Drug residue on phonescreen- consequences?

caughtandfked

Let's hypothetically say someone was caught by the gardai with powder drug residue on the phone screen. Nothing was found on the said person, just what was on the screen. The phone was taken for analysis by the gardai officer. What will happen to the said person's phone, and what will happen to the said person? The person was cooperative and didn't cause trouble, didn't try to run. The said person might have signed a statement (While being VSIIBLY drunk *cans of alcohol were present in the person's bag*) about what happened and how the residue got on his phone. The said person told the gardai that it's the end of everything because a cryminal record means being kicked out of college and the gardai officer said "noone got kicked out of college because of a line on their phone" and then after the officer took what he needed, he left the said person to himself. He said something about the said person being called to court at a later date.


What are the posibilities? What will happen to the said person's phone? Will he get it back? Will they actually not accept him into college after that?

Peregrinus

caughtandfked wrote: »

What are the posibilities?

It largely depends on what's in the statement.

Obviously, you don't want to be posting the contents of your statement on a public internet forum. That's very wise of you. But you will be telling your lawyer all about what's in the statement, and he can form a view as to whether your admissions would support, e.g., a possession charge, or some more serious charge (such as supply). If there are damaging admissions in the statement, then your lawyer can discuss with you whether there might be grounds for challenging the admissibility of the statement on the basis of your drunken condition when you gave it (that's a long shot, but worth exploring) or on some other basis. He can also advise you as to the likely range of sentences for a first offence if you're convicted of whatever charge the statement might support.

All of this is entirely hypothetical, of course, since I've no idea what is in your statement, and I know next to nothing of the circumstances in which it was taken. And you don't want to be moving from discussing hypotheses to discussing reality here, in a public forum; you'll want to be doing that privately, in the offices of the lawyer that you're going to instruct.

caughtandfked

Lets say the statement was something like the said person was offered the substance by some unknown individual who he happened to cross on the street and in some way got involved into a conversation with. After a while the said person agreed on taking the above substance since the said person is struggling with severe depression for many and many years and didn't care whether or not the said substance might lead to the loss of life, and that's where the substance came from on the phone screen.

What are the posibilities? What will happen to the said person's phone? Will he get it back? Will they actually not accept him into college after that? Does that basically mean that the said person's life is over?

Peregrinus

What drug was involved? Hypothetically speaking?

caughtandfked

Peregrinus wrote: »

What drug was involved? Hypothetically speaking?

Not exactly sure, the said person was in contact with such substance for the first time in their life, it was some powder. The analysis will certainly show exactly what it was

Lmklad

First of all, chill. It is highly unlikely there will be a prosecution as the amount of powder left on the phone will be minimal. In fact I'm surprised the Garda even bothered taking it. At most a possible summons for Section 3 misuse of drugs act, for personal use. If this is the first offence any good solicitor should be able to have it stuck out with the assistance of a donation to poor box or such.

caughtandfked

Lmklad wrote: »

First of all, chill. It is highly unlikely there will be a prosecution as the amount of powder left on the phone will be minimal. In fact I'm surprised the Garda even bothered taking it. At most a possible summons for Section 3 misuse of drugs act, for personal use. If this is the first offence any good solicitor should be able to have it stuck out with the assistance of a donation to poor box or such.

What about the phone? How long could they possibly keep it for?

And about college, sure doesn't that mean anyway that i won't be accepted into college as they are doing the garda-vetting?

Peregrinus

OK. The powder may not have been a controlled substance at all. The said person may have been ripped off by the unknown individual who sold him any one of a number of readily available cheap white powders - e.g. bicarb. of soda.

But let's assume it turns out to be a controlled substance. Let's also assume the said person is over 18. On the facts you give, we're looking at a charge of possession, and furthermore possession of a tiny amount - a trace amount, really. If charged, and if convicted, for a first offence I don't see the said person getting a custodial sentence for this, even suspended - he's looking at a fine, Probation Act, that kind of thing.

He'll get the phone back - eventually. This won't be until after the trial, if he's charged. In the meantime he should buy a cheapie and talk to his provider about getting the number transferred.

Such a conviction will not be an obstacle to getting into college. If already in college, such a conviction will not lead to expulsion.

Such a conviction could, in theory, be an obstacle to employment, but I'd be surprised if it was a huge obstacle. By the time the said person has passed through college, it will be a few years old, and most employers are going to be understanding about a youthful indiscretion of this kind. If an employer going to rule out any candidate who ever dabbled in recreational chemistry, that could be quite a large pool of talent they are cutting themselves off from. They'll be far more interested in the nature of a candidate's training, the quality of his degree, etc, etc. The conviction might loom a little larger in occupations/professions where drug use impacts ability to do the work. In any event, seven years after conviction the "spent convictions" rules kick in, and in most circumstances the said person won't be obliged to disclose the existence of this conviction, even if directly asked.

