It Is Very Hard To Prove That The Apprehended Marijuana Did Not Belong To You

Interviewer:  If someone has maybe some Marijuana in the car and it doesn’t belong to them, you know, how hard is it going to be to prove that?

Matthew Nebeker: I run into this quite a bit.  A lot of people say that they are borrowing a friend’s car or they had some friends in there that were partying, you know, the other night or the other weekend and you know they had no idea that this stuff was in their vehicle and, you know, that poses a difficult question for the defense in defending someone on that charge.  You know, they — always, we like to see if there is a way we can prove that on a certain time and date, close to, you know, when they found the controlled substance that maybe someone else borrowed their car and maybe we can, you know, try and confirm that by this person put gas in it and there’s a video of him putting gas in the car or, someone took it to a shop to make a repair on the car or sometimes, maybe we look to see if they just recently purchased the car. But unless we have something like that, something to show a jury that this other person had access to the car, was using it close in time to the date of the arrest or the date of the charge.  We have a tough defense a lot of times, and I have this case going, pending right now.

It is a Very Rare instance that Someone Owns up to Ownership of Marijuana in a Possession Case

I asked my client if we had any of those circumstances or any of those possibilities to defend them on their case and then, I ask them well, “How could have this controlled substance gotten in your car?”, and you know they’ll say “Well, it was so on and so”. They actually know and they can identify a person.  Usually, it’s a friend or a coworker or something like that and I’ll ask them “Well, are they willing to come forward and, you know, claim responsibility for the controlled substance?  If I set up a meeting with the prosecutor, are they going to put themselves in jeopardy of going to prison or to jail or having these fines and punishments to protect you?” There are not a lot of people willing to do that but I do have the case right now where this gentleman said that it belonged to his girlfriend and she used the car frequently and she is going to come into court and she’s going to write a letter to the prosecutors that this stuff was hers and she’s the one that should be responsible for it and not her boyfriend.  But that doesn’t happen very often.

In Case of Apprehended Drugs during a DUI Stop, the Individual will be Charged With a Drug Charge as Well as a DUI Charge

Interviewer: These are going to be two separate charges, is that correct?  You’re going to have both a, drug related marijuana charge, drug charge and a DUI charge, right?

Matthew Nebeker: Yes.  If you’re, you know, arrested for the DUI and you know, what could be an alcohol, DUI or prescription related DUI or, you know, and a legal controlled substance DUI, yes.  They’re going to book you in and they’ll list two or three charges or whatever there is.  The DUI,  it could be misdemeanor or felony, depending on priors and if anyone was injured or not.  Then, it could be, you know, possession of the controlled substance depending on, you know, how much was there like we explained earlier, was that just a small amount or you know did we get more than an ounce, you know, when we did the inventory search of the car. Whatever else that the prosecutor or the police officer can think of, goes along with it.

If a Plea Agreement Can’t Be Reached Prior to Trial, then the Prosecutor Must Prove Each and Every Charge

Sometimes, there’s an open container of alcohol, so you’ll see an open container and then, you’ll see the,  faulty equipment like the burned out tail light or the traffic infraction, weaving in the lane or not, you know, stopping completely for the stop sign and basically, not being a perfect driver when they are pulled over. So then when you go to court, the client is looking at all those different charges. If they go to trial and no plea negotiations can’t be reached, then the prosecutor will have to prove each and every one of those charges.  A lot of times you know they file a lot of charges so they can, you know, get a client to negotiate by dismissing some of the smaller charges, like the open container, the faulty equipment something like that. There is one thing that I should mention also when we went over the different amounts and the penalties that can be imposed upon someone.

The Charges for Marijuana Can be Enhanced for a Prior Conviction as Well as for being Arrested within 1000 feet of a Drug Free Zone

The regular statute just says, for example, less than an ounce of Marijuana is a class B misdemeanor. If someone is stopped and they find less amounts of Marijuana on them, normally, it would be a Class B misdemeanor unless they have a fire conviction.  And so, if this is a second or third potential conviction for them, then it’s going to be bumped up, A degree by the prosecutor.  So, the officer might file it as a Class B misdemeanor but when the client goes to court and are arraigned on their charges, it might be higher because of a prior conviction and a B could be bumped up to an A and A misdemeanor could be bumped up to the third-degree felony and so forth. The charges, for just Marijuana can be enhanced for a prior conviction.  And also, the charges can be enhanced if the stop or the possession occurs within what they call a 1,000 feet of a drug free zone.

In Utah A Number of Public Areas such as Parks, Schools etc. have been Designated as Drug Free Zones

In Utah, they’ve designated a bunch of different areas and put in the statute of what they consider drug free zones and now, it could be a park, it could be a church, it could be a school and a public shopping area.  They label all these things.  And so, once again, the B misdemeanor could be bumped up to an A and A could be bumped up to the felony if, you know, you’re in one of those areas.  I see this quite a bit on traffic cases or cases where the client is not necessarily DUI but they’re buying drugs from a known drug location and the officers will be watching that house and they’ll watch the individual go into the house and come out, get back in the car and then, they’ll follow them and wait for them to make some kind of, you know, infraction or, you know, felling to signal something like that. It just so happens that it’s by a school, it’s by a church, it’s by a park.  And so, I don’t know if that’s coincidence or not but a lot of times when I get the cases, they are enhanced because the person was stopped by the drug-free zone. I don’t think that’s just coincidence.  I think that’s that police officers that are trying to get a stronger case and use something to bargain in court, if necessary.

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