Criminal Defense Blog

Plea Bargaining- Part 2

Posted on December 3, 2015 by Woody
3December
2015

In our earlier post, we discussed a few important strategies to consider in negotiating a plea in a criminal case.  These plea bargaining strategies have been highlighted in Thomas J. Farrell’s “Criminal Defense Tools and Techniques.”  While there are various techniques that work, here are few to consider.

Beware the Long Sentence Imposed Through Drug Court

It is true that drug courts can provide a great opportunity for defendants to deal with underlying drug problems that may be contributing to crime, these programs can also trap defendants to some jail time.  Mainly, post-adjudicative drug court programs often lead to a substantial period of incarceration, if a client is unsuccessful in completing the program.  In that situation, the defendant is left with little leverage to obtain a favorable sentence.

Make Sure the Decision to Accept a Plea is Well-Informed

The decision to plead guilty is always the client’s decision alone.  However, the advice of the criminal defense attorney should be given great deference. One way to provide objective advice upon which the client can make an informed decision is to discuss how the trial is likely to play out, as objectively as possible.  A criminal defense attorney can draw from his or her experience with trials, judges and juries to predict the likely verdict based on the evidence.

Other Influential Factors to Consider

There are numerous factors related to a criminal trial that must be considered in making the decision to accept a plea agreement. Consider all of the potential defense testimony, as well as the likely cross-examination testimony that the prosecutor will elicit from those witnesses.  How will this testimony help or hurt your case?  Take into consideration the standard jury instructions on credibility, in order to avoid any unrealistic expectations about diffusing prosecution witnesses.

If you have questions regarding plea agreements, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, DUI, Marijuana Offenses, Uncategorized |

Plea Bargaining

Posted on November 26, 2015 by Woody
26November
2015

Plea Bargaining Strategies: Part One

Contrary to what you may think, most criminal cases result in a guilty plea instead of a trial and conviction.  That is just the reality.  So, from the very beginning of a criminal defense case, it is wise to at least explore the possibility of negotiating a favorable plea agreement.  There are a few plea bargaining strategies that can be useful, as explained in Thomas J. Farrell’s “Criminal Defense Tools and Techniques.”

Consider the Collateral Consequences of a Plea Bargain

When the charges carry the same sentence, it is best to bargain for the charge that carries the fewest collateral or future consequences. In other words, avoid convictions for crimes of violence, sex offenses or drug offenses, as these crimes often trigger further consequences such as disqualification for benefits programs, sex offender registration and recidivist sentencing provisions on subsequent convictions.

Be Careful of Appeal Waivers

Including a waiver of the right to appeal, as part of a plea agreement, has become pretty routine in federal prosecutions.  The waiver may apply to either the conviction, the sentence, or both.  Generally speaking, it is reasonable to consider an appeal wavier if the plea agreement will provide a benefit that you are otherwise unlikely to receive without the plea agreement.  For example, waiver of a mandatory minimum sentence, dismissal of a count that carries a severe collateral consequence increases the minimum sentence would make waiving the right to appeal a reasonable concession.

A “No Contest” Plea is Rarely Recommended

A plea of “no contest” or nolo contendere is where the defendant neither admits nor disputes the charge against him, which is an alternative to pleading guilty or not guilty.  This type of plea is beneficial with there is related civil litigation pending or likely.  However, you need to be aware of any possible negative impact that a nolo plea may have.  The main issue is whether the plea will be admissible in the civil action.

If you have questions regarding plea agreements, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, DUI, Uncategorized |

Marijuana DUI in Alabama

Posted on November 16, 2015 by Woody
16November
2015

Marijuana DUI

New legal challenges have arisen with the legalization of marijuana in certain states and as more and more people are being allowed to smoke marijuana for medical purposes.  An unfortunate result is an increase in the number of people driving while under the influence of this drug.  The legal reality is, impaired driving is impaired driving, regardless of whether the drug is legally consumed.

DUIs Involving Marijuana are not the same as Alcohol

At first glance, it may seem that a marijuana DUI is analogous to driving under the influence of alcohol.  However, the legal issues are not the same.  For one, it is relatively simple to test someone’s blood alcohol level with a breathalyzer.  The same is not true for detecting intoxication from marijuana.

The Detection of Alcohol through a Breath Test

With alcohol, if an individual is still under the influence, that person will have ethanol in his or her bloodstream, which is detectable through a breath test.  How does it work?  The breath test can detect alcohol because, the alcohol in your blood is added to the air you exhale from your lungs.  It is this air that is measured for the presence of alcohol.  In reality, the test has nothing to do with alcohol you just consumed, or alcohol “on one’s breath.”

