Significant Commercial Drug Offense Opinion
by: Ryan Scott • September 9, 2016 • no comments
We don't get very many opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.
Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.
The Court held that phone records of drug deals -- i.e., texts offering to buy or sell -- are not the "drug records" the legislature had in mind when it wrote that aggravating factor into the law 25 years ago.
The opinion was written by Judge Duncan, which usually means two things: it is a thoughtful and thorough opinion, and an awfully long time lapsed between argument and opinion. But it's hard to complain about the latter when you get an opinion that can be described as the former.
Here's a key paragraph:
- The legislature’s use of the term “commercial drug offense” indicates what types of offenses those more serious offenses are. “Commercial” is defined as “of, in, or relating to commerce,” and the applicable definition of “commerce” is “the exchange or buying and selling of commodities esp[ecially] on a large scale and involving transportation from place to place—compare TRADE, TRAFFIC.” Webster’s at 456. Because the listed factors, including the possession of drug transaction records, were intended to help identify commercial drug offenses, it is likely that the legislature intended the “records” to be of the type that would indicate involvement in “commerce”—that is, records maintained in furtherance of “the exchange or buying and selling” of drugs, especially on a large scale. Id.
I think this paragraph points the way to other challenges. for example, what if you prove that the $310 in your client's pocket is from non-drug-related activity? Given the purpose of drug offense factors, shouldn't there be a requirement that there is some commercial drug dealing explanation for the money? Or is it enough that defendant is poor, has no checking account, pays his rent in cash, in order for him to fact prison when anyone with a checking account would get probation?
Instead of just sentencing mitigation, maybe this is a jury instruction/mjoa argument.
Speaking of which, an expensive dinner is on me, if you can solidly preserve and send up for an appeal the argument that the consideration in the factor of "for consideration" only refers to actual consideration and not hypothetical consideration.
