4 oz. (proveable);

    Just from what you've said here, the state would seem to have a very good case on the possession charge.

    JSBach:
    DUI (looks shaky to me but I do not know)

    The cop smelled pot in the car, suggesting your son had been smoking it before driving. If your son's driving was such that it indicated impairment, that is enough to support the DUI charge. DUI includes driving under the influence of drugs as well as alcohol. If the tests they run come back positive for pot, expect that the state will have a pretty good case on this, too.

    JSBach:
    Possession of Controlled Substances (they are his prescription meds, nothing else - they are anti-psychotics - he's under treatment for biopolr but doing well);

    He is supposed to keep his prescription meds in the labeled bottle in which they were dispensed. That said, if he can prove that the drugs found were drugs for which he had a proper prescription, the DA may let that go.

    JSBach:
    and No Proofe of INsurance (he's insured, just no proof with him).

    This will depend on the applicable state law, and I've not looked up Kentucky law on this. Some states make it an offense not to carry the insurance card, even if you have valid insurance. If Kentucky has that kind of law, then he may still be guilty of that even if he proves the car was insured.

    JSBach:
    He was not Mirandized but no formal interreogatoion took place.

    The Miranda advisement is only required if the suspect is BOTH (1) in custody AND (2) being interrogated by the police. If the cops didn't ask him anything after arrest, the advisement was not required. Even when required, the only effect of a failure to give the advisement is that the statements made by the suspect may be suppressed and thus not used against him at trial. It does not require that the charges get dismissed. If the state has enough evidence other than the suppressed statements, then the prosecution can go foward based on that other evidence.

  • Mon, Sep 5 2011 2:47 PM In reply to

    Re: DUI - Possession Charges

    ClydesMom:
     Having a prescription does NOT make it legal to drive under the influence of the substance.

    Many states do provide a defense to DUI if the drug involved was legally prescribed and the defendant took the drug as directed. Kentucky does not quite do that, but comes close. Kentucky Revised Statutes section 189A.010(4)(b) states:

    "A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice."

    Thus, to the extent the lab tests show he had drugs in his system that he had a valid prescription to use, those will not be admissible against him, which would significantly hinder a DUI prosecution based on the use of those drugs.

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