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EVERYBODY IS PRESUMED TO POSSESS "LOOSE" DRUGS IN A CAR in NY
The law is well-settled in NY in this area of practice. Basically, if there are drugs out in the open in a vehicle that you're in (like pills on the floor, or weed under a seat, or bags of drugs between two passengers in the back seat) ---then the law makes a PRESUMPTION that everybody in the car possessed the drugs. So, the police charge everybody in the car with criminal drug possession.
This rule is governed by, Penal Law, s. 220.25, which states (for automobile):
1. The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.
To make things easier, I'll break down the law.... (the purpose of this blog)
-If there are drugs out in the open in the passenger compartment of an automobile (car or truck), then the law PRESUMES that everybody knew about the drugs' presence and possessed them equally.
-EXCEPT: if the person driving is a cab driver or
-EXCEPT: if the drugs were CONCEALED by a person in the car (not out in open)
-EXCEPT: if a person in car has valid prescription and original bottle for it
-EXCEPT: if drugs were stashed somewhere else in the car and hidden, the presumption does not apply
WHAT EFFECT DOES THE PRESUMPTION HAVE ON YOUR CASE?
Well, it is something that must be overcome. It is certainly not helpful to defending your case, but it is something that can be fought. It is one of the few times in the criminal justice system where the "burden shifts" from the prosecutor to the defendant.
Normally, in our justice system, the burden of proof is on the District Attorney's Office to prove BEYOND A REASONABLE DOUBT that a particular defendant committed a particular crime.
So, the obligation is always on the prosecutor to prove stuff.
In a "car drug" presumption case, the burden is now on the DEFENDANT to DISPROVE the presumption that he or she possessed the drugs (or even knew about the drugs) in the car.
Some types of things that can be important to fight against this presumption:
-if car is not your own
-depends on where drugs were found (front seat vs. back seat)
-where you were sitting in car
-where you were going --time of day/night
-how well you know the other people in car
-why you were riding in car
Here's an Example:
Two young men were driving in the late afternoon to a supermarket. The driver was using his mother's car. They ran a stop sign and were pulled over by police. Upon peering into the car, the police officer spotted several loose pills on the floor of the front passenger seat. Both young men were arrested and charged with Class A misdemeanor drug possession.
-However, the mother testified that she had a prescription for Oxycodone due to a serious injury she had --and that the day before the boys took her car--she dropped her purse on the floor of the car and several pills must have fallen out of her purse.
She provided the prescription and bottle to the prosecutor and the young men had charges dismissed.
In this case, the young men beat the presumption that they knew or possessed the illicit drugs.
--SUMMARY THOUGHTS--
If you are riding in a car with people (especially high school and college age students), you may find yourself fighting drug possession charges if the car is pulled over and drugs are found anywhere in the passenger compartment.
If ever charged with a drug crime or Driving While Ability Impaired by Drugs (DWAI) VTL 1192.4 --it is really smart to get a lawyer as fast as possible.
BY: Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
Twitter: @ithacadwi
