So you had a problem with a neighbor, a spouse, or at a bar and the police came out and took statements from everyone.  You included.  Lucky you!  You didn’t get arrested.  The police tell you most likely nothing will happen.  It’s time to relax, right? –  Wrong!

Often times on a misdemeanor or felony case, the police investigate a complaint at the scene and for some reason they decide not to make an arrest at that time.  Perhaps they are missing a vital piece of evidence.  Maybe they need to interview more people.  Or sometimes they just can’t make a decision on whether they have probable cause.  Typically what they will do is refer the case to the State Attorney’s Office (SAO).  This is called a non-arrest referral.  Now a prosecutor starts looking at it.  The SAO may request law enforcement to gather more evidence.  Or the SAO may just sift through the evidence and decide that there is probable cause.  At that point, if it is misdemeanor you will get a certified letter of the arraignment (that is assuming you still live at the address you gave to the police).  If the charge is a felony, the SAO will issue an arrest warrant.  The next thing you’ll get is a knock at the door with a police officer ready to take you to jail.  I have seen this process take weeks, months, or even years.  It’s happening and often times you are completely unaware of it until the court date in the mail or the knock at the door.

The point is any time you have contact with a police officer and you are the subject of a criminal investigation; you should consult with a criminal attorney in your area to discuss the matter. 

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Here’s reason number 354 why you should consult with an attorney in your area prior to entering a plea to a criminal case.  The State may not be able to prove your guilt.  I just recently represented a client who was charged by the State Attorney’s Office with constructive possession of drugs in a car.  The arresting officer’s report indicated that my client admitted owning the car; but my client denied possession of the drugs.  The police report also indicated that there were two other people in the car and all of them denied possessing the drugs.  Unfortunately, my client was the only one charged in the case because according to the report, he admitted owning the car.  Fortunately, after litigating the case and a thorough review of the facts, the State Attorney’s Office made the right call and dismissed the case.  Here’s why:

 

There are two types of possession:  actual and constructive.  Actual means that the drugs in your hand or on your person.  Constructive means the drugs are in a place over which you have control or over a place in which you have concealed it.  According to Florida case law, to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over it.  However, in a jointly occupied vehicle, a defendant’s proximity to contraband is insufficient to establish constructive possession.  The law applies even to cases where the drugs are in an area of the car for everyone to see, such as a center console.  The case law further states that knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.  The independent proof is usually established through admissions.  In other words, the person in the car talks to the officer and admits to possession of the drugs.  (Please see my earlier blog:  You Have the Right to Remain Silent … USE IT! https://montronelaw.wordpress.com/2009/11/19/you-have-the-right-to-remain-silent-use-it/  If you do not make incriminating admissions, law enforcement may attempt to establish possession of drugs through DNA or fingerprints. 

 

Finally, there are appellate cases in Florida that state that ownership of the car alone is not proof positive that a person in a jointly occupied vehicle is in constructive possession of drugs.

 

Conclusion

An arrest and formal charge does not equate to proof beyond a reasonable doubt.  Do not go into a criminal courtroom without knowing everything you can about your case.  Any time you plea to a criminal charge, it has important and usually long lasting negative consequences.  It is very important to consult with an attorney in your area before you change your plea.