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RobertJDFL
RobertJDFL, Lawyer
Category: Criminal Law
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Experience:  Experienced in multiple areas of the law.
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My daughter was arrested and charged with "simple possession"

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My daughter was arrested and charged with "simple possession" in Myrtle Beech, SC. She was staying in a resort hotel room when someone knocked loudly on the door, saying they were the police and demanded entry. The said someone reported the smell of pot coming from the room. They conducted a search and found 2 or 3 pre-rolled joints. Yes, they were hers and she admitted. She spent the night in jail and paid a bail (10% of $680) and given a court date. She lives 200 miles away in NC. After doing some reading, it appears that this is a misdemeanor and punishable by 30 days jail & not more that $200 fine. True? While she admitted that the joints were hers, the police did not have a search warrant, nor was she read her Miranda rights. Is she better off pleading guilty and paying the fine? She is in her 30's, professionally employed and this was an isolated incident .. no prior history. Ideally, we would like to keep this off her record, perhaps through a conditional discharge? With all of the laws changing on marijuana use, we are not sure how serious this is. Next steps?
Submitted: 12 months ago.
Category: Criminal Law
Expert:  RobertJDFL replied 12 months ago.
Thank you for your question.

Regardless of the debate going on in the country as to the legalization of marijuana, at this time it is still illegal, including in South Carolina. You are correct that a simple possession is punishable by a maximum of up to 30 days in jail (not likely) or a fine up to $200. For a first offense, these are most commonly taken care of with a conditional discharge, as you alluded to.

With the conditional discharge, a defendant will be required to plead guilty. That guilty plea will not be entered into the record unless the defendant fails to fulfill the requirements of the probation. Once a defendant completes the terms of the probation (conditional discharge) they will be discharged and the charges dismissed. This will allow your daughter to later expunge these charges from their record. The court normally also orders that a person complete about 30 hours of community service as part of the sentence, though since conditional discharge is technically probation, they are also under whatever other conditions the court may impose (e.g., subject to random drug testing, or they can be ordered to enter into outpatient treatment, for example).

With respect to a warrant, it's not necessary in this case because your daughter granted them permission to enter the room. Even if she didn't though they likely would have had probable cause to do so given the smell of marijuana coming from the room. A person is not required to be read their Miranda rights unless they are taken into custody and the police intend to question them. If they are merely arrested and never questioned, Miranda is not required (though television and movies would have most people believe otherwise).

Generally, speaking it doesn't hurt to speak to a criminal defense lawyer prior to her court date just to review the matter. Many lawyers offer free or low cost consultations. There can be situations that arise where officers did not act properly and then there may be grounds for discharge, or situations where due to extenuating circumstances, a court may not offer a conditional discharge.

If however, after speaking to a lawyer your daughter feels like "they have her" so to speak, she could simply plead guilty herself and a judge would typically grant the conditional discharge at that time.
Customer: replied 12 months ago.

Thank you Robert. It is likely that she will plead guilty. Does she simply ask the judge for a condition sentence, and plead for leniency on the conditions given that she is out-of-state, professionally employed, etc.? What kinds of things might help in front of the judge, assuming no representation?


 

Expert:  RobertJDFL replied 12 months ago.
Thank you for your reply. Sorry I didn't respond sooner -for some reason I didn't get notification of your reply.

My experience is that most judges don't want to know a person's life story -they're simply too busy. I've been in court where judges have actually announced things like "If this is your first offense, and you plead guilty, I will give you pre-trial intervention/conditional discharge." But a judge is going to already have reviewed the file, know that it's a minor charge and is going to be able to tell that she has no record, so they're likely looking to dispose of the case easily anyway.

She could simply say something like she takes full responsibility for her actions, it was a poor choice, but she doesn't want this to remain on her record forever and therefore would respectfully XXXXX XXXXX conditional discharge.

She may also want to show up to court a little early and see if she could talk to the prosecutor before court and see if they have any objection to her requesting a conditional discharge (they shouldn't).
RobertJDFL, Lawyer
Category: Criminal Law
Satisfied Customers: 10266
Experience: Experienced in multiple areas of the law.
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