No Drugs Needed. Alabama Court of Criminal Appeals affirms Manufacturing of Methamphetamine conviction without any drugs.

This past Friday, the Alabama Court of Criminal Appeals issues an opinion in the case of Wallace v. State of Alabama, 2013 WL 598057 (Ala.Crim.App. 2013). The defendant has been charged with Unlawful Manufacturing of a Controlled Substance – Methamphetamine in violation of Code of Alabama Section 13A-12-218 and Chemical Endangerment of a Child in violation of Code of Alabama Section 26-15-3.2(A).

The facts are a little confusing, but needless to say when the officers arrived at the house looking for stolen property, the wife consented to a search. Once inside, the officers didn’t find any stolen property but did find a “shake and bake” lab set up in a 2 liter coke bottle in the closet of the defendant’s bedroom. Additional items commonly used in the production of methamphetamine were also found in the home such as a funnel, rags, coffee filters, butane, and salt.

During the course of the trial, the State called the lead detective. He testified that he had special training in drug interdiction and was familiar with “shake and bake” meth production. He testified in detail about the process of producing meth from the beginning to the final product being produced. He testified that the lab he seized was only about half way through the process.

No expert testimony was received during the trial. The contents of the 2 liter bottle were ever analyzed by the Department of Forensic Sciences to determine if a controlled substance was actually present in the bottle.

The defendant was ultimately convicted. The defendant naturally filed an appeal arguing that without a controlled substance the defendant could not be convicted of manufacturing a controlled substance. Since no evidence had been admitted during the trial to prove that a controlled substance was present, you would think the conviction would be reversed.

Seem logical enough to most of the criminal defense attorneys I have spoken with. But clearly this same logic seemed to escape the Alabama Court of Criminal Appeals. The conviction was affirmed.

The Alabama Court of Criminal Appeals went to great lengths to detail other cases in which a defendant was convicted of possession of a controlled substance without that substance ever being tested. Key among their arguments was the case of J.M.A. v. State, 74 So.3d 487 (Ala.Crim.App. 2011) which provides a list of 4 Alabama cases that held a properly trained law enforcement officer could identify the appearance and smell of burning marijuana and therefore no additional testing was required.

There is a huge difference between the identification of marijuana and the identification of liquids inside of a 2 liter coke bottle. Marijuana has a distinct appearance and smell when burned. On the other hand, there are a lot of different ingredients that go into a methamphetamine cook. They must be added at precisely the right time and in the right order to have any chance of producing actual methamphetamine.

What if the defendant missed an ingredient along the way? What if he the added to much or to little of any particular ingredient? What if the defendant was just a lousy meth cook? How do you know what the end result will turn out to be until the process has run its’ course? How can a law enforcement officer legitimately know what is inside of that 2 liter bottle without some form of forensic testing? Is this proof beyond a reasonable doubt? I think not.

The Alabama Court of Criminal Appeals has gone out on a limb with this opinion. It is one thing to say that a trained law enforcement officer can identify marijuana without further forensic analysis, but it is another thing to say that a liquid consistent with the production of methamphetamine is actually methamphetamine without forensic analysis and confirmation. Their logic is flawed and appears to be an attempt by the Court to affirm the conviction at all costs.

This is bad law and needs to be challenged. Hopefully the defendant will seek certiorari to the Alabama Supreme Court.

If you have questions about a drug charge, contact the t Law Office of Michael P. Hanle or call 1-205-930-9717 to speak with me directly.

Thankful Client

Being a criminal defense lawyer can be a thankless job some days. Judges don’t like us. Prosecutors don’t like us. Victims don’t like us. Hell, even our client’s don’t like us some days. Client’s can be ungrateful SOBs sometimes.

However, every once in a while. Out of the blue comes a different kind of day.

Today was one of those days.

I have been working on a drug trafficking case for the last year or so. Client was pulled over for a traffic violation. When the cop gets to the drivers side window, the marijuana smoke rolls out and into his face. Having learned something on the street, my client promptly tells the cop that “there ain’t no more weed, we smoked it all.” Needless to say, after arresting him for driving on a revoked license the police find cocaine and oxycodone inside his vehicle.

We were in court this morning prepared to enter a guilty plea or begin a trial. We have spent countless hours discussing the facts of his case. We have discussed trial strategies and plea offers. I prepared and filed a suppression motion in an effort to keep out some of the evidence. I have spent a lot of time thinking about this case and the best way to defend my client.

I have beaten the District Attorney down from her original plea offer of a 20 year sentence. I managed to get her to offer a 20 year sentence with 3 years to serve when my client asked for a split sentence offer. I finally got her to offer a 15 year sentence with 3 years to serve. I have worked hard for my client and listened to his requests and finally got a straight 15 year offer.

Today, on my advice, my client entered a guilty plea and applied for probation. He realized that the facts and law were against him and taking his case to trial would mean a longer sentence. We will be back in court in April to argue for probation before a judge who will listen to my arguments.

He called me this afternoon to tell me thank you. He said that sitting in the courtroom this morning, talking to other people, made him realize what a great job I have been doing for him. Other people were talking about their problems and what their lawyers had been doing for them. It has taken my client over a year, but he understands how hard I have worked for him.

