What to do if You Are Arrested For Drug Possession


Getting caught with drugs is a serious matter, with a part of the population (especially younger people) not knowing the consequences of being caught with illegal substances in their custody or control, it is a crucial topic to be discussed.

In 2013 the National Drug Strategy Household Survey presented to the public that 2.9 million Australians aged 14+ has used illegal substances in the previous 12 months and furthermore, the survey also found that Australian adults use more drugs than other adults around the world, 15% of Australian adults compared to 5% per cent of adults around the world.

There are some people who seek for drugs to be decriminalized altogether, with noticeably a group of former premiers, judges, practitioners, legal advocates and police commissioners that called for the decriminalization of drugs in 2016 in a report titled ‘Can Australia Respond To Drugs More Effectively And Safely?’ This report included providing further health and safety services for drug users and undermining the black market on drugs by introducing the ‘white market’.

Nonetheless it is still a crime to be found in the possession of a prohibited substance currently and maximum penalties of imprisonment and/or fines can apply, depending on the charge.

If yourself, or a friend has been arrested for having drugs on them, it is important to get professional advice from a qualified and experienced Sydney drug lawyer like Ross Hill.

What is drug possession?

This is best defined as when someone has been found with an illegal substance in their custody or control, even if it was only momentary custody or control.

Custody – Physical possession of the substance, in your pocket, in your car etc.
Control – Having complete ownership of the illicit product, such as the right to keep or consume it.

The Police are required to provide sufficient proof that the substances are in your control or custody and that there was knowledge of the drug and what it was, for example, the fact that an illicit product was in a house owned by yourself, does not mean that you’re guilty of the charge, if those illicit products are controlled/owned by another person.

The applicable definitions are set out in section 10 of The Drug Misuse and Trafficking Act, 1985, which is a legal document that covers all aspects of drugs and crime, including illegal substance possession, aiding and abetting, conspiring, drug supply and more.

What are my rights if arrested?

If you’re placed in this situation, it is extremely important to say the minimal amount to the authorities other than the basic details they require to identify you, but after giving out those, it is fine to politely decline to answer anything further until speaking to a professional legal source about your situation and how to proceed.

In most cases with this kind of offence, it is quite commonplace for police to give out a ‘court attendance notice’, which is a form that will inform the person charged of the necessity to answer the charge in court, including the date and location of this event. Especially in music festivals where drug charges are extremely common, officers will issue the notice and then release the charged without any further conditions.

What if I am taken to the police station?

If this situation occurs, it is not a mandatory requirement to answer further questioning if you do not want to, and it is often recommended not to, for your own sake and to avoid the risk of any further incrimination.

You only need to give them the necessary details for them to identify you, but from then on you can politely refuse further questions. It is a right to request a lawyer if so required and also a right to directly communicate over the phone with them. If you require translation for any language barriers, a translator can be provided.

Police are required to bide by certain rules as to how long they are allowed to keep you at the station, which can depend on the crime and the conduct of yourself during the time there.

If refused bail at the station, it is an option to request bail on your initial court date, which will take place as soon as possible after the offence.

This is also why it is crucial to have an experienced solicitor to consult with, as they will give a complete overview of the options available and will ensure you have a higher chance at bail.

How can they prove I was in possession of the drug?

A court is required to prove beyond all reasonable doubt, that the person charged, knew they had a prohibited substance in their custody or control. This proof can be placed by the whereabouts of the illegal product when found, so if it was in your pocket for example, it would be quite strong case against you.

It is extremely important to prepare for the court date, as not doing so will certainly put you in a bad light within the courtroom.

Seeing a lawyer before the court date is the best way to prepare, as they will help find the best option for the case, collect any necessary evidence and ensure both you and them are prepared thoroughly for the day.

What are my options in court?

It is always suggested that you speak to a qualified and experienced law firm to ensure that you are making a correct decision, they can give tailored information based on your situation and ensure you have full knowledge of the situation.

Guilty Plea – Where the person pleads guilty to the charge in court, though not ideal it can show cooperation and can result in a lighter charge than originally intended.

Not Guilty Plea – Where the person pleads guilty in court, It is crucial to only do this if actually not guilty, there must be proof that the charge mas a mistake or there were other factors that will clear the name.

What will happen if I am charged?

If found guilty for possessing illegal products, your sentence can depend on your criminal history, where the substance was located, the amount, the kind of substance and intended purpose for it.

The maximum penalty for being in the possession of drugs is up to 2 years in prison and/or a $2,200 fine. There are other multiple options that a judge can sometimes consider other than a penalty amount or a jail sentence, these options are best spoken about with a professional.

In some cases, if the person has had no criminal history, they are able to get a section 10 of the Crimes (Sentencing Procedure Act) 1999 which allows the court to find the person guilty, but not record a conviction. It is not common occurrence that a section 10 is given out, so do not base all your hope on that outcome.

The court is also required to take into account all facts and evidence accessible and should try and foresee the situation and the consequences a severe sentence can have on your future endeavors, this is where a professional can be crucial to your cause, as they can speak to the judge or panel and further illustrate the extent of your situation.

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