Unless and until the spent conviction rules apply, if asked about prior convictions the said person should always disclose the conviction. Non-disclosure of something like this, and subsequent detection, is a far, far bigger career issue than having the conviction in the first place. It's always much easier to disclose this and explain it away than to justify having lied about it.

If I were the said person, I'd probably wait until I was actually charged, and then I'd go to a lawyer and get advice on how best to manage the charge to as to minimise long-term adverse consequences. But if I were the said person and I were really, really sh1tting myself now, I'd go to a lawyer straight away and get some authoritative reassurance about the range of possibilities and how each of them might be managed.

KwackerJack

Surely you cannot be charged with residue??

You were on a night out and had your phone on tables etc??

Unless you had a big lump on your screen then how can they prove it was you?

Unless you admitted it!!

Peregrinus

KwackerJack wrote: »

Surely you cannot be charged with residue??

You were on a night out and had your phone on tables etc??

Unless you had a big lump on your screen then how can they prove it was you?

Unless you admitted it!!

He had possession of the the phone, it was his phone, and the drug was on the phone. He "possessed" the drug, albeit only a tiny amount of it. Plus, it appears that he give a statement acknowledging possession (and acquisition) of the drug.

There's no minimum amount that you have to have in order to be charged with simple possession. Any detectable amount will do. In practice, it may be unlikely that they would bring charges over mere traces, but if someone is charged with possession, "it was only a tiny amount!" is not a defence.

GavMan

Peregrinus wrote: »

He had possession of the the phone, it was his phone, and the drug was on the phone. He "possessed" the drug, albeit only a tiny amount of it. Plus, it appears that he give a statement acknowledging possession (and acquisition) of the drug.

There's no minimum amount that you have to have in order to be charged with simple possession. Any detectable amount will do. In practice, it may be unlikely that they would bring charges over mere traces, but if someone is charged with possession, "it was only a tiny amount!" is not a defence.

You could say that about most of the bank notes in circulation too. Nothing will probably come of this

caughtandfked

GavMan wrote: »

You could say that about most of the bank notes in circulation too. Nothing will probably come of this

Peregrinus wrote: »

He had possession of the the phone, it was his phone, and the drug was on the phone. He "possessed" the drug, albeit only a tiny amount of it. Plus, it appears that he give a statement acknowledging possession (and acquisition) of the drug.

There's no minimum amount that you have to have in order to be charged with simple possession. Any detectable amount will do. In practice, it may be unlikely that they would bring charges over mere traces, but if someone is charged with possession, "it was only a tiny amount!" is not a defence.

KwackerJack wrote: »

Surely you cannot be charged with residue??

You were on a night out and had your phone on tables etc??

Unless you had a big lump on your screen then how can they prove it was you?

Unless you admitted it!!

The said person was hypothetically very drunk at the moment and was about to take whatever was on the phone, when the officer showed up the person wiped most of it onto the ground but some still stayed on the phone. The officer took notice of that. Unfortunately the said person, being drunk, signed the statement about what happened and admitted that was about to use whatever was on the phone, but got frightened when the gardai showed up, and wiped it off.

racso1975

caughtandfked wrote: »

I was very drunk at the moment and was about to take whatever was on the phone, when the officer showed up i wiped most of it onto the ground but some still stayed on the phone. He took notice of that. Unfortunately myself being drunk, i signed the statement about what happened and i admitted that i was about to use whatever was on the phone, but got frightened when the gardai showed up, and i wiped it off.

Hypothetically......

MysticMonk

Nothing will happen for a tiny amount of residue. Shrug your shoulders and say nothing.

KwackerJack

You'll get a warning I'd imagine

And if you were to do it "again"......don't be so stupid to have it in your phone!!

Each to their own but if your going to do something like that keep it discrete.

Fred Swanson

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MysticMonk

Fred Swanson wrote: »

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Of course...people make drunken statements all the time and the cops are quite happy to record them.

Fred Swanson

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MysticMonk

Fred Swanson wrote: »

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Of course.. Voluntary intoxication is not a defence

Fred Swanson

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MysticMonk

Fred Swanson wrote: »

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Here ya go.

Fred Swanson

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Ultimate Seduction

Someone getting paranoid over this, a bit of residue, has no businesses taking drugs.
Hypothetically.

