Saratoga Performing Arts Center (SPAC) is a great concert venue. It is also the scene of lots of drug arrests in the summer. There are the usual garden variety marijuana busts in which a cop walks past a kid smoking a joint which may not lead to a search and seizure or other legal problem, but can contribute to the good many highly questionable arrests. These arrests are especially problematic when it comes to inflating the level of the crime charged.

In New York’s Penal Law, the severity of drug offenses is usually determined by the quantity of the drug. Weight is critical. Yes, size matters. It can mean the difference between a low level misdemeanor or petty offense and a high level felony.

In Case 1 my client was arrested while in possession of an hallucinogen…”blotter acid”. It was on the corner of an index card. The arresting department charged the Day Tripper with a class A felony punishable by between 6 and 14 years in state prison. For just one dose. They had weighed the substance AND the heavy stock card it was on. The actual weight just the substance put the crime at the misdemeanor level punishable by a maximum of 1 year in county jail. Because of this massive discrepancy, my client’s clean record, and a viable search and seizure issue, the case was resolved with a plea to a non-criminal Disorderly Conduct charge. The file was sealed.

In Case 2 what should have been charged as a non-criminal UPM (Unlawful Possession of Marijuana) was charged as a criminal possession misdemeanor because the pot was weighed in it’s packaging. The charge was adjourned in contemplation of dismissal (ACOD) due in part to this error.

This practice of weighing the container has been in place for years at SPAC. It is an error as a matter of law. The drug statutes often call for “pure weight” to be the controlling factor in the determining the severity of the charge. It is important to have a lawyer who understands this point of law and can use it to defuse what otherwise could be a large explosive of a criminal charge.

The moral of the story is not to carry your weed in the lightest possible container. It is this: Know that weight is critical in determining the level of charge. Don’t panic if the arresting officers don’t understand this point. Maybe they are trying to look good by making a more serious bust, or maybe they haven’t been trained in this area. Know the law will require a reduction of a charge improperly inflated by the container being weighted. Remain silent, and invoke your right to counsel in clear terms.

Enjoy the concerts at SPAC. Be safe. Don’t bring drugs to this public venue for a variety of reasons, including the chance of being charged for a far more serious offense than warranted.

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