While summer in the southern hemisphere hasn't fully arrived yet, festival season has, and with it comes good times, pals, sunburn, and the insidious fear of getting busted with a baggie and having to call your parents. The reality is some of us will mess up and get caught. But a little bit of information about your rights can make a big difference over whether you pay a manageable fine or pick up a criminal record which can limit things like travel and employment opportunities later on.
VICE spoke to the Fitzroy Legal Service centre to get some advice about what to do if you are arrested with drugs, and hopefully help you avoid the ultimate comedown.
This article originally appeared on VICE Australia.
Know Your Jurisdiction:
If you decide to risk taking drugs into a festival, it's a good idea to familiarize yourself with the local laws. Charges for possessing different amounts vary from state to state.
For example in New South Wales a small amount of weed is considered to be less than 15 grams. In Victoria, it's 50 grams. This is important because carrying a small amount, and having no prior convictions, means you have a good chance of getting off with just a caution and not being charged for possession.
Your Right to Silence:
By law, you really do have the right to remain silent. If arrested, all you have to tell the police is your name and your address. After this you can say "no comment" to any further questions.
As soon as you're busted, your priority is minimizing damage. By not talking you can't dig yourself further into trouble. There are a lot of things you can say that will make matters worse for your sentencing. For example, admitting you drove to the festival gives them more reasons to prove you were planning on driving on drugs later.
Seek Legal Advice:
You know, beyond this article. Any community legal service will go through the evidence and the report with you free of charge. They'll explain what your next move should be, what to plead, and whether you should get a private lawyer. They can also explain the charges and penalties you are facing and the likelihood of getting off.
If you've never been busted before, you have a good chance of getting off lightly. It doesn't matter if it's weed or heroin, it's unusual for a first-time offender to receive a criminal record. Of course this is isn't a guarantee—if avoiding a drug conviction is important to you, it's probably advisable to keep it clean. And of course, if you have messed up and received a warning, take that warning seriously and never, ever, mess up again.
When you get to caught, there are three ways you can proceed:
A. Admit to the charges and ask for diversion. This is a way to deal with your charge out of court—giving you a good chance of avoiding a criminal record. To qualify for this it must be your first offense, and you need to take responsibility for your actions. In place of jail time or a record, you may need to do a program like Cautious With Cannabis, perform community service, or make a donation to a charity.
B. Plead guilty. While this sounds risky, it can demonstrate to a magistrate that you're cooperating and may result in a less severe penalty.
However, specialist criminal firm LY Lawyers warned VICE that it's common for the cops to advise you to fill out the "notice of pleading" form that they then send to court with a written explanation. Don't do that, as the lack of context through an explanation can increase your chance of getting a criminal conviction.
C. Plead not guilty. Only do this if you are actually not guilty, and have evidence to form a defense. Pleading ignorance won't work, you will need to prove they weren't your drugs and you were mistakenly arrested.
What to Say in Court:
The first thing to remember is that magistrates are used to hearing bullshit excuses. Rather than trying to weasel out of this like they're your parents, focus on presenting a clear and consistent narrative of what happened.
If this is your first offense, make sure that is the focus. Also, demonstrate that you have learned your lesson and are committed to never fucking up like this again.
Adrian Snodgrass from the Fitzroy Legal Service Centre reiterates that it's best to accept responsibility and acknowledge you broke the law. He adds that it's important to "explain how a penalty or criminal record will be a detriment to your future, whether you plan to work in a bar that requires an RSA, acquire a taxi or security license, teach at a school, get into hospitality, or even retail."
If you've followed the above advice of taking responsibility, showing remorse, and being open to participation in a drug awareness program, he recommends requesting a conviction without penalty. This is a notation on your record, rather than an actual criminal record which lasts 10 years.
But keep in mind that all of this evaporates if it's not your first offense, so make sure you learn your lesson or get ready for a much tougher time.
If the diversion and record notation don't work out, you may still face jail time. Two years jail is the maximum sentence for possession. But again, possession looks very different in different parts of Australia. If you possess an amount larger than what your state considers reasonable for a one individual looking for a good time, you could be charged with low-level trafficking. In this case, you're looking at two to 14 years in jail.
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