How to beat a cannabis charge

The most important thing is to know your rights and understand the law. If you've made breaking the prohibition law your lifestyle choice, you should understand how it works so you can most effectively beat it.

First, take a few minutes right now to read the Your Rights page in the Main Menu on the left. Even if you've read it before, or think you know your rights already, do it again. Go on, do it now.

Done? Now that you know your rights, role play some stuff with your mates. One or two can pretend to be cops and the rest can be some mates they want to hassle. Practice declining consent for a search by saying "No I do not consent to a search, what is your lawful authority?" (remember, silence is taken to mean consent, so you must voice your refusal to consent to the search, even if they have a warrant or invoke the MDA s18). Practice remembering all the details (everything that was done and said) which will really help if it happens for real and you need to go to court. Practice keeping your mouth shut and not making statements. This will help make it second nature if and when you have an interaction with the law.

The next thing you need to do is understand how the law works. For police to prove a charge of possession or supply etc, they need to prove all of these conditions:

1. that it is an illicit drug
2. that you knew it was an illicit drug
3. that you are in control of it
4. that you intended to use/possess/sell it for illicit purposes

Many people caught with cannabis think that if 1. above is satisfied, (that it is cannabis) then they are guilty. So they plead guilty "to make it easier", but that just makes it easier for the police! Remember, police need to prove all 4 conditions, not just one or two. If they had pleaded not guilty, police would still have to prove 2-4 above to prove the charge and secure a conviction. Yet there could be many reasons why you had a controlled drug, but did not know that's what it was, or you were not in control of it, or you didn't intend to have it for illicit purposes.

Denying "knowledge": After finding some cannabis, police will always ask "what is this?" and will get you to identify it - so that you have shown you know it is a controlled drug and condition 2. above is satisfied. But you could just as easily reply that it is damiana or herbal tobacco, or anything legal, as far as you know. If that's what you think you bought and what you think you possess, then condidtion 2. above is not satisfied and the charge will not stick. It doesn't matter that it wasn't damiana and was in fact cannabis, the key point is that you thought it was damiana (for example).

Denying "control": the cannabis could be kept in a communal area, it could be under the passenger seat in the car (rather than the driver's seat) as that hitchhiker must have left it there, plants could have name tags on them that say they are someone else's, the pants you are wearing might not be yours (so neither is the pot in the pocket)... There are all sorts of ways of denying control, the main thing is to deny it and not just admit it's yours and hope that because you are nice to the cops they will be nice back. NORML activists have spent many years dealing with people who have been busted, and one major lesson is that the cops are seldom nice back, and all it really does is make their job easier and you more likely to be convicted.

Denying "illicit intention": The Misuse of Drugs Act says it is a defense to be in control of drugs if you found them or confiscated them and are looking for the nearest police officer or police station to hand them in. It says it right there in the Act, and this is a perfect defense for anyone caught red-handed. Just say "wow, it's great I found you, I've been looking for a cop to hand this in. I just found it on the street, must have been those damn gangs (etc)".

At the station: assuming you have been arrested anyway, and you're at the station - don't answer any questions, don't make or sign a statement, and generally refuse everything the police ask you to do (although always be calm, civil and polite and don't resist physically). It is what happens in court that counts, not what happens at the station or what the police claim will do or not do. Just keep quiet, put up with their threats and lies, and in a few hours you'll be out and ready to prepare for your court appearance.

In court: If you made and signed a statement admitting the weed was yours, you will have reduced your options and probably made a conviction more likely. If you didn't answer any questions and didn't sign a statement, you still have all your options open. You can fight the charge or still plead guilty if you want to, but the key point is that your options are still open.

At your first court appearance enter no plea and get the police "disclosure" file, which contains all the evidence they have against you. See what sort of case they have before deciding what to do (Note: if you plead guilty, you do not get the disclosure file and will never find out that they may have actually had a very weak case that would not have stuck in court). Think about how the points above about denying knowledge, control and intention fit into the circumstances of your case. Pay particular attention to what happened before and during the search. Did they have lawful authority? Did you consent or refuse consent? Was their suspicion "reasonable"? Was any warrant correctly signed, dated and served? Were you read your rights? Were you lawfully or unlawfully detained? Were you given access to a free lawyer at the station? Even if you were caught red-handed, you may get off on a "technicality" if police didn't follow correct procedures.

Talk to a lawyer. If you cannot afford one, see the Duty Solicitor in court, or talk to the court Registrar about getting Legal Aid.

Unless stated otherwise, copyright © 1998-2005 by NORML New Zealand: working for marijuana law reform

Published on: 2009-02-10 (13128 reads)