Law Montana Needs: If the penalty is ambiguous, the accused gets the benefit of the lesser punishment
A common criminal charge around our office (and around the state, I’m sure) is felony “possession” of “dangerous drugs.” Many such charges come from similar facts: The accused was stopped for a traffic violation or was in the wrong apartment at the wrong time or whatever, he was searched or arrested, and in his pocket was a baggie containing “residue” that tested positive for methamphetamine. These “residue” cases are infuriating because they defy logic: How can you “possess” “drugs” when you really only have, at most, residue? If I have an empty box of cereal containing nothing but the dust left behind by the cereal that once was, do I “possess” “cereal,” or do I just have something that once clearly contained cereal, aka, paraphernalia?
So I was interested to read on Concurring Opinions about a Utah case that appears to resolve this problem:
A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.”
Brilliant. Now let us all go forth and make this the law here, too. [tags]drugs, residue, Utah[/tags]