What Drug Lawyers Do to Defend You Against a Possession Charge

By Your Health Magazine Contributor

Your Health Magazine Contributor

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What Drug Lawyers Do to Defend You Against a Possession Charge

Being charged with drug possession in Victoria is a serious business and can lead to a criminal record, large fines and possibly even jail time. The Drugs, Poisons and Controlled Substances Act 1981 makes possession of even a tiny amount of an illicit substance an offence. The outcome of a possession charge depends largely on the strength of the evidence, the circumstances of the arrest and how the matter is handled in court.

Veteran drug lawyers are critical to defending these charges as they challenge the prosecution’s evidence, negotiate with police prosecutors and present mitigating circumstances to the court. Whether it’s for having the charge dropped, reduced or settled with no criminal conviction, having a lawyer on your side can be a big help.

Disputing the Elements of Possession

In order to convict the defendant of drug possession, the prosecution must meet the burden of proof, or be able to do so, beyond a reasonable doubt, that the defendant had the physical or constructive possession of the drug, knew it to be a drug, and intended to possess the drug. A defence lawyer will be looking for weaknesses in the case in each of these elements.

A lawyer might be able to prove that the accused individual didn’t know about the drugs and didn’t have control over them if drugs are discovered in a common area, such as a vehicle or a house with a large family. Forensic certificates will also be examined by defence lawyers to provide the opportunity to challenge the weight, purity or chemical composition of the drug, so it clearly meets the legal definition of a drug of dependence under Victorian law.

Challenging Unlawful Police Conduct

Suppression of evidence is possible in court if it results from an illegal police act. A defence lawyer will examine the circumstances of the search and arrest to decide if the police acted within the powers that they were entitled to.

This involves scrutiny of the validity of the search warrant and of whether the police had reasonable and probable cause to search. The lawyer may also file a motion to suppress the seizure of evidence if the warrant was defective or the search was illegal.

Negotiating Charges

Prior to a matter being set down for a contested hearing, experienced lawyers will often negotiate directly with Victoria Police prosecutors in an attempt to resolve the case.

A lawyer can argue to get the charges dropped entirely if the evidence against the accused is weak. Under Victorian law, the quantity of drugs can create a presumption of trafficking, with much higher stakes. A trafficable amount can upgrade a possession charge to a trafficking charge. A lawyer can present evidence and submissions to rebut this presumption and reduce the charge to simple possession.

Securing Alternative Dispositions

Most favourable for first-offenders or low-level offenders is avoiding a criminal record. Eligible defendants in the Victorian courts have a range of options to settle their charges without a finding of guilt.

One of the most common options pursued is the Criminal Justice Diversion Programme. The lawyer will prepare strong submissions for the matter to be diverted, which may include conditions such as making a donation to a charity, completing a treatment plan or attending counselling. The Victorian Department of Health also runs drug diversion pathways which connect eligible offenders to clinical assessment and treatment services as an alternative to prosecution. If the participant successfully completes the imposed conditions, the court may dismiss the charges or otherwise resolve the matter in accordance with the applicable diversion program.

Presenting Mitigating Factors

Where the evidence is overwhelming or the accused decides to plead guilty, the question then becomes one of minimising the penalty imposed by the court. The lawyer will collect material to back up the case and present it at sentencing in the best possible light.

This can include character references, evidence of rehabilitation such as attendance at counselling or treatment programmes, and submissions as to the effect a conviction would have on employment or family circumstances. The purpose is to convince the magistrate to sentence them to a less severe sentence, such as a fine, a Community Correction Order or an adjourned undertaking, instead of a custodial sentence.

Conclusion

Possession offences don’t always result in a criminal conviction in Victoria. Your defence lawyer will fight for your rights and for the most favourable outcome, which may include challenging the police’s search, seeking charge reduction, or diverting you from charges. The quicker that you seek legal advice for a possession charge, the clearer you will see your options as well as the stronger your defence will be.