That’s one of the big misconceptions that people have. They always assume that if they’re honest and they’re cooperative with the officer, that the officer is not going to arrest them. That might be the case but you never know. It is recommended to always have an attorney present if you are going to speak with law enforcement, but nobody is required to speak to law enforcement just because they call you and say they want to speak with you about some drug allegations.
There’s nothing that requires you to speak to them and so you can ignore them, not answer the door, not answer the phone, and if you do choose to speak to them, the most important thing is going to be to contact an attorney before doing so. Speak with the attorney about what that issue is and in that way, you can start to formulate a defense and, if absolutely necessary, then have the attorney go with you when you speak with law enforcement.
Do Police Officers Conduct Illegal Search and Seizures? Can the Police Lie to You?
Yes! Police are allowed to lie. Generally, with respect to search and seizure, they are not allowed to go into a residence or premises without a warrant or without some sort of exigency – some sort of exception to that warrant requirement. For example, if they’re standing outside your door and your windows are wide open and they smell the meth and they smell something cooking, that is going to provide them with the exigency. There are some other exceptions; they are limited but they’re there.
Once they contact you, they can lie and they can tell you they’re not going to arrest you. They can tell you they’re looking for someone else; they can even tell you that they have a warrant even if they really don’t. Ultimately what their job comes down to is getting that evidence. If they were required to get a warrant but didn’t, the only way that they’re going to suffer any damage for that is if you actually fight the charge, file the motion to suppress evidence or something along those lines, where they then have to justify that warrant-less search and seizure. That’s how it works.
Are There Any Diversionary Programs Available for First Time Drug Offenders?
In California, there are a couple of diversion programs: Prop 36 and PC 1000, and they require slightly different things. Which one is good for the person will ultimately depend on the types of charges against them and whether they’ve been through this situation before, but generally speaking what they each come down to is basically an exchange. The person pleads guilty and then they are signed up to complete it, which is essentially a rehabilitation program.
Once they complete that program, then they come back to court about a year or year-and-a-half later and the charges that were pending against them then get dismissed. So, in a nutshell, it’s the DA saying, “If you attend rehab, we’re going to dismiss these charges”.
What Warrants Probation? How Do I Know if I’m Going to Get Probation?
That’s going to depend on whether it’s a misdemeanor or a felony charge. Most misdemeanors, unless you’re on Prop 36 or some sort of diversion program like that, are going to have a 3-year up to a 5-year probation period. Felonies will be the same thing, but the difference is in the type of probation.
Misdemeanor offenses generally carry what’s called summary probation, where you’re basically on probation to the court but you don’t have a probation officer to check in with and you’re not going to get random probation sweeps and things like that. Felony cases are the ones that are going to have the formal probation, where you have the random sweeps by the probation officer and you have to check in weekly or monthly or semi-monthly or bimonthly with your probation officer and you’ve got a lot of other terms that are included with felony probation. Which probation you get is going to depend on whether you have a misdemeanor drug charge or a felony drug charge, but either way you’ll only get probation if you’re actually convicted.
What Are the Penalties for Violation of Probation? What if I Accidentally Violate it?
If you elect to accept some sort of diversion program, random drug tests are going to be part of that program. On either summary probation or formal probation, they could be part of your probation terms depending on the scenario, depending on the case. If you violate your probation, say it’s just a dirty test for example, the judge could revoke your probation and sentence you to jail time, or they could revoke and reinstate probation on the same terms and conditions without giving you any additional jail time. The judge may give you a second chance and do nothing and let you continue probation as is. If you pick up another charge, then you’re going to be looking at that probation violation and different potential consequences for the new case as well; there may be an increase in punishment or leaving it as it is plus adding additional consequences for the new charge.
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