MysticMonk

Fred Swanson wrote: »

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You trust a lawyer to tell the truth? :eek:

Mr. Incognito

Keep your mouth shut

In the unlikely event you are charged its going to be impossible to prove residue on a phone was not there as a result of accidental contamination at any pub restroom in Dublin.

sunshine and showers

MysticMonk wrote: »

You trust a lawyer to tell the truth? :eek:

The whole truth and nothing but.

Hypothetically, I would say absolutely nothing more.

If the Gardaí try to bring it further (unlikely) then you start picking apart the process on the hypothetical evening - was there an arrest? was the arrest lawful? were you questioned? were you cautioned first? were you visibily intoxicated? did the member in charge give permission for you to be questioned while visibly intoxicated? Etc, etc.

Get your solicitor to ask for your phone back.

Victor

caughtandfked wrote: »

the said person is struggling with severe depression for many and many years

Such a person would be well advised to get help. Their doctor would be a good start.

Does that basically mean that the said person's life is over?

Of course not. Half the country has a conviction for something, even if it's just a traffic matter. The vast majority are getting on with their life.

Peregrinus wrote: »

Such a conviction will not be an obstacle to getting into college. If already in college, such a conviction will not lead to expulsion.

Even something like pharmacy or medicine?

Pat Mustard

Trace amounts of drugs do not amount to possession if they are so minute that as a matter of common sense, a court finds that it could not be proved that an accused knew he had the drugs.

R v. Boyeson [1982] AC 768

MysticMonk

Pat Mustard wrote: »

Trace amounts of drugs do not amount to possession if they are so minute that as a matter of common sense, a court finds that it could not be proved that an accused knew he had the drugs.

R v. Boyeson [1982] AC 768

Even a "baggy" with a bit of coke clinging to it is unlikely to get the owner prosecuted these days,provided they don' have another full bag concealed on their person or they're a known dealer.

A few traces on a phone is NOT going to amount to posession,ask for your phone back and admit nothing!

Pat Mustard

MysticMonk wrote: »

Even a "baggy" with a bit of coke clinging to it is unlikely to get the owner prosecuted these days,provided they don' have another full bag concealed on their person or they're a known dealer.

That depends on whether the State can show that the accused knew that he had the drugs. If the State can show that the drugs were visible, an accused might be convicted.

If they are invisible, trace residues, its a different story.

MysticMonk

Pat Mustard wrote: »

That depends on whether the State can show that the accused knew that he had the drugs. If the State can show that the drugs were visible, an accused might be convicted.

If they are invisible, trace residues, its a different story.

Thats assuming the guard decides (or insists) to prosecute in the first place...and for that amount of drug most halfway decent guards will give you a slap on the wrist and probably a verbal warning.

Going to court and trying to prove posession for a trifling amount is far more trouble than it's worth and unless the guard really wants to make an example of you or you've upset him in some way he wont bother wasting the court's time.

IF you did get busted with a tiny amount your best bet is to bring 200 euro to court with you and offer to make a donation to the court poorbox...if it's your first offence that is usually enough to have you dealt with by the Probation Of Offenders Act and not to record a conviction of any sort.

Peregrinus

Fred Swanson wrote: »

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There's no rule of evidence that a statement made by someone while intoxicated is inadmissible. As already pointed out, lots of people are arrested while intoxicated, and evidence of what they said when arrested is frequently given.

The fact that the defendant was intoxicated when he made his statement might affect the weight or probative value of the statement, but not its admissibility.

Pat Mustard

MysticMonk wrote: »

Thats assuming the guard decides (or insists) to prosecute in the first place...and for that amount of drug most halfway decent guards will give you a slap on the wrist and probably a verbal warning.

Well that depends on the situation. In the situation that you are talking about, I wouldn't bank on that, at all.

The guy was talking about powder, so I assume that we are talking about coke.

Gardai are in pensionable jobs for life. They have to follow Garda procedure in order to protect their jobs and their pensions, generally. They have a responsibility to their families not to endanger their own livelihoods.

There is sometimes a chance that a Garda will let somebody off but as matters become more serious or if there is a greater chance of something coming back to haunt them later, then they'll become less likely to let someone off, especially in the current climate of Garda scrutiny.

There is talk of decriminalization (not legalization) of drugs for personal use but that has not come to fruition.

If you get caught for speeding, you might get off. If it's a country cop looking at 3 years to retirement, on a nice sunny day and he's about to go home and enjoy the last of the sunshine. If he can just reset the speed gun and there's no more evidence. And if you had a nice chat about the hurling. And if he likes hurling. And if he is in a good mood. Maybe then. Maybe.