Even though I know that I am good at what I do, it still is nice to hear it from my clients from time to time.

Sitting in my office smiling this afternoon. Thanks.

Guest Blog by Attorney Adam H. Rosenblum

Federal Drug Charges

Facing criminal charges of any kind can be a stressful experience. There are hundreds of thoughts running through your head and quite frankly it can be pretty scary not knowing what may happen to you. If you have been charged with a drug-related offense it is important to recognize that the charges you face can easily be elevated from the state level to a federal offense. Federal drug charges have stricter penalties than state-level charges. The DEA and FBI take an active role in federal charges and will investigate the matter fully to help federal prosecutors obtain a conviction.
In 1970, the federal government passed the Drug Abuse Prevention and Control Act which outlines federal drug laws. Federal drug charges range from possession, distribution, sale, cultivation, trafficking and manufacturing of various controlled dangerous substances. The severity of the penalties you face will depend on many different factors such as:

• The amount of drugs involved
• Whether you were transporting the drugs across state lines
• The type of drugs involved
• Whether you have any prior criminal or drug-related history
• Whether any person was killed or injured
• Any evidence that will support a conviction such as weapons, large amounts of cash, prepaid cell phones and measuring scales.

What should I do if I am being charged with a drug crime?

Whether on the state or federal level, you should always exercise your right to remain silent and have an attorney present. Remaining silent will protect you from law enforcement agents and the federal prosecutor from gathering information to build a case against you. Remember that anything that you say can and will be used against you in a court of law. Do not discuss your case with anyone except your lawyer.

A lawyer will advocate on your behalf, fight for your rights and make sure you are being treated fairly. It is also important that you tell your attorney the full truth about your case. Information you share with your attorney is privileged and it is crucial that your attorney knows all the facts about your case before he begins building your defense. An attorney will examine the evidence the state may have against you and be able to devise a legal strategy to help minimize the damage and in some cases help you avoid a conviction.

Do I Have To Stay In Jail Until My Trial?

There are several factors a judge will have to consider before releasing you on bond while you await your trial. A bond hearing is usually set within a certain amount of time after your arrest. A judge or magistrate will review a report about the charges, your background and criminal history and whether there are any factors that make you a flight risk in not returning to court. Some factors that can weigh in your favor are: having little to no criminal history, solid community and family ties, employment history and being a US Citizen. A judge will usually raise the bond or deny it all together if you have an extensive criminal history or if there was violence in the present crime. Having a lawyer present during a bail hearing is important because a lawyer knows what information to present to the judge in helping you be released before trial.

What Kind of Defenses Do I Have Available To Me?

If you are arrested on federal drug charges it is likely that the DEA, FBI and local police are all working together with the prosecutor’s office (i.e. the U.S. Attorney) in building a strong case against you. An experienced attorney will know how to raise appropriate challenges in court to keep certain evidence or statements from being admitted into evidence against you. Also, attorneys can determine if the government has sufficient evidence to support a conviction or whether the search and seizure violated your constitutional rights. An attorney can analyze all the evidence that is against you and determine whether law enforcement followed all necessary procedures.

What Are Some of the Penalties If I Am Convicted?

Federal offenses carry harsh criminal penalties from heavy fines and significant jail time. A conviction also will be a part of your criminal record which can affect your ability to obtain college loans, decrease future employment opportunities and prevent you from obtaining a professional license. If you are facing federal drug charges you should not delay in hiring an experienced attorney to fight on your behalf.

If you are arrested or being charged with a drug offense, a lawyer can review the facts of your case and determine whether your constitutional rights have been violated. There are many defense strategies that a lawyer can use to help protect your rights.

Author Bio

Adam H. Rosenblum is the principal attorney of The Rosenblum Law Firm who is licensed to practice in both New York and New Jersey. You can visit his website at http://rosenblumlawfirm.com/

Finally

In August 2009, I opened a new file for a young lady who had been charged with a DUI. Little did I know it would take nearly 3 1/2 years to close that file.

I was able to get my client enrolled in a deferred prosecution program that would ultimately result in a dismissal of the DUI case. Little did I know that she was addicted to pain pills and was taking methadone to beat the addiction.

Things quickly went bad. She picked up a second DUI and failed to comply with the terms of her program. A warrant was issued and she ultimately pled guilty to the DUI that I was handling in late 2010. As part of her plea, she was still required to complete a DUI program and complete 10 months of monitoring.

Unfortunately, she relapsed and her addiction to pain pills began to spiral out of control. My client was lucky. She has a loving family and the support of good friends. During 2011 and 2012, she was in and out of drug treatment facilities in Alabama and Florida. She didn’t have a lot of money but she scraped together what was needed.

She has now been clean and sober for over a year. She continues to follow through with meetings and counseling. Her life is drastically different thanks to the support that she received from her family and friends. This is not uncommon but is the exception rather than the rule.

Last night I was able to get the court to terminate her probation and close her file. She was fortunate. The system worked for her. I was proud to give her a hug and send her on to begin the next chapter of her life.