Alcohol & Drugs: MIP, MIC, Intoxication minor in possession querry

[Robert_Freedman]

Background: My daughter faces a minor in possession charge for marijuana. She was pulled over in California for allegedly rolling through a stop sign. No ticket was issued. The police officer asked to search the vehicle. She was alone, but had just dropped off friends. The back seat was loaded with backpacks and teenage junk. The officer found a bag containing less than an once of marijuana on the loorboard of the car. We had an attorney involved who got her a diversion program which unfortunately, she was unable to complete. She has always maintained that the bag was not hers. So she plead innocent and a court date has been set. We are going to court without the attorney because the realities seem simple: the judge either accepts that the burden of proof that she was inpossession has been met or he doen't. The question is this. My daughter states that if the bag is dusted for fingerprints, hers will not be on it. Can we request that the bag be dusted for prints and will it ultimately make any difference? Assuming her prints are not on it, should that present enough reasonable doubt for a reasonable judge? The police report indicated that my daughter stated it must have fallen out of a friends pocket. She certainly had control of the substance, but without knowledge of its presence and without her prints on the bag, is it possession?

 

[Michael Wechsler]

I don't know all the specific facts of the case so take what I say with that knowledge. Additionally, the attorney who is familiar with your case and has been handling it is in a far better position to make judgment calls.

Speaking of knowledge, criminal law requires two elements for virtually all crimes, especially those affecting life and liberty of a person. Those elements are a "guilty act" and a "guilty mind." The state must prove that your daughter had the bag in her possession and with some level of knowledge of the contents. It would probably be easiest if one of the girls claimed it was her bag which, of course, will not happen! (You may want to think about the role of your defense and the witnesses who rode in the car.) You can make a formal request that the bag be dusted for fingerprints and, if the state refuses, you should be able to have that done by your own specialists at your cost, if you wish. However, if the bag is not dusted for prints after you make a formal request, that can be an argument brought up at trial, namely that the simple process of dusting the bag for prints could easily shed a great deal of light on the guilt or innocence of your client if it were her bag but the state failed to take what would be considered obvious steps in proving that it was her bag.

However, let us say for argument's sake that the bag was in her possession -- the state must still prove that she had a guilty mind, that being that she had some type of knowledge of what was in the bag. What was in the back seat? How much stuff? All hers? This could affect credibility but still, the case seems highly circumstantial.

As I said, I don't know all the facts and the DA doesn't seem to have a whole lot of evidence for what amounts to a small amount of marijuana. You can move to dismiss the case for failure of the state to meet the burden required by law. I don't have all the facts but I've given you a couple of things to think about and apply them as you see them. It might be a good idea not to skimp on the attorney for this charge but you are better apprised of the odds and the evidence.