Can you get a summons if you haven't been arrested

Conar

Hi All.
I hope this is the right place for this question.....apologies if not.

A friend of mine (definitely not me, and not something I condone) was enjoying the summer weather with a few cans on a green and he also had a few spliffs. Basically the cops came along and caught him red handed with the hash.
They took it from him and told him that he had a few days to come back to them with the name of the guy he got it off, otherwise he would get a summons.
Can they do this?
Should they not have arrested him if they intend to summons him?
The poor guy is normally a good lad and has no previous run ins with the law and is now a nervous wreck.

I told him that I thought he would have to be arrested if they were going to issue a summons but obviously I don't know much about it so I was hoping someone here could help.

Any ideas?

dermot_sheehan

They can certainly summons him without arresting him, the vast majority of road traffic summonses are issued without an arrest

Conar

OK, I was barking up the wrong tree then.
I just thought that they would have to have gone through some kind of procedure if they were going to hit him with possession charges.
Is this something they often do?
Are they likely to follow through?

numorouno

in that case its a class b/c? drug so theyd have no power of arrest for the offence although if he refused they would for the search alone. then they would have to send off the drugs to dublin to be tested and then summons him after that assuming it is hash or some kind of illegal drug. 6 months to instigate proceedings on a summary matter so you could be talking about 6/7/8 months before you might hear anything

Conar

Really, that long?
Wow he'll have a lot of sleepless nights ahead of him.

Thanks for the advise/info....others aggree with this yeah?

dermot_sheehan

Conar wrote:

Really, that long?
Wow he'll have a lot of sleepless nights ahead of him.

Thanks for the advise/info....others aggree with this yeah?

The max penalty for first time possession of cannabis is a fine, around about €250 I think? Small fry, which is why I think the guards are looking for the dealer.

Conar

Does that depend on how much he had?
He had quite a large amount imo (about 50 euro's worth) so would that change things?

KdjaCL

Conar wrote:

Does that depend on how much he had?
He had quite a large amount imo (about 50 euro's worth) so would that change things?

If it was say a half ounce in 2 pieces they could do him for possesion with intent to sell. Which is what they may do if he doesnt snitch, if it was one lump he could get away with personal use and a fine.


Anything over 20 worth they could do him for intent to sell, or whatever they call it nowadays.

kdjac

Conar

Could they hit him with intent to sell even if he wasn't going to?
I assume that carries a larger fine/penalty...any ideas on that?

numorouno

not likely unless it was a signifcant amount and this would depend on the drug in question. if its hash i wouldnt imagine so unless he had over €70 or so worth of the stuff

focusing

The failure to make an arrest makes it unlikely he'll face anything more than simple possession, which as suggested above can only lead to a fine for a 1st or 2nd conviction.

Nothing to worry about really, unless you need a clean criminal record, in which case you shouldn't use drugs in the first place. Get a Judge in a good mood and he might not record a conviction if the accused is a suitably good chap.

Conar

Yeah it was hash, and it was a bit less than a half ounce afik but I'd have to double check that!

Conar

Yeah he's a decent guy and quite presentable. No risk the judge would ever confuse him with a scumbag!
He needs a clean record for an Australian visa though so hopefully the judge is in a good mood.....if it comes to that.

focusing

The answer to this question:

Conar wrote:

Could they hit him with intent to sell even if he wasn't going to?

is Yes and No.

The court looks at the quantity of drugs and the other circumstances and if it thinks it's reasonable to assume that the drug was not intended for immediate personal use, he is presumed, until the court is satisfied to the contrary, to have been in possession of the controlled drug for the purpose of selling or supplying it, and is therefore in big trouble.

focusing

If he won't pay for a lawyer and really needs to avoid conviction, best advice is to either plead not guilty and hope they haven't brought the forensic witness or can't prove it was him rather than another giving his name and address, or plead guilty and ask very nicely for the benefit of the probation act, explaining that a conviction would prevent him getting a visa (making clear a willingness to make a donation to a worthy charity, despite being of limited means).

Above all, don't get in any trouble again before the hearing.

Let us know how he gets on! If it does go to trial I'm sure a few of us would cast our eyes over the facts in more detail and play "spot the procedural fault leading to acquittal"!

Chakar

Conar wrote:

with a few cans on a green and he also had a few spliffs. Basically the cops came along and caught him red handed with the hash

Well the Garda and Gardas in question would report that he was consuming cans of alcohol and was smoking it with the cans.Then the court would take that circumstance on board along with the situation in question aka being on a green.

But there's a very slim chance that the offence of possession could not go on the criminal record.

