What is the difference between a felony and a misdemeanor?

Felony drug charges carry significantly higher penalties than misdemeanors.  While the maximum jail time that can result from a misdemeanor conviction is one year in jail, felony drug charges can result in prison terms up to life in prison.  The amount of time is determined by the level of the misdemeanor or felony.  Class Y felonies, the most serious, can result in 10-40 years, or life in prison.  The prison terms and fine amounts for the other felony levels are as follows:  Class A felony:  6-30 years/fine up to $15,000; Class B felony:  5-20 years/fine up to $15,000; Class C felony:  3-10 years/fine up to $10,000; and Class D felony:  up to 6 years/fine up to $10,000. Misdemeanor jail and fines are as follows:  Class A misdemeanor:  up to one year/fine up to $2,500; Class B misdemeanor:  up to 90 days in jail/fine up to $1,000; and Class C misdemeanor:  up to 30 days in jail/fine up to $500.  Another important difference is that misdemeanor jail time is served in a county jail as opposed to a prison within the Department of Corrections as is the case with felony convictions.

Are there any other penalties for drug convictions?  

The main penalties that people think about for drug charges are the prison terms that they may face.  People are also familiar with the fact that they may be facing stiff fines for criminal convictions.  Some of the lesser known and not often considered consequences are those that are not easily measured, such as loss of standing in society and your inability to get the kind of employment you are hoping to find.  All drug convictions result in a suspension of a person’s driver’s license.  Felony convictions also result in a person’s loss of their rights to vote and possess firearms.  

What kinds of drug cases have the CCR attorneys defended?

The lawyers at Collins, Collins & Ray, P.A. have represented people charged with all different kinds of drug charges.  They have handled cases ranging from 1 gram of marijuana in someone’s pants pocket to 1 ton of cocaine concealed in a tractor-trailer rig.  Their experience with drug cases extends to both state and federal court and they have dealt with law enforcement investigators ranging from local sheriff’s offices to federal agencies such as the DEA, ATF, and FBI.  The charges our clients faced ranged from possession to manufacturing and trafficking drugs.  Our attorneys have successfully handled many seizure and forfeiture cases involving the seizure of guns, cars, houses, and cash.

Is possession of marijuana in small amounts still a crime?

Yes, it is still a crime to possess marijuana, even very small amounts, in Arkansas.  However, the Arkansas Legislature recently changed the laws related to marijuana possession and the possession of smaller amounts, less than 4 ounces, is now a misdemeanor offense.  Possession of more than 4 ounces is still a felony in Arkansas.  There are a number of factors written into the law that establish whether there was possession with purpose to deliver.  The voters of Arkansas recently voted to allow medical marijuana.  This change has helped influence the general population’s perception on marijuana use.  The rules are currently being debated and yet to be established but soon you will be able to possess marijuana with a medical prescription.

What is the difference between a felony and a misdemeanor marijuana charge?

A simple felony marijuana possession charge can result in up to 6 years in prison for a first offense and fines up to $10,000.  A misdemeanor marijuana possession offense can still result in up to one year in jail, but it can also result in a diversionary probation program which can keep it off your record if you complete the program.  A drug conviction of any kind does result in a six month driver’s license suspension, regardless of whether you were in a car.

What are the most common ways that police interactions with the public lead to drug arrest?

One of the most common experience that leads to drug arrests are routine traffic stops during which the police find drugs in the car or on the person of the driver or a passenger in the car.  Other common situations involving motor vehicles include:  roadblock stops; canine searches; weight station stops.  Situations not involving motor vehicles that lead to drug arrests include:   “knock and talk” circumstances, wherein the police knock on your door and request to search the premises; buy busts, which usually involve undercover narcotics agents making controlled buys of drugs; conspiracy investigations; search warrants that result from police investigations in which the police have been able to show a judge there is probable cause to believe there are drugs on the premises.

What is “constructive possession”?  

It is a legal argument used by the prosecution when defendants argue that they did not, in fact, possess the drugs with which they are charged.  Constructive possession means that the prosecutor must prove that although the defendant did not have the drugs on his or her person, the defendant can be found to be in possession of the drugs because of the circumstances surrounding the finding of the drugs.  In order for this argument to be successful, the prosecution must show that the substance was in close proximity to the defendant; the defendant had exclusive control of the substance; and that the defendant knew or should have known about the illegality of the substance.   Imagine the circumstance in which our children might find themselves riding with a friend who has a backpack full of drugs in the backseat.   They may be close to the drugs and may be able to control the drugs, but the question then hinges on whether they knew the drugs were in the backpack.  The attorneys at CCR Law Firm understand and have used this complicated legal argument to successfully win numerous cases for their clients.