If you get caught by a Garda with some coke in a bag, I'd say that you could expect to be prosecuted.

mel123

Lads i know the law might say what SHOULD happen, but seriously, there is no point in *****ing up the OP who is probably bricking it as it is.
A bit of residue on a phone, id be surprised if they ever hear from the gardai again. In fact, id be pretty miffed if my tax paying money was paying for stuff like this to go to court, my god. Even if hypothetically the OP was caught with a line of white substance actually on their phone, it was one line!!
Criminals like this are walking around our streets with a list of convictions and then committing murder, i would highly doubt the OP will be in any kind of trouble at all!! http://www.independent.ie/irish-news/volatile-criminal-arrested-in-connection-with-murder-of-beloved-dadofthree-released-without-charge-35941148.html

Fred Swanson

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Pat Mustard

mel123 wrote: »

Lads i know the law might say what SHOULD happen, but seriously, there is no point in *****ing up the OP who is probably bricking it as it is.
A bit of residue on a phone, id be surprised if they ever hear from the gardai again.

I think that you have the wrong end of the stick.

We already discussed residue on the phone.

MysticMonk and I moved on to discuss something else in this post.

GM228

Pat Mustard wrote: »

Trace amounts of drugs do not amount to possession if they are so minute that as a matter of common sense, a court finds that it could not be proved that an accused knew he had the drugs.

R v. Boyeson [1982] AC 768

The Boyeson case has never been approved in an Irish court Pat as far as I know (and would appear to have never even been cited either - according to the JustCite precedent map anyway).

The relevant case here is a surprisingly little known case, the Minister for Posts and Telegraphs vs Campbell [1966] I.R. 69 case where Davit. P held similar views to the Boyeson case:-

In my opinion a person cannot, in the context of a criminal case, be properly said to keep or have possession of an article unless he has control of it either personally or by someone else. He cannot be said to have actual possession of it unless he personally can exercise physical control over it; and he cannot be said to have constructive possession of it unless it is in the actual possession of some other person over whom he has control so that it would be available to him if and when he wanted it. Normally speaking, a person can properly be said to be in possession of the contents of his own dwelling-house, but only if he is aware of what it contains. He cannot properly be said to be in control or possession of something of whose existence and presence he has no knowledge.

This definition has been cited and approved in many cases such as by the CCA in DPP vs Foley [1995] 1 IR 267 or in DPP vs Gallagher [2007] 2 IR 246 which specifically dealt with drugs offences - it is widely used as the authorative meaning of possession in any criminal case.

by8auj6csd3ioq

He had possession of the the phone, it was his phone, and the drug was on the phone. He "possessed" the drug, albeit only a tiny amount of it

isn't not knowing it was there a defence against possession? hypothetically, without the statement?

Also isn't saying the said person is "struggling with severe depression for many and many years and didn't care whether or not the said substance might lead to the loss of life" and at the same time being so worried about college contradicting one self?

GM228

Callum Quiet Viewpoint wrote: »

isn't not knowing it was there a defence against possession? hypothetically, without the statement?

It's not a defence you need to raise, but rather an element the prosecution must prove.

Pat Mustard

GM228 wrote: »

The Boyeson case has never been approved in an Irish court Pat (and would appear to have never even been cited either).

The relevant case here is a surprisingly little know case, the Minister for Posts and Telegraphs vs Campbell [1966] I.R. 69 case where Davit. P held similar views to the Boyeson case:-

This definition has been approved by the CCA in DPP vs Foley [1995] 1 IR 267 and again in DPP vs Gallagher [2007] 2 IR 246 which specifically dealt with drugs offences but is used as an authorative for any criminal case involving "possession".

I have/had an old book on the law of evidence with the relevant case. I couldn't find my old book but a more recent Irish one mentioned Boyeson.

In any event, an Irish precedent is of binding authority an and UK precedent of persuasive authority.

Victor

Normally speaking, a person can properly be said to be in possession of the contents of his own dwelling-house, but only if he is aware of what it contains. He cannot properly be said to be in control or possession of something of whose existence and presence he has no knowledge.

Might this be over-stating things slightly? Can one be negligent / deliberately ignorant in having this on the premises.

For example, regular packages delivered to the home of an elderly person (compos mentis). Said person knows their son is involved in the drugs trade. Son doesn't live at premises. Elderly person leaves packages for son.

Also, on death of farmer, family hand in licenced shotgun / ammunition for safe keeping, knowing full well that farmer kept more than one shotgun.

