Before answering this question, it’s important to differentiate between “charging” someone with a drug-related crime, and “convicting” someone of that same crime. In this context, to “charge” a person means simply to file an accusatory instrument with a local criminal court and require that the the individual charged appear in court to defend themselves. In order to achieve this, the strength of the evidence only needs to meet a very low threshold – much lower than the standard of proof needed to convict the person at trial. That being said, in the context of drug-related charges, it is not good enough for the police officer or other member of law enforcement to simply state the substance is cocaine, or heroin, or OxyContin, etc. The drafter of the complaint must support that conclusory assertion a but more than that, but not much. One thing the drafter does NOT need is a laboratory report or any other kind of scientific test confirming that the substance is what it is alleged to be.
So what do the police need to support the allegation that a substance is suboxone, or ecstasy, or any other illicit substance? In People v. Kalin, 12 NY3d 225 (2009), the Court of Appeals of the State of New York, the highest court in the State, held that the police or other members of law enforcement who are alleging that a substance is in fact a controlled substance of some kind can rely on their training and experience and simply rely on their senses and circumstantial evidence to make a conclusion regarding what the substance is, at least for the purposes of a facially sufficient criminal complaint. What this means is that a police officer who has had some kind of experience with drug-related arrests can look at a substance, see that it’s brownish and powdery, use those observations to conclude that the substance is heroin, and that’s probably good enough to move the case forward.
This can be an alarming fact, but it’s important to remember that this extremely low bar to charging an individual with a drug-related offense is far from the same standard needed to sustain a conviction. The District Attorney will eventually need to have the substance tested and provide a laboratory analysis report to the Court and the defendant’s attorney verifying that the substance is what it is alleged to be. However, in some instances that’s too late to undo the harm that’s been done simply by the arrest and/or accusation. A misidentification of a controlled substance and the accompanying prosecution can lead to the loss of a job, damage to personal relationships, the search of the defendant’s belongings that would have been illegal if not for the initial misidentification, etc. If you are charged with a drug-related offense in New York, it is important to have a criminal defense attorney who can not only defend you and protect your rights, but who understands the real-world impacts that an allegation of this nature can have, and who understands the intricate behind-the-scenes dynamics of these kinds of charges.
This blog entry is not an attempt to substitute for an examination of your particular case by your own criminal defense lawyer who will determine what is best for your case. Instead, this entry can give you the foundation to better understand drug-related offenses. To better understand these crimes, possible defenses, and how you can best protect yourself, consult with your criminal lawyer.