Common Misconceptions Regarding Drug Cases

Interviewer: What would are some of the most common misconceptions that people have about drug cases?

Glen Malia: Some of the most common misconceptions that people have on a marijuana case particularly for young kids is that it’s not a big deal. It’s just a little bit of marijuana and it’s not important, it’s not a big deal. That’s a major misconception because of how the potentially negative consequences even just a marijuana conviction can have on somebody for future purposes, whether it’s entrance into colleges, whether it’s financial aid purposes for colleges, whether it’s employment and things of that nature. Sometimes, that misconception comes about even on other drug cases, on the cocaine cases or something of that nature, that’s not a big deal, because drug convictions do carry very serious weight particularly for young people. 

Having a Marijuana Possession Conviction Can Have Serious Implications in the Future

For example, if you have a misdemeanor drug conviction and you’re applying for college for financial aid, this federal financial aid’s not available if you’ve had a misdemeanor drug conviction within the last year of the application.  So, there are a lot of collateral consequences. The other common misconception would be that they won’t be able to prove a sale case against me, for various reasons.  It’s mostly not really a misconception but something that many people are not aware of is what they call constructive possession and it comes in the misconception to what’s referred to as constructive possession of a controlled substance.

The Concept of Constructive Possession Applies to Controlled Substances in New York

Everyone understands the concept of the possession.  If it’s found on me, if I’m holding it, it’s in my pocket, I understand that that’s possession and I possess that controlled substance but the concept of constructive possession and it applies with controlled substance; it doesn’t necessarily apply with marijuana is that you may be in a situation where you’re not physically holding the drugs but you can still be guilty of the possession of the controlled substance. The perfect example is any controlled substance is found in a vehicle, in a car, unless it’s actually found on someone in the car, if it’s found within the car but not on anyone specifically in the car, every passenger of the car is presumed to have possessed those drugs. 

Constructive Possession May be Applicable on All the Persons in a Room Where Drugs are in Plain View

Even if the drug is not on your person, you would still be convicted of possessing the drugs. Another constructive possession comes about if you’re in a room and there are drugs in a plain view, everyone in the room there’s a presumption in a statute that everyone in the room possesses those drugs. I don’t know if that would  be a misconception but it’s just something that people are unaware of that just by being in a car, you could be found guilty of possessing drugs, you may not even have known about it in the car. Another misconception when it comes to marijuana, they say, “The sale of marijuana is more serious than a simple possession of marijuana. 

Handing a Joint to Another Person Can Potentially Result in Sale of Marijuana Charges

It’s generally may be a low level felony or it’s a class A misdemeanor”, and people don’t realize that underneath your state law, you don’t have to give it to someone get -- you don’t have to give drugs to someone and be paid for them. If you merely give drugs to someone even though you don’t get paid, that seems to be a sale in New York State law.  So, a situation where you have a couple of people sitting around in a car smoking a joint or something of that nature, if the cops can establish that you handed that joint to the person next to you, you can actually be charged with the sale of marijuana. The same thing happens with other drugs but obviously, because it used to be years ago when I first started practicing or several years after I first start practicing when crack cocaine was really, really big.  If a couple of people were sitting smoking crack cocaine in a crack pipe and something like that and one person was seen handing that pipe to another person, then that could have been a felony sale as opposed to a simple controlled substance possession.

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