Intoxication by Marijuana Cannot be Detected the Same Way

With marijuana, on the other hand, tetrahydrocannabinol (THC) is the chemical that causes intoxication. Unlike ethanol alcohol, this substance fully metabolizes into a different substance called delta 9-tetrahydrocannabinol, which does not cause intoxication and cannot be readily detected the same way as alcohol.

Using Old and New Levels to Determine Marijuana Intoxication

While it may be possible to tell if someone recently used marijuana, it is certainly not a quick process. If you are given a drug test and it comes back positive for delta 9-tetrahydrocannabinol in your system, a second test is required within a week.  Then, by comparing the level of 9-tetrahydrocannabinol from the previous positive test, it can generally be determined whether you are positive for “new use.”  However, these new and old use levels are not sufficiently accurate.  So, if you have a positive marijuana drug test, always consult with your criminal defense attorney before making any statements to law enforcement.

If you have questions regarding Marijuana DUI, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in DUI, Marijuana Offenses |

Expungement In Alabama

Posted on November 9, 2015 by Woody
9November
2015

Expungement in Alabama

If you have been charged, but not convicted, of a non-violent crime in Alabama, you may be able to get the charge expunged.  That means, the charge will be removed from your criminal record, and no longer visible to the public.  Alabama’s new law providing for expungement in certain situations, has many requirements.  Understanding the process, if you are indeed eligible, will let you know what to expect.

What expungement really means

When a criminal record is “expunged,” the record is “sealed” or removed in the eyes of the law. It does not mean that it becomes entirely secret. However. Alabama’s expungement law says that an individual whose criminal arrest has been expunged, still has the duty to disclose the “fact of the record” to any government, regulatory or licensing agency, any utility or its affiliates or any bank or financial institution.

What Information is required to obtain expungement?

When seeking to have eligible criminal records sealed or expunged, you must provide the case number, if applicable, the name of the arresting agency, the date of the arrest and the charge that was filed. You will be required to provide details explaining why you believe the arrest should be expunged. Juveniles are also required to provide details such as case numbers, dates, charges and the identity of the arresting agency.

How Do You Go About Filing?

A request to seal or expunge juvenile records is filed with the juvenile court in the county where the case was originally heard.  Adult requests are processed through the Alabama Criminal Justice Information Center. If a request to seal or expunge involves abuse investigations, it must be filed with the agency performed the investigation. If you are requesting to have DNA evidence destroyed, that request must be filed with Alabama’s Department of Forensic Sciences.

If you have questions regarding expungement, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-423

Posted in Uncategorized |

manufacturing of a controlled substance

Posted on November 2, 2015 by Woody
2November
2015

First degree manufacturing of a controlled substance in Alabama

The charge of manufacturing a controlled substance in Alabama is a serious enough crime, but when that charge is in the first-degree, you can be looking at the most serious consequences.  Drug charges can be defended as any other criminal charge can.  However, understanding the elements the State must prove and the extent of the potential punishment.

Alabama’s law on manufacturing a controlled substance

A controlled substance is defined as any drug that has been determined to be dangerous, habit-forming, or otherwise inappropriate for use without a prescription.  There are federal laws that were also enacted for the purpose of categorizing these controlled substances, based on the factors such as their medical benefits and their potential for abuse.  Alabama Code §13A-12-218 provides that the manufacture of a controlled substance in the first-degree is a Class A felony, punishable with life in prison.

What makes it a first “degree” charge?

A drug manufacturing charge is considered “first degree,” the most serious form of the charge, whenever one of the following is present:

  • A firearm;
  • A booby trap;
  • The illegal disposal, transportation or possession of any dangerous or hazardous material in furtherance of a clandestine laboratory operation, which posed a serious risk to either the environment or human health and safety;
  • A clandestine laboratory operation that was within 500 feet of a home, business, school or church;
  • A clandestine laboratory that was found to have produced a specified amount of a controlled substance;
  • A clandestine laboratory that produced either Schedule I or Schedule II narcotics;
  • There was a person under the age of 17 who was there during the process of the manufacturing.
  • 13A-12-218, Ala. Code (1975).

The dangers of drug manufacturing

One of the most common drugs manufactured is methamphetamine, of which there have developed different types.  Certainly, every type of methamphetamine lab is potentially dangerous, red phosphorus methamphetamine is particularly hazardous because it emits toxic gases during the cooking process. According to some officials, the red phosphorus labs are not as common in Alabama as other kinds of clandestine meth labs.  A law has been passed making it more difficult to purchase the products necessary to produce methamphetamine – specifically, pseudoephedrine, which is an over-the-counter cold medication that happens to be the critical ingredient.