What if the police did not read me my rights?

The rights that police read to people upon arrest are the “Miranda” rights.  The “Miranda” rights were the result of a federal court cases in which a person named “Miranda” successfully argued to the United States Supreme Court that statements he made to police should be inadmissible in court because the police failed to tell him he did not have to answer their questions or that he had a right to have an attorney present during questioning by police.  Our clients, and the general public, are often confused about what protections the Miranda rights actually provide.   Just because the police failed to read you your Miranda rights does not mean that your arrest was illegal or that all statements made by you will not be admissible.  The timing of when the police read the Miranda rights and the types of statements that are made by people in police custody are also very important in determining whether the statements will be held inadmissible.  Statements made to police while a person is in police custody and in response to police interrogation are subject to the Miranda rule.  If the statements are made voluntarily or if they are made prior to being in police custody, then they are admissible whether the Miranda rights were given or not.  However, the question of whether a person is in custody or whether the statements are voluntary have been areas of successful argument for the CCR Law Firm attorneys to be able to have their clients’ statements suppressed.

What is the 4th Amendment and how does it apply to my drug case?

The 4th Amendment is one of the core rights found in the United States Constitution.  It basically states that citizens of the United States shall be free of unreasonable searches and seizures by law enforcement.  Many people know that the 4th Amendment is applicable to search warrant cases, but even with cases that do not involve search warrants, the 4th Amendment applies to numerous police interactions with people.  There are exceptions to the warrant requirement, for example, when the police have a vehicle stopped on the side of the road, but the police under these circumstances are not free to search through all areas of someone’s vehicle simply because they have pulled someone over for a traffic violation.  The attorneys at CCR Law Firm can review your case to determine whether or not there has been a 4th Amendment violation in the police interaction with you.  When there has been a violation of your rights under the 4th Amendment, the remedy is often the suppression of the evidence that the police obtained illegally.   

What kinds of drugs do your clients get charged with?

CCR Law Firm attorneys have represented clients with a wide range of drug charges, including:  mushrooms, ecstasy, methamphetamine, cocaine, oxycontin, MDMA,  hydrocodone, hydromorphone, heroin, marijuana, valium, benzodiazepines, roxy, adderall, clonazepam, and various other prescription drugs.

What is the difference between possession of drugs and possession of drugs with the purpose to deliver?

Possession of drugs without the intent to deliver is often called simple possession (intent and purpose are used interchangeably when related to this issue).  It means that you are being charged with having the drugs in your possession, but that law enforcement does not believe that you possessed them with the intent to deliver them to another person.  “Deliver” can mean selling the drugs or simply giving them to another person.  Possession with the intent to deliver carries much harsher penalties than simple possession.  When a person is charged with possession with the purpose to deliver, the police are usually unable to show with certainty what someone’s actual intent is; therefore, there are a number of factors that can be used to show purpose to deliver.   For example, they may show that a person:  has the drugs separated and packaged in a way designed to facilitate delivery, or that he or she has the means to do so, such as scales or Ziploc bags, has a record of drug-related transactions or has two or more controlled substances in any amount.  Possession with intent of methamphetamine or cocaine is charged as a Class C felony if the amount is less than 2 grams, a Class B felony if it is more than 2 grams and a Class A felony if it is 10 grams or more, but less than 200 grams.  The level of punishment for delivery of cocaine or methamphetamine is also determined by the weight of the drug.   A person will get a Class C Felony for less than 2 grams; a Class B felony for 2-10 grams; and a Class Y felony for 10-200 grams.   

Is there a way to get drug charges reduced?

There are numerous ways to get drug charges reduced and the attorneys at CCR Law Firm know that even in cases in which there is no way that a Not Guilty result can be achieved, it is often very helpful to get the charges reduced.  For example, we may get a possession with intent reduced to a simple possession by getting some of the seized drugs suppressed.  In cases where a person is charged with manufacturing methamphetamine or cocaine, which, if the amount is more than 2 grams, is a Class Y felony, the charges may be reduced to a Class A Felony if it is shown that the amount manufactured was for personal use.   This can be shown by the fact that the person did not make a delivery of the drugs and by the method of manufacturing as well as the amount manufactured.  The attorneys at CCR Law Firm have been very successful in negotiating with prosecuting attorneys to get drug charges reduced from felonies to misdemeanors.  We have a reputation for being very aggressive in court and this reputation can sometimes help in negotiations.

