If you have just been arrested or charged with drug possession, it is normal to feel overwhelmed and stressed. The outcome of your case will depend on key factors such as the type and quantity of the drug involved, your prior criminal history, and how police choose to proceed. Some matters result in diversion programs and others result in more serious penalties. This article outlines your legal rights when dealing with police, what to expect in the legal process, possible court outcomes, and why early legal advice can make a significant different to your case.

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What Happens Immediately After Arrest

Police Powers and Search Procedures

Police can search you, your vehicle, or your home if they have reasonable suspicion that you are in possession of illegal drugs. This means they must have specific and objective reasons; not just a vague hunch, to justify the search. For example, they might rely on your behaviour, a smell, visible items, or information from an informant. In some cases, police may need a warrant to search your home. If a search is carried out without legal grounds or a valid warrant, it may be unlawful, and any evidence found could potentially be excluded.

Your Rights During Arrest

If you are arrested for drug possession, you have the right to remain silent. You do not have to answer police questions (except for providing your name and address), and it is often safer not to say anything under you have spoken to a lawyer. You also have the right to contract a lawyer as soon as reasonably possible. Politely inform police that your wish to remain silent and want legal advice. Remember, anything you say can be recorded and used as evidence in court.

Caution Notices vs Formal Charges

Not all people caught with drugs are formally charged. In NSW, police may issue a Cannabis Caution if you are found with a small amount of cannabis for a personal use and have no prior drug convictions. In some cases, on-the-spot fines may be issued for low-level offences involving small quantities of other drugs. However, if the amount is significant, or if you have a criminal history, police are more likely to issue a Court Attendance Notice requiring you to appear in court. The decision depends on the type and quantity of the drug, your record, and police discretion.

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After the Charges Are Laid

Bail and Police Decision-Making

After charges are laid, police must decide whether to grant you bail or keep you in custody for a court bail hearing. Bail may be refused if you are considered a risk to the community or unlikely to appear in court. If granted police bail, you will be released with conditions; these may include reporting to police, not contacting certain people, or staying at one address. For repeat offenders or if drug supply is suspected, bail conditions are often stricter, and police may oppose release altogether. If refused, you will be brought before a court as soon as possible for a bail application.

Court Attendance Notice and Your First Mention

If you are charged, you will receive a Court Attendance Notice (CAN) telling you when and where to attend court. Your first mention is the initial court appearance where the charge if formally read out you will not be expected to plead guilty or not guilty unless you are ready. Most people choose to adjourn the matter to seek legal advice, gather evidence, or apply for Legal Aid. The Magistrate may ask if you have spoken to a lawyer or need more time. It is important to attend court on time and dress respectfully.

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Legal Consequences of a Drug Possession Charge

When Possession Becomes Supply

In NSW, you can be charged with supply even if you had no intention of selling drugs. Under deemed supply law, you are caught with more than a trafficable quantity; which varies by the drug type, the law presumed you intended to supply it. For example, just 0.75 grams MDMA or 3 grams of cocaine can trigger this presumption. You can try to rebut this in court but it often requires strong evidence. Being charged with supply carries far more serious penalties than simple possession, so it is essential to get legal advice.

Possible Penalties if Convicted

Penalties for drug possession vary depending on the type and amount of drug, your criminal history, and the circumstances of the offence. For minor cases, courts may impose a fine or a conditional release order (CRO), which is a non-conviction order with good behaviour conditions. More serious or repeat offences may result in a community correction order (CCO), involving supervision, community service, or curfews. In cases involving large quantities, multiple charges, or prior conviction, imprisonment is a real possibility. The Court will consider whether the offence was for personal use or linked to supply when determining an appropriate sentence.

Even small amounts can lead to criminal records. Speak to a lawyer early to explore defences or avoid a conviction.

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Legal Options and Defence Strategies

Common Defences to Drug Possession

Several legal defences may be available if you are charged with drug possession, this includes:

• Lack of knowledge: If you genuinely did not know the drugs were in your possession, the charge may not stand.
• An illegal search: If police conducted the search without a warrant or reasonable suspicion, the evidence may be inadmissible.
• The substance was for medical use: You may have a valid defence if the substance was legally prescribed, this could also be used as a mitigating factor on sentence.
• If the drugs belonged to someone else: If the drugs belonged to someone else and you had no control over or knowledge of them, this could also be raised.

Can the Charges Be Dropped?

Yes, drug possession can sometimes be withdrawn before going hearing. This may occur if the evidence is weak, the drugs cannot be properly identified, or police made an error; such as conducting an unlawful search. In other cases, you may be eligible for a diversion program such as the MERIT program, which can lead to charges being dropped upon successful completion. Ultimately, whether charges are withdrawn depends on police discretion, the strength of your case, and the quality of your legal representation.

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