Pat Mustard

Victor wrote: »

Might this be over-stating things slightly? Can one be negligent / deliberately ignorant in having this on the premises.

This only applies in relation to very small amounts where the defence argues that there are only trace amounts of which the State cannot prove the accused was aware.

This argument does not apply in relation to a shotgun or a bale of cocaine as neither of these things could be argued to amount to minute quantities.

GM228

Pat Mustard wrote: »

I have/had an old book on the law of evidence with the relevant case. I couldn't find my old book but a more recent Irish one mentioned Boyeson.

In any event, an Irish precedent is of binding authority an and UK precedent of persuasive authority.

Indeed, and the main point is both Boyeson and Campbell came to the same conclusion.

GM228

Pat Mustard wrote: »

This only applies in relation to very small amounts where the defence argues that there are only trace amounts of which the State cannot prove the accused was aware.

This argument does not apply in relation to a shotgun or a bale of cocaine as neither of these things could be argued to amount to minute quantities.

Well the state could not prove Campbell had possession of a TV as they could not prove he had knowledge of the TV despite it being present in his own house, and more recently in 2012 the CCA in DPP vs Devlin [2012] IECCA 70 set aside Samuel Devlins SCC conviction for possession of explosive substances despite him having a pipe bomb in his car as the state could not prove he had knowledge of it being there - so the defence does work for other than what would be considered minute.

Pat Mustard

There is a specific argument to be made in law about small quantities which is what I was talking about so it appears that I have misunderstood this further argument.

Peregrinus

Callum Quiet Viewpoint wrote: »

isn't not knowing it was there a defence against possession? hypothetically, without the statement?

Well, the very first point I raised in this thread was that the contents of the statement were vital.

As GM228 has already said, knowledge of the presence of the subtance is something the prosecution would have to prove. But the contents of the statement (and the circumstances of the arrest which the OP describes later in the thread) suggest that they may be able to prove it.

If all you have is a (lawful) search yielding a phone with traces of cocaine on the screen, it's a reasonable inference that someone has used the phone as a surface on which to set out and take a line of cocaine, and that person possessed the cocaine. But you don't, with that alone, have any evidence that it was the owner of the phone who did this, or that the owner of the phone knew about it or knew about the residue on his phone, so that wouldn't sustain a "possession" charge against the owner of the phone.

iAteYourSpud

Peregrinus wrote: »

Well, the very first point I raised in this thread was that the contents of the statement were vital.

As GM228 has already said, knowledge of the presence of the subtance is something the prosecution would have to prove. But the contents of the statement (and the circumstances of the arrest which the OP describes later in the thread) suggest that they may be able to prove it.

If all you have is a (lawful) search yielding a phone with traces of cocaine on the screen, it's a reasonable inference that someone has used the phone as a surface on which to set out and take a line of cocaine, and that person possessed the cocaine. But you don't, with that alone, have any evidence that it was the owner of the phone who did this, or that the owner of the phone knew about it or knew about the residue on his phone, so that wouldn't sustain a "possession" charge against the owner of the phone.

And what about the phone? Are they able and allowed to unlock a phone which has a pattern password?

Victor

iAteYourSpud wrote: »

And what about the phone? Are they able and allowed to unlock a phone which has a pattern password?

Depending on circumstance, they are even allowed make you unlock it.

iAteYourSpud

Just out of curiosity so, lets say the OP was found guilty of possession of one line of whatever drug that was and the whole thing would end in a caution/warning/whatever they call it, after the OP would make a donation to the poor box. Let's say this was how the situation would play out. How long would this go for, and how and when could he hope to get his phone back?

Victor

iAteYourSpud wrote: »

Just out of curiosity so, lets say the OP was found guilty of possession of one line of whatever drug that was and the whole thing would end in a caution/warning/whatever they call it, after the OP would make a donation to the poor box. Let's say this was how the situation would play out. How long would this go for, and how and when could he hope to get his phone back?

It may depend on whether substance and phone can be separated.

With a guilty plea, the case should be over within a week in Dublin or a few weeks in a rural area - whenever court can be arranged. I imagine once the appeal period (30 days?) is over, an owner can then start reclaim procedure.

With a guilty plea, the sample would need to be analysed, which could take a few weeks. There could be a few court hearings. The case should be over within a 2-3 weeks of the analysis being received in Dublin or a few weeks more in a rural area - whenever court can be arranged. I imagine once the appeal period (30 days?) is over, an owner can then start reclaim procedure.

iAteYourSpud

And how long would the OP have to wait until he'll be called to court?