When the Drug Named in the Charging Document Fails to Match the Drug Analysis

In any Maryland drug possession case (possession, possession with intent to distribute, etc.) one of the obvious key elements is that the substance is in fact an illegal drug. In the charging document for the crime the arresting officer will state which specific drug the substance is alleged to be. The officer will usually field test the substance, but the true nature of the substance may not be made clear until there is a chemical analysis conducted on the substance by a certified chemist.

What if the drug report states a different, but illegal, drug than the charging document? What happens then? The defendant still had an illegal drug, even though it wasn’t the one that it was initially thought to be. Can the defendant still be convicted in this situation? For instance, the charging document alleged that the defendant possessed cocaine. But the chemical analysis reveals that the drug is actually heroin. Both are illegal to possess in Maryland.

The answer is no. The defendant has a defense for possessing cocaine–which is what the charging document accused the defendant of possessing–because it must be proven that the substance is in fact cocaine. Doesn’t matter that the defendant was actually possessing a different drug, that the criminal law section is the same, and that the penalties are the same.

Cocaine and heroin may be easy to distinguish for a trained and experienced police officer, but what about pills? There are a host of potential defenses where someone is charged with possessing ecstacy (MDMA). Whenever an officer spots pills like these he usually writes them up in the charging document as MDMA. However, a lot of times the chemical composition may be different, and they may be something other than MDMA. This leaves open the defense at trial that the State has failed to prove that the defendant actually possessed the drug charged, just like in the cocaine/heroin example. If you are facing a possession of any kind of drug charge, contact attorney Chris Peretti at 301-875-3472 for a free consultation.

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