Criminal Defense Basics
Frequently Asked Questions About Drug CrimesQ: What are the common legal challenges raised in drug cases?
A: The most common challenges in drug cases relate to how the evidence was obtained. If the police violated the defendant's Fourth Amendment search and seizure rights or Fifth Amendment rights against self-incrimination, the court will suppress the drugs or statements as being unlawfully obtained. Without this evidence, the prosecution may not be able to prove its case beyond a reasonable doubt and the case may be dismissed as a result.
Q: How is drug court different from regular criminal court?
A: Drug courts combine criminal justice and medical treatment models to deal with drug crimes. They recognize that incarceration may not be the most effective method for breaking the cycle of drug addiction and crime, especially for first-time and low-level offenders. Drug courts emphasize a cooperative approach between the prosecutor, defendant and court, and they favor rehabilitation over jail. Successful completion of drug court programs can result in reduced charges or sentences, or dismissal of charges altogether.
Q: What is the difference between civil and criminal forfeiture?
A: Forfeiture is the government seizure of property connected to criminal activity. In criminal forfeiture, the government takes property after obtaining a conviction, as part of the defendant's sentence. In civil forfeiture, a criminal charge or conviction is not needed; the government only needs to show by a preponderance of the evidence that the property was used to facilitate a crime. In theory, criminal forfeiture is a punishment, while civil forfeiture is remedial. Most forfeiture actions are civil.
Q: What does a grand jury do in a drug case?
A: A grand jury is a group of people called together by the prosecutor to gather and review information about suspected criminal activity. After listening to witness testimony and examining evidence, the grand jury decides whether there is enough evidence to issue an indictment charging the defendant with drug crimes. Grand juries are used in the federal system and most states. At the federal level and in some states, grand juries must be used for charging felony drug crimes; in some states, they may be used but do not have to be.
Q: If I simply intend to plead guilty, why do I need a lawyer?
A: Even if you plan to plead guilty to the drug crime with which you are charged, getting the advice of experienced counsel offers you the best chance to minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys play an important role in the criminal justice system by equalizing the balance of power between the defendant and the prosecution and by ensuring that the constitutional rights guaranteed to all criminal defendants are protected.
Q: What are controlled substances "Schedules"?
A: The federal Controlled Substances Act classifies drugs into five categories, or "Schedules," based on their potential for dependency and abuse as compared with their therapeutic value. Schedule I controlled substances have the highest potential for dependency with no accepted medical use, while Schedule V drugs have a low potential for dependency and accepted medical uses. The most severe penalties for illegal possession, sale or manufacture of controlled substances involve those listed in Schedule I. Most, if not all, states have drug laws that mirror the Controlled Substances Act.
Q: What are sentencing guidelines?
A: Federal and state sentencing guidelines are standards used by the court to determine the punishment for a convicted individual. They have been adopted in an effort to increase consistency in sentencing. The length of a sentence is based on two factors: the severity of the crime and the defendant's prior criminal history. The guidelines specify a minimum and maximum sentence the court can order. In certain circumstances, the judge may depart from the specified range.
Q: What is the difference between parole and probation?
A: Parole and probation are employed in the punishment phase of the criminal justice process. Parole comes into play after a person has been imprisoned and is released subject to supervision by an officer of the court. Probation refers to a criminal sentence separate and distinct from incarceration. Probation is a common sentence imposed for first-time offenders or for less serious charges. It typically involves releasing the convicted offender into the community subject to certain terms and conditions. Both parole and probation may include conditions like drug treatment, drug testing and status appearances before the court.
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