What is drug trafficking?

For the purposes of criminal prosecution, drug trafficking is determined by the amount of the drug that is possessed, whether with the purpose to deliver or not, or manufactured.  The amounts necessary to qualify for trafficking of a controlled substance is as follows:  Methamphetamine or cocaine-200 grams or more; Schedule I or II controlled substances-200 grams or more; Schedule III controlled substances-400 grams or more; Schedule IV or V substances-800 grams or more; and Schedule VI controlled substances-500 lbs or more.  Trafficking a controlled substance is a Class Y felony.

What is drug paraphernalia and what are the penalties for its possession?

Drug paraphernalia falls into two main categories.  One is that paraphernalia that is a class of items that are used to inject, inhale or otherwise introduce controlled substances into the human body.  Possession of this type of paraphernalia is a Class A misdemeanor unless the controlled substance is methamphetamine or cocaine, then it is a Class D felony.  Drug paraphernalia is also any item that is used to grow, manufacture, prepare, process, store, analyze or otherwise relates to the preparation of controlled substances.  Possession of this type of paraphernalia is a Class D felony unless the controlled substance is methamphetamine or cocaine, then it is a Class B felony.  

What are penalty enhancements?

Penalty enhancements are situations in which the circumstances surrounding the arrest for drug charges result in additional or enhanced penalties.  Examples of penalty enhancements include possession of a C-felony amount of a controlled substance within 1000 feet of certain facilities, including churches, schools, city or state parks, day care centers, etc.   This enhancement can add an additional 10-year prison term.  Subsequent convictions for drug offenses can result in enhancement of the latter conviction by 2times the prison term or 2times the fine amount.  Delivery of a controlled substance to a minor can also result in an additional sentencing to twice the prison term.

What is drug court and how do I know if I qualify for the program?

Drug courts are programs designed specifically for people facing drug charges, as well as other charges that may be related to their drug issues, and that assists people in getting treatment for drug problems rather than simply punishing them.  The use of these programs is an attempt to lessen the load on prisons and county jails for those who may be kept out of that system through treatment.  They have been set up by statute and most counties now have some kind of drug court program.  The statute specifies that the program shall be run by the Department of Community Correction and that the programs shall:  serve high-risk offenders and medium-risk offenders; provide drug testing for the participants; provide intensive outpatient as well as short and long-term inpatient residential treatment for participants; identify those participants with a substance addiction and provide a treatment plan to improve the participant’s likelihood of success.  The programs may also provide for continuous alcohol monitoring, which is done through an ankle monitor device.

The drug court program is not available to any defendant who has a pending charge for a violent felony or has been convicted of a violent felony.  It is also not available to anyone who must register as a sex offender.  Each court may also further restrict the eligibility of defendants in their particular program.  

If a participant completes the drug court program his case may be dismissed by the drug court Judge and the case may then be sealed.  The drug court Judge may order dismissal and sealing of record for conviction from another court if the program is completed.  There are exceptions for what kinds of convictions can be sealed.  For example, the following offenses can’t be sealed under this program:  residential burglary, commercial burglary, breaking or entering, and a fourth or subsequent offense for DWI.  

What if the police seized my property or money when I was arrested?  Can I get that property returned to me?

When people are arrested for drug charges, it is not uncommon for them to have property seized by the police.  The legal process by which this is accomplished is called “civil forfeiture.”  A civil case is actually started when the prosecuting attorney sues in civil court for the property seized by the police.  The prosecuting attorney must show that there is probable cause to believe that the property was used for drug activity (such as a vehicle in which drugs are transported) or is the proceeds of drug activity (such as money). An answer must be filed by the person whose property is seized or the property will be retained by default by the seizing law enforcement agency and either used or sold by that agency.  The forfeiture procedures are established by statute which provides that any money or firearms found in close proximity to a forfeitable controlled substance or paraphernalia is presumed to be forfeitable under the statute.   The owner of the property can rebut that presumption by providing evidence that the act was committed without his knowledge or consent.   Real property may also be forfeited under this statute if the property substantially assisted in, facilitated or was intended for use in the commission of a violation of the controlled substances laws.  CCR Law Firm has successfully fought civil forfeiture cases for their clients.  If your property has been seized you only have a limited time to file a response to the forfeiture, so call someone immediately.  Our number is 501-603-9911.

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