Possession Within a Car or Motor Vehicle

Another frequent issue which arises in Mr. McMillian's practice as a criminal defense attorney is the possession of an illegal drug or a weapon (including, without limitation a knife or handgun) within a car or motor vehicle.

Most of his clients are unaware that, under New York State Law, when the police, or state troopers, effect a lawful arrest of a driver (for, for example, drunk driving) they may, under certain circumstances, lawfully search the vehicle and, in some cases, its passengers.

New York State Law has what's known as a "Presumption of Possession" for drugs or weapons within a motor vehicle.

This means that when police find an illegal substance in a car - every single person in that car can be arrested, charged, brought to trial and/or convicted based upon the recovery of the illegal drug or weapon within the car.

This law was enacted to relieve prosecutors of the difficult burden of proving who possessed the handgun or cocaine, etc., within the car (i.e. the "not me" defense). In reality though, Mr. McMillan has had clients who were innocent passengers in a car when someone else (to whom they were barely acquainted) was later arrested and charged, for example, of possession of large quantities of drugs like cocaine or ecstasy or possession a weapon - like a knife or a loaded gun.

Mr. McMillan has encountered these cases in the past and successfully defended them.

Should you find yourself in this situation you will need to go on the offensive. With proper persuading - the prosecutor may consider other evidence - like the actual owner's close proximity to the gun or drugs within the vehicle, like the true owner's criminal history or "Rap Sheet" and your lack thereof, or your lack of familiarity with the other occupants of the vehicle.

Should you find yourself in this position in the future - make sure to speak with an experienced attorney - like Mr. McMillan.