Michael S. Glassford
Drug Arrest: How An Attorney Can Help
(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)
The arrest for drug possession usually comes out of the blue. Sometimes you are driving in your car and are stopped for a minor traffic offense. Other times there is a knock at the door and officers burst in with a warrant. There is the ignominy of being handcuffed and searched, and the hours or days waiting in lockup before either being bailed out or transferred to a unit at the jail.The question is now that you have been arrested, what should you do next? Some people who are arrested for drugs aren’t drug users themselves. They just get caught in a bad situation usually while helping a friend or relative. Others have an addiction problem for which they need help getting treatment. Some defendants just find themselves in the wrong place at the wrong time. What you do about the drug arrest depends on your circumstances, your criminal history, and on what expectations you have. In deciding what to do about a case it is important that you know what will be happening.
Shortly after a drug arrest in Utah the defendant is taken before a magistrate who is given a copy of a probable cause statement. In many jurisdictions the hearing takes place by video. Assuming that the magistrate finds probable cause, bail is discussed. Some of the considerations in a bail hearing are criminal history, connections to the community, likelihood of re-offense, and the seriousness of the offense.
The next hearing is a felony first appearance. If the defendant has been released on recognizance or after posting bail, he is released before the first appearance. Otherwise the defendant is in custody at the hearing. At the felony first appearance the defendant is given a copy of a document that is called the “information”. The information is the charging document. Examining the information allows the defendant and his counsel to know the exact criminal code sections that form the basis for the charges. If a defendant is still in custody at a first appearance hearing, the judge will again consider the bail amount if a written motion for reduction of bail has been filed by defense counsel.
The third hearing on a felony case is known as a waiver hearing or roll call hearing depending on jurisdiction. Two things usually happen at the waiver hearing. First, defense counsel and the counsel for the state usually start to talk about possible plea agreements. Second, the defendant either waives preliminary hearing or has the case set for a preliminary hearing. If a plea agreement has been reached the hearing is often converted to an arraignment where the plea is entered.
When a case is handled by plea agreement, there are several possible resolutions. Occasionally a prosecutor can be persuaded that a case lacks merit and it can be dismissed. Another option if a case has evidentiary problems, or there is a willing prosecutor, is a diversion agreement where prosecution is suspended for a period of time based on conditions. When the conditions are met the case is dismissed. Another possible solution is a plea in abeyance. Drug cases are often handled with a plea in abeyance agreement. Under a plea in abeyance agreement a guilty plea is made but it is not entered as a conviction. Instead the plea is held for an agreed period of time. Usually while the defendant completes treatment or drug court and while other conditions are satisfied. If all conditions of the plea are satisfied after the time passes the case is dismissed. Many cases are resolved through the defendant pleading to reduced charges. In other cases some charges are dismissed while others receive guilty pleas. The kind of plea agreement can be reached depends on the nature of the charges, the criminal history of the defendant, whether treatment is in progress, the quality of the evidence and the ability of defense counsel to negotiate an agreement. All plea agreements require negotiation and agreement between defense and prosecution counsel.
The preliminary hearing is usually the fourth hearing in a felony criminal case. A preliminary hearing is a hearing where the state is required to put on sufficient evidence to show that the defendant “probably” committed the offense. The hearing is an evidentiary hearing, but the defendant has no duty to put on evidence or call witnesses. The rules of evidence are relaxed for a preliminary hearing, and the standard of proof is very low. It is unusual for a defendant not to be bound over after a preliminary hearing.
When a defendant is bound over after a preliminary hearing, or after waiving a preliminary hearing, they are then arraigned on the charges. The arraignment hearing is a hearing where the defendant actually pleads guilty or not guilty to the charges. A not guilty plea will result in the case being set for a jury trial. A guilty plea will result in a case being scheduled for sentencing. In felony cases sentencing is usually scheduled out four to six weeks to allow for preparation of a pre-sentence investigation report by the Adult Probation and Parole Department.
Because the stakes are high when a person is prosecuted for a felony, for most people after an arrest the next step is to hire an attorney. (If a judge finds that you are indigent a public defender can be appointed).
How can an attorney help? Attorneys can help at several stages in defending against a criminal prosecution. At the bail hearing the attorney can argue for lower or reduced bail. The attorney can file a request for discovery, and have access to all of the reports and evidence that are in the prosecution files. The attorney can evaluate the evidence to see if your civil rights have been violated and the case should be dismissed. The attorney can help you arrange for evaluation of addiction problems and for treatment of addiction. The attorney can advise you at every step of the process. The attorney can negotiate cases with the prosecuting attorney and can help you get a plea agreement. The attorney can conduct a trial in your behalf and can be there to put on evidence, and examine and cross examine witnesses. The attorney can help you in the pre-sentence investigation process, and can represent you at sentencing. If there are problems with the way the State or the Court handles your case, the attorney can file an appeal. An attorney can also help you have charges expunged.
More than anything else, an attorney can assist you in understanding the charges against you and can help you make the smartest decision with respect to those charges. The smartest decision is not always the most emotionally appealing, but it is the right thing to do. In some cases the smartest decision is to take the case to trial and fight all the way. In other cases it is to cut the best deal you can and do whatever it takes to get on with your life and put this episode behind you. An attorney will assist in making the best decision for you.