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There are a lot of defense in drug cases, and we should probably segregate a little bit between state crimes and federal crimes, because they’re somewhat different. But what is in common to drug crimes, generally, is we need to know if we’re talking about defending possession or sales or cultivation, because when we’re talking about a simple possession, really what we’re trying to get is either a dismissal or some kind of search warrant issue. Those are just less serious cases. However, in the federal context, you still have mandatory minimums, so in the federal context, if we’re possession with intent to sell or sales, you’re talking about five-year or ten-year mandatory minimums if they allege you had a specific quantity. So when we’re discussing defenses in the context of sales or possession with intent to sell in the federal world, you might be making a very technical argument. Yes, my client had a small amount of drugs, but no, it did not meet that threshold for a mandatory minimum quantity. And sometimes I’ve gone to trial just on that issue. It’s undisputed my client sold a small amount of drugs to a confidential informer. It’s on video. The video’s admissible. What do you do with that? Well, you fight the quantity, because if you can get them out of the mandatory minimum sentence, then you have a chance, at least, at arguing for some kind of probation or reduced sentence. But if they fall in the mandatory minimum, the judge has to give them that.
In terms of other defenses in state court with sales, it’s usually a little bit different. Very often what you’re arguing is the quantity was for personal use. It’s not – this guy’s not a dealer. My client’s not a dealer. At that amount, either the person was an addict himself or herself and had that quantity for personal use or they just caught them after they had bought from their dealer, but they’re not, themselves, engaged in sales. And so a very common defense in state court is that the quantity was for personal use, not for sales. And then for cultivation, that kind of just depends. Now that, obviously, marijuana has been legalized, certain aspects of that are legal, and certain aspects aren’t.
Los Angeles, CA criminal defense attorney Karen L. Goldstein talks about what defenses might be raised in a drug case.
Karen is the recipient of Trial Attorney of the Year 2020, The Jerry Giesler Memorial Award, by the Criminal Courts Bar Association (CCBA).