If you have questions regarding drug manufacturing charges, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, Drug Trafficking |

Legal vs. Illegal Drugs

Posted on October 26, 2015 by Woody
26October
2015

Legal Drugs vs. Illegal Drugs

Obviously, having certain drugs in your possession is not always illegal.  Whether a drug is considered legal or illegal depends on how the drug is being used.  Some controlled substances are prescribed to treat physical or mental impairments. For instance, amphetamines may be used to treat attention deficit disorder, barbiturates can be prescribed to treat anxiety, and marijuana is often used to help alleviate cancer-induced nausea. However, the unprescribed and unsupervised use of these same drugs can be illegal.  Recognizing the difference between legal and illegal drugs is important in avoiding criminal charges.

Federal, state, and local drug laws

For several decades now, lawmakers have taken every effort to regulate the use, abuse, manufacture, and sale of illegal drugs, for the safety of all citizens.  There are well-established strategies put in place by the federal government to fight illegal drug abuse and the illegal distribution of controlled substances.  Each state also has its own set of drug laws, as well.

Differences between federal and state drug laws

While most federal drug convictions are based on trafficking, the majority of local and state drug charges are for drug possession – primarily possession of marijuana.  Another important difference is the severity of the consequences of a drug conviction. Federal drug charges typically carry more severe punishments and longer sentences. For example, a state arrests for simple possession, without the intent to distribute, tend to be charged as misdemeanors, usually resulting in probation, a short jail term, or a fine.  However, for a first offense of drug trafficking, can result in 5-40 years in prison and a large fine.

If you have questions regarding drug charges, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, Drug Trafficking, Marijuana Offenses |

Drug Charges

Posted on October 20, 2015 by Woody
20October
2015

The Different Types of Drug Charges

One drug charge is not like the next.  There are many different drug charges recognized in Alabama.  In fact, it is possible that one incident could lead to more than one type of drug charge.  Each of these categories of drug-related crimes comes with its own elements of proof and legal consequences.  Here are the basics.

Drug Distribution and Trafficking

Drug “distribution” refers to the selling, delivering, or providing of a controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer.  Drug “trafficking,” on the other hand, generally refers to the illegal sale and/or distribution of a controlled substance.  The main difference between trafficking and distribution is the amount of drugs involved.  The following factors dictate the type of consequences that will result from a conviction:

  • the type and amount of the controlled substance involved
  • the location where the defendant was apprehended
  • prior criminal history

Manufacturing a controlled substance

Manufacturing a controlled substance refers to the production of certain controlled substances.  For example, cultivation of a controlled substance would include growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances (e.g., marijuana). On the other hand, manufacturing refers to creating a controlled substance through chemical processes or in a lab, such as cocaine and methamphetamine.

Possession of a controlled substance

The most common drug charge involves simply possessing a controlled substance. In order to prove a drug possession charge, there must be evidence that the accused (1) knowingly and intentionally possessed a controlled substance, (2) without a valid prescription, and (3) in a quantity sufficient for personal use or sale.

Actual possession vs. constructive possession

Possession can be based on actual or “constructive” possession of a controlled substance. “Constructive” possession means that it is not necessary for you to actually have the drugs on your person, if you had access to and control over the place where the drugs were found. Constructive possession is a very common theory in situations where illegal drugs are found in a vehicle during a traffic stop.

If you have questions regarding drug charges, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, Drug Trafficking, Marijuana Offenses |

Warrant Exceptions

Posted on October 16, 2015 by Woody
16October
2015

Exceptions to the Search Warrant Requirement

When an investigative officer intends to search a person, place or thing, and seize evidence that is found, it must be done legally.  That means that certain basic requisites must be met.  As such, arresting officers must have a very clear understanding of when a search warrant is required and when it is not.  Those exceptions to the general requirement that an officer have a search warrant are very important in criminal defense.

Protections of the Fourth Amendment

The reason for the search and seizure requirements is the protection afforded to citizens by the Fourth Amendment.  The Fourth Amendment protects against unreasonable searches and seizures by the government.  It also states that, in most situations, a search warrant is required, but will not be issued unless there is probable cause.  The warrant must be supported by an oath or affirmation from an officer, and must describe the particular place or person to search or the thing to be seized.

