Whether you were stopped with a little bit of marijuana or arrested with large amounts of meth for possession with intent to distribute, most of the keys to fighting a drug charge are the same.
Most drug possession cases are serious felony charges. Simple possession of most drugs is a Class 4 Felony in Nebraska. In addition to possible prison time, a felony conviction can have a negative impact on your life.
For your information, below are 10 possible ways to fight a drug charge in Nebraska.
Of course, this is not legal advice and is for informational purposes only. If you are facing drug charges in Nebraska, we recommend you consult with an experienced criminal defense attorney.
Did the Police Have a Legal Reason to Contact You?
The first line of attack in any drug case is the legality of the search and seizure of the drugs in the case. All arrests start with some sort of initial contact with the police.
If you were in your car, that would be the moment you were pulled over. If you weren’t in a car, it would be the moment that you first had contact with police.
Why does this matter? As a general rule, the Constitution protects people from random contact and searches by the police. For example, the police need to have a valid reason to pull you over or to make contact with you.
If the reason for the initial contact was not legal, any evidence that was seized could be thrown out by the judge.
You Got a Warrant for That? Was the search for drugs legal?
Just because the police had a legal reason to initiate contact with you does not mean they have automatically have the right to search you, your vehicle or your home.
Police do not always need a warrant to search. There are exceptions depending on what they are searching and the circumstances surrounding the search.
As a general rule, police do not need a warrant to search your car, but they must have probable cause. Whether or not they have probable cause depends on the facts of your case. For example, if an officer walks up to a vehicle and sees drugs in plain sight on the dashboard, that would be probable cause to search the rest of the vehicle.
They Didn’t Read Me My Rights: Miranda Warnings and Statements.
You’ve heard it from your friends and you’ve seen it on t.v., but what does it really mean? If the police do not advise you of your right to remain silent, it does not mean that your case is automatically thrown out.
Instead, a violation could mean that any statements or admissions that you made to law enforcement may be thrown out. This doesn’t mean the case is tossed, it just means that it will be harder to prove.
Miranda warnings do not apply to all statements. It only applies to “custodial interrogation.” In other words, you must not be free to leave and the the police must be asking you questions.
It wasn’t me. Can the State prove the drugs were yours?
Under Nebraska law, a person must “knowingly and intentionally” possess the drugs they are charged with. What does that mean?
In theory it means that you can’t be charged with drug possession if you don’t know the drugs are there. If someone left drugs in your car that you didn’t know about, you shouldn’t be charged.
Unfortunately, in reality if the police find drugs in your car, they are going to charge you. The key will be to find a way to show that you did not know the drugs were there.
Other tricky situations come up when you are a passenger in a car, a guest in a house or anywhere near where drugs are found by the police. This will depend on the specific facts of the case.
Personal Use or Distribution? Can the State prove you intended to sell or distribute?
In Nebraska you can be charged with possession of drugs and you can also be charged with possession with the intent to deliver. When you are charged with selling or the intent to deliver, the penalties go up significantly.
In these cases, the State must prove that you not only possessed the drugs, but that you also intended to sell or distribute the drugs. Unless you are caught selling to a confidential informant, the State will need to prove the intent to distribute through circumstantial evidence.
This can be a combination of things, like a large quantity, scales, baggies, phone messages, owe lists, etc. Many times when these cases are filed, there is nothing more than a large quantity, so it can be a good strategy to press on this issue.
Are those even drugs?! Laboratory testing and challenges
This might seem obvious, but this is often overlooked. In serious drug cases, it’s not good enough for a police officer to testify that he found drugs on someone.
The suspected drugs must be sent to a laboratory for testing to confirm that the chemical composition of the substance is in fact an illegal drug in Nebraska.
It is a mistake to overlook this. Just because there is a test result from a State laboratory does not mean you should accept it as true. Labs are subject to testing and handling errors and are sometimes just wrong.
Are those the drugs from the scene? Chain of Custody Issues.
Chain of custody refers to accounting for the alleged drugs on their path from the time of arrest to an actual trial. In order for the State to introduce the drugs as evidence at trial, they should be able to establish the chain of custody.
The purpose of this is to establish that the drugs collected at the time of arrest are the same drugs that were sent to the lab and that the same drugs that were sent to the lab, are the same drugs offered as evidence.
Once you have the lab reports back showing that the drugs are alleged to be confirmed, you can file a motion for independent testing. This means that you would arrange to have the drugs sent to another laboratory for scientific analysis.
As mentioned before, labs are subject to error and variance in interpretation. A second opinion is often a valuable route to go.
Digging Deeper. Hiring Investigators to get the Rest of the Story
At the end of the day, most criminal trials are based on one side of the story. . . and its always the police officer’s version. Too many people don’t seek out witnesses that were there but not interviewed by police.
Even if a witnesses did speak to police, it is also necessary to talk to those witnesses as well. You might be surprised to learn new facts that were omitted from the police reports.
If you have the resources, hiring an investigator to interview and investigate can be an invaluable addition to your defense.
When all else fails. . . Treatment and Drug Court Options
This last one isn’t really a defense or a tactic to fight the case. If there are no good defenses you need to start thinking about how to lessen the blow. Whether that means avoiding or lessening jail or prison time depends on your situation.
Treatment is also a good option if you are struggling with drug addiction and are ready to get help. Sometimes a “nudge from the judge” helps push people to deal with the issue in their life.
Either way, seeking treatment is a way to lessen punishment in most drug cases. Also, most jurisdictions in Nebraska have some form of drug court. The details vary from county to county, but the idea is that you can have your charges dismissed if you complete an intense program of treatment, recovery and accountability.
In the end, the best way to fight your drug case will depend on the specific facts of your case and the charges you are facing.
No matter what happened, whenever you are charged with criminal charges in Nebraska, you have rights. Know your rights and you will be able to make better decisions about your future. The stakes are too high to do anything less.