But OP if your friend turns up in a nice suit for the court date that could be a definite plus anyway along with his previous good record and behavior.

dermot_sheehan

s. 15 of the Misuse of Drugs Act 1977
http://www.irishstatutebook.ie/ZZA12Y1977S15.html

If a court having regard to the quantity and other circumstances it is reasonable to assume, then it shall be presumed that the possession was with an intent to supply.

Eru

Simple posession, section 3, Misuse of Drugs Act 1977/1984.

Just give them the dealer then he doesnt have to go to court, isnt that the easiest option???

As for summons, not arresting people is the basis for a summons, if you were being arrested then they would charge you and give you bail.

As for court, you dont need the forensic witness for court, in fact the forensic expert is never in court. They issue a certificate which is produced as evidence similar to that for a drunk driver and before you ask, yep its allowed for in the various acts.

focusing

Generally it's accepted by the defence that there was X amount of Y drug, and they plead guilty, or if pleading not guilty that either they had no knowledge of the drugs or that they were for personal consumption (to get the charge moved from supply to possession), so the cert is all you need.

That's not to say you can't force the Garda to prove the chain of evidence from a legal search to secure storage to delivery to lab to receipt to storage to test to storage with the necessary hassle for them that causes. You could even insist on an independent test. So you can drag in the forensic person if you feel like it.

Just because it's admissable hearsay doesn't mean you can't put the Gardai on strict proof, so it's not fair to say it never happens.

The whole system relies on 90% of people pleading guilty. If you challenge the legality of the search and the chain of evidence to the lab you stand:

(a) a good chance of getting off either in the District Court or on appeal; and
(b) a good chance of getting a heavier fine if you're convicted for wasting the court's time by not just pleading guilty.

focusing

Here's a statistic for you:

In 2004, of 312,000 summary offences there were 10,000 prison terms, 85,000 fines, 1,000 Community Service Orders and 215,000 outcomes of probation, peace bond, strike out, adjourn generally, taken into consideration and dismiss!!

Eru

Eh no, the cert states the chain in it. It states who seized the drug and labeled it, who handed it in, who signed it into the lab, who tested it and who returned it too the arresting officer.

We sign dockets to keep the chain alive and well and thats also entered into evidence if need be. like I said, the cert is the same as the forensic cert in a drunk driver.

If there was a gap in the evidence chain on the cert, yeah then you could challenge but no judge is going to allow you drag every single person into court when a lawfull cert has been entered and besides that, if you wish to challenge an aspect of a case not involving witnesses and direct Gardai you must declare this in writing prior to the trial. The custody record being the prime example.

focusing

There's a difference between how it is usually done and how it can be done if you want to put the Gardai on strict proof.

The Gardai aren't generally forced to jump through all the hoops because 90% of people plead guilty and in many of the remaining cases the defence don't dispute the relevant piece of evidence, building their defence elsewhere (illegal search or personal consumption or no knowledge they were in possession of drugs).

If you want to dispute the quanity of drugs or whether the substance was actually a particular drug you can drag in everyone along the chain and if there are any missing links the defendant gets off.

While you increase the chance of acquittal you are likely to annoy the judge, so it's a dangerous game.

Victor

Remember, drinking alcohol in a public place is also a no-no.

Conar

Thanks for all the advice folks.
I'll let you know what happens, but from what you are saying it may be months before we know.
Does anyone know if Australian visa's are definitely a problem if he gets a conviction on this?

Chakar

Victor wrote:

Remember, drinking alcohol in a public place is also a no-no.

Yeah have to remember that.Public drinking is illegal.

Cochise

a friend of mine was involved in something similar to this, he was caught with a little more wacky tobacky than your friend but he wasnt drinking at the time so there roughly the same, anywho he thought the they had forgot about it so he was delighted and then about 6 months later a summons came through the letterbox for court.
So next day he went and bought a suit, shaved and generally cleaned himself up and went to see the garda that issued the summons, he explained to the garda that he was going to the us in the summer and if he was done on the drug charge he couldn't get in to the US. So after much pleading the garda said he'd think about it and get back to him.
The day for court came and my buddy had heard nothing from the garda so he, dressed nicely (suit, etc) and went to court, his case came up and the garda was sitting in the box on the judge's left as they usally do and just told the judge he'd like the case struck. Judge looked at my buddy and didnt question the garda and struck the case outright.
So there may be hope for your friend tell him dress well and go and ring the garda that issued the summons station and ask to speak to him, briefly tell him what its about and ask can you come down to talk to him. I'd say tell your friend to wait until/if a summons comes to do this. if no summons comes he's laughing as a summons must be issued within 6 months of the offense

hullaballoo

For fcuk sake people.

Read the Fcuking Charter and Stickies!

Locked.