The seven exceptions to the Fourth Amendment

The seven exceptions to the Fourth Amendment are as follows:

  1. Exigent circumstances: “Exigent” means emergency, which means under lifesaving circumstances.
  2. Search incidental to a lawful arrest: When there is a lawful, custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under the amendment.
  3. Consent: If a suspect voluntarily consents to a search, without threats or promises of any kind, then a warrant is not required.
  4. Plain view: While an officer is lawfully in a place, and there is contraband, stolen property or other evidence of a crime in plain view, then seizure of those items is lawful, without a search warrant.
  5. Caretaker function: Property that has been found by someone else and turned over to the police, or abandoned property found by officers on patrol, can be searched and seized without a warrant.
  6. Inventory or impounded vehicles: An automobile that has been impounded, can be searched and inventoried, through standard police procedures, in order to secure the vehicle and its contents.
  7. Motor vehicle: When a police officer arrests a person in a vehicle, the officer may search the passenger compartment of the vehicle, including any open or closed containers. This exception does not include the trunk.

If you have questions regarding searches and seizures, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Uncategorized |

Drug Charges and the Fourth Amendment

Posted on September 21, 2015 by Woody
21September
2015

Drug Charges and the Fourth Amendment

A major legal issue that arises frequently with drug charges is whether law enforcement engaged in lawful search and seizure.  The Fourth Amendment of the U.S. Constitution prohibits law enforcement from conducting unreasonable searches and seizures.  This means that individuals have a reasonable expectation of privacy, and police officers who do not have a search warrant can only intrude upon that privacy under certain very narrow circumstances.

Fourth Amendment Protections

The Fourth Amendment protects individuals from unreasonable government searches and seizures of their persons, houses, papers, and effects. The Fourth Amendment also requires that “no warrants shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”  Controlled substance charges typically raise search and seizure concerns because, eventually officers will conduct an investigation leading to an inevitable invasion of the suspect’s privacy in order to locate and take possession of the alleged drugs.

Exceptions to the search warrant requirement

There are several exceptions to the warrantless search and seizure rules that have been carved out by federal law.  These exceptions to the Fourth Amendment include the following:

  • exigent circumstances
  • search incidental to a lawful arrest
  • consent
  • plain view
  • caretaker function
  • inventory/impounded vehicles
  • motor vehicle

Other potential Fourth Amendment Violations

There are more ways that the government can violate a suspect’s Fourth Amendment rights besides conducting an improper search. For example, an unjustified traffic stop that leads to the discovery of controlled substances, may be a violation.  Also, if a police officer makes false statements in order to obtain a warrant, or obtains the warrant through the use of illegal wiretapping or eavesdropping. In these situations, the defendant may have a basis for asking the court to suppress the evidence obtained through this unconstitutional conduct.  Having evidence suppressed means that the evidence cannot be considered in the criminal case.

If you have questions regarding controlled substance charges, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.

Posted in Drug Possession, Drug Trafficking, Marijuana Offenses |

Court Deferred and Diversion Programs

Posted on September 9, 2015 by Woody
9September
2015

Diversion and Deferred Court Programs

It is common knowledge that the prisons in our country are severely overcrowded.  Alabama prisons are no exception.  A 2011 report indicated that the “overall occupancy rate of Alabama Prisons is 189.3%.”  That is almost double the designed capacity of all State-owned correctional facilities. Since the statistics show that the majority of those inmates are non-violent drug offenders, the need for alternative sentencing options is a no-brainer.

The need for alternatives to jail time

In addition to the fact that our prisons are significantly overcrowded, the costs for housing all of those inmates is an enormous burden on taxpayers.  So, it makes sense to create and provide reasonable, and less expensive, alternatives for non-violent drug offenders.  Individuals who have been convicted of offenses related to controlled substances, actually have several alternatives that can be made a part of a voluntary plea agreement.

Alternative sentencing options available in Alabama

Your criminal defense attorney can request an alternative sentencing program for you, depending on your charges and other circumstances.  This is true whether you accepted a plea bargain, you plead guilty, or you were convicted after a trial.  There are several alternative sentencing options available in Alabama, including the following:

  • Drug Court
  • Drug Diversion Program
  • Work-Release Program
  • Supervised Probation
  • House Arrest or Electronic Monitoring

 

Drug Court is the most common alternative

If you are determined to make a change and commit to sobriety, drug court may be the best option for you.  The program requires weekly group meetings held in court before the judge.  However, the meetings are more casual than formal criminal proceedings.  In return for participating in these meetings, you can enjoy less supervision as long as you stay clean.  However, if you fail a drug test, which is administered regularly by the court, you can be sent to jail immediately.  In most cases, the genuinely committed participants can be successful in changing their lives for the better, while avoiding jail time.

If you have questions regarding drug offenses, or any other criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.Def

Posted in Uncategorized |