By: Mark Diaz
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Galveston Criminal Attorney Discusses Definition of Possession of a Controlled Substance And Due Process
While that is a very broad question, I can give you some general rules about possession. First, it has to be intentional and knowing to be in possession of something. You have to either have the intent to be in possession of it or knowingly be in possession of it.
Typically, when I’m picking a jury, this is one of the things that I’ll go over with the prospective jury. Let’s say I walk out in the morning to go to work, and my car’s got a flat tire. My neighbor happens to be outside and hears me cussing about my flat and says, “Hey I’m not working today. Why don’t you take my car since I know you’ve got to be at court this morning. You can bring it back and fix your tire after court.” So I say, “Hey, thanks, I appreciate it”. He throws me the keys. I get in his car and head to the courthouse.
Well, I don’t know what’s in his trunk. So let’s say that my neighbor has a kilo of cocaine in his trunk. I don’t know that. So that first element of possession of a controlled substance is not met. I’m not intentionally or knowingly in possession of what is in my neighbor’s trunk.
The next threshold is, does the person have care, custody, or control of the substance? In that scenario, yes, I would have care, custody, and control because I’m driving the vehicle. Therefore, I’m in control of the vehicle. The problem is, my neighbor didn’t tell me what he had in the trunk. The state can’t get a conviction on me without proving that I knew what was in the trunk.
When I talk to jurors or prospective jurors about this, what I tell them is if you’re not willing to hold the state to their burden on those elements, then you better make sure every time you borrow someone’s car, that you conduct a thorough search first.
If jurors aren’t willing to follow the law, our system falls apart. I have also done silly things in trial before like walk up to juror number six and hand them my briefcase, and ask them to hold it for a minute. Then, of course, give the demonstration that they’re in care, custody, and control of my briefcase, and they took it voluntarily. Are they responsible for what’s inside my briefcase?
Of course, everyone agrees that he or she is not, because they don’t know what’s in my briefcase. They just took it when I asked them to hold it for me. So that’s a way I like to simplify the explanation of what possession of a controlled substance is. There’s a further discussion that we could get into in the future, which is that the state has to find a formative link between the accused and the possession.
A simple example of that is when the police enter a room. There are multiple people in the room. There are drugs in plain sight. So if the police came in here and I had drugs on this table, I’d be the closest person. The state is going to try and argue that that’s an affirmative link to me, we see the same thing a lot in cars. When you have a few people in a car, and the police find drugs, the police will try to articulate exactly where they found them, under the driver’s seat, or in the rear as if it was the rear seat passenger who would have stuck it under the driver’s seat from the rear.
However they find the drugs, they are going to try and give them to the person in closest proximity to establish an affirmative link to that person or that accused.
What is due process?
Due process means that the accused must be afforded all of their legal protections, and legal processes for a prosecution to be held against them. So that means all your rights: right to remain silent, right to a speedy trial, right to a public trial, right to a fair and impartial jury.
All the steps of the process before you get to a jury, every accused is entitled to his or her due process. In other words, the state can’t just pick you up and not give you due process, which includes giving you exculpatory evidence. It can’t just rush you through that trial.
You’re entitled to your due process, and make sure that you have been availed of all your rights before you’re forced to a trial. The theory of this due process situation is that no one is rushed to judgment. It’s supposed to take overzealous prosecution out of the equation so that each accused can have their day in court properly, and have been protected of all their rights.
What is an expunction?
An expunction is removing a charge from your criminal record. Removing the arrest, the case, everything. There are only specific situations where you can get an expunction. That includes a not guilty verdict from a jury, obviously, a dismissal. Although the dismissal has to be a certain way. Then obviously a no bail by a grand jury.
People call all the time and say, “Listen, I got convicted of a felony 10 years ago, I’d like to get that off my record.” and the answer is always the same. If you were convicted, there’s not much we can do to get that off your record. Now, there is another process called nondisclosure, which does allow us to seal your record from everyone but the government.
In other words, if a potential employer did a background check, they would not see it. However, if law enforcement did a check on you, they would see it. The district attorney’s office would see it.
What happens if you violate bond conditions?
That is generally not a criminal matter unless you get filed on for bail jumping, which is not all that common. Typically your bond conditions, set by the court or the bonding company, are more like contractual issues. For instance, we have a court here that likes to drug test everyone who is on bond for a drug-related offense. The judge makes you sign an order stating that you understand that you will be drug tested, so that has now become a bond condition that you are substance-free while you are on board. If you buy if you test dirty, then there are consequences. That would be a violation of a bond condition.
Depending upon the violation, the state can move against you to have your bond revoked for violating bond conditions. Let’s say, it’s a victim case and part of the bond condition is that you cannot have contact with the complaining witness in your case. If the state can then show that you did, or have been contacting the complaining witness, the state can then bring you before the court to have your bond revoked.
It’s not a new charge, it’s just revoking your bond and taking you back into custody. Many times, at least here locally, when that happens, the courts will just double your bond and you can make bond again the same day. It doesn’t result in a new charge unless you’ve committed a new offense. If you commit a new offense while on bond for a previous offense, the state will file a motion to revoke your old bond, for picking up the new case.
We try to fight that and keep you on both your bonds. The other way you could have a bond issue is with your bonding company. For instance, if they want you to check in on a regular basis. We get calls frequently from bonding companies saying “Hey, your guy hasn’t checked in X number of weeks, and we can’t get him on the phone. If you can’t fix this, we’re going to surrender his or her bond”. When that happens, we always tell our clients, you need to get right with your bonding company or you’re going to have an issue.
What crimes can be expunged in Texas?
There’s not necessarily a “type of crime” that can or cannot be expunged. Whatever the charge is, if you go to trial and the jury finds you not guilty, you’re entitled to an expunction.
If you have been charged with any crime in Southeast Texas whether it be drug charges, DWI, assault, or even homicide, call the criminal defense attorneys in Galveston at (409) 515-6170