Hello, this is Michael Lombardi Esq. What I’m about to share with you in this report is information designed to help you learn more about how a defendant can get bail on drug charges. If you have questions after reading this report or are interested in meeting with one of our lawyers, please feel free to call us at 401-600-0000
Before we jump in, I want you to know that you’ve made a smart choice in reading this report. Most people don’t take the time to learn about their legal problems, and it costs them in the long run. Congratulations on choosing to make informed decisions.
What I’m going to do is talk with you about Three (3) frequently asked questions that we get from people who contact us, and them I’m going to share with you the questions that you didn’t even know you should be asking and answer those as well. By the end of this, you will have learned information that could save you a great deal of hassle and even money in your legal case.
Let’s dive in with the number one (1) question we get at our firm:
Question 1: Why did the judge hold my family member or loved one without bail for two weeks when they were in court for the first time?
In Rhode Island, unlike many other states, the judge has the power and authority to deny bail to a defendant charged with dealing drugs or possessing large amounts of drugs, including; (1) dealing and/or delivering any type of illegal drug, even small quantities; (2) Possession of illegal drugs with the intent to sell; (3) Possession of a large quantity of drugs typically over 1 ounce: and (4) Manufacturing of drugs.
Manufacturing of drugs means that a person is making his own pills or cultivating or growing marijuana without the proper license or exceeding the growing amount permitted by law. A typical defendant charged with one of these drug offenses will be arrested by the police and his home or residence will likely be the target of a search warrant raid. Contrary to popular belief, when the police raid and search your residence they do not have to wave a search warrant in front of your face or hand you a copy of it before they enter. In fact, the police usually wait for a defendant to leave the residence before they search it simply to prevent a defendant from hiding or flushing drugs down the toilet.
Once seized and arrested, the defendant will be taken into custody and held overnight at either the local police station or the Adult Correctional Institution (ACI). The next morning, he or she will face a judge in a division of the Rhode Island District Courts. If the person arrested is unlucky enough to be arrested on a Friday evening, he will spend the weekend in prison waiting to see the judge on the following Monday morning.
The first time a defendant faces the judge is referred to as a felony initial appearance or arraignment; it’s not to be confused with a bail hearing date. Family and friends will attend this court date and automatically assume and even expect that the defendant will be released on bail immediately after this first appearance.
Surprisingly, the judge may not give bail on this first date for a couple of reasons. To start, the laws of Rhode Island allow a judge to automatically hold a defendant charged with drug dealing for two weeks when the state and police request that he or she be held without bail. If someone is charged with a drug offense, they are presumed to be a danger to the community. Yes, that is the reality of our laws- even though you are presumed innocent until proven guilty, the Rhode Island State Constitution says you can be held for a bail hearing.
To make matters even more unfair, the Judge can and will often schedule that bail hearing two weeks from the date you were first in court. This gives police, narcotics detectives and police two weeks to prepare their case against a defendant. Our experience in handling and representing many defendants charged with drug dealing has taught us that this automatic two-week hold must be avoided if possible. We’re well-schooled in the many ways that this two-week hold can be avoided. No matter the circumstances surrounding one’s arrest, no matter what you’ve been told, and no matter what you may think, you should consult with an attorney as soon as possible. The quicker an attorney can start considering your case, the better able he’ll be to help protect your rights.
Question #2: What happens when the judge has ordered a Defendant held without bail pending the outcome of a bail hearing?
At this juncture, the judge has set a date for a bail hearing. This date will be scheduled ten business days after the defendant’s first appearance before the court. In the short term, the defendant and his family may be suffering already from the devastating impact that the criminal justice system can wreak on their lives. They’re looking desperately for answers because an arrest can cause a lot of financial, emotional and social stress.
The defendant charged will be sent to the Rhode Island Adult Correctional Institution (ACI Intake Center), located in Cranston, Rhode Island and will remain there until his previously scheduled bail hearing. It still may be a mystery to the defendant why he’s even held in the first place. You may be experiencing the following thoughts; (1) I have no criminal record- How could the judge possibly hold me without bail? (2) It was only a small amount of drugs that I delivered. Why is the judge still holding me without bail? (3) It was only a small amount of drugs that I possessed. How can I still be held without bail by the judge? Or (4) I have a medical marijuana card, so why am I being held without bail? All good questions.
The simple legal truth is that the judge has the power and authority to hold a defendant in prison for ten days. The answer is that under Rhode Island Law a defendant is not entitled to be released on bail for drug dealing offenses when the local police and prosecutor ask for a hold the first day in court and the sitting judge agrees. In the meantime, the prosecutor assigned to a case will prepare his case for your upcoming bail hearing. The prosecutors, narcotics detectives and their experts will have two weeks to thoroughly organize and present the case against a defendant.
To effectively combat this, a competent defense attorney should set the wheels of his own investigation in motion. The time you spend finding a criminal defense lawyer with whom you can develop trust and rapport is time well spent. Defending drug cases frequently calls for a rapid and complete investigation of the location of the drug raid or arrest, and gathering photos and witness statements. The next step in the effort to obtain bail for a defendant includes gathering all this information and persuasively and effectively presenting it to both the prosecutor and the judge. Results matter and the fruits of this investigation could be the evidence the judge needs to grant a defendant bail.
Question #3: What will take place at my bail hearing?
The best way to explain what a bail hearing is would be to view it as a “mini-trial” without a jury. The state shoulders the entire burden of proof at a bail hearing. Most bail hearings will take place in the various district courts located throughout the state. Many of these hearings are held in the Sixth Division District located in the city of Providence and the Third Division District Court located in the city of Warwick. There are occasions when bail hearings will be held in Superior Court, most likely when co-defendants and probation violators are involved.
The state and its arsenal of prosecutors must have all the components of their case ready to go on this day. In drug offense cases, this typically involves the officer or detective in charge of the investigation, the detective who seized the drugs, the detective who took any statements and the officer or detective who field-tested the drugs. The first step any competent defense lawyer should take on the day of the bail hearing is to investigate whether the state has all the necessary witnesses needed to move forward. This inquiry, as to which witnesses are present the day of the hearing, should always be posed in the presence of the sitting judge.
If the state’s witnesses are not present, then the defendant will automatically receive bail. You would be surprised how often this occurs! The only way the state can maneuver out of a witness “no show” is if a sympathetic judge grants the state a brief continuance. These requests to continue because the prosecutor has no witnesses should always be objected to as many times as possible; the excuse provided by the officers are lame and do not amount to an emergency. At the bail hearing, the prosecutor must prove more than “probable cause” to arrest a defendant. This simply means that they have a higher burden of proof than what was needed to arrest a defendant but less than the “beyond a reasonable doubt” standard needed to convict someone at trial.
The state and the police have an added advantage: the judge, by law, when viewing the facts or elements of the case, can rule in favor of the state even when it’s a close call. This unfair advantage by the state is only permitted at bail hearings and will not be allowed at the defendant’s trial. However, to the defendant’s advantage, the state can only rely on “legally sufficient evidence to sustain a verdict of guilty.” This means that the state can only introduce evidence against a defendant that would be allowed at trial. They cannot rely on hearsay evidence, and the Rhode Island Rules of Evidence will apply. The arresting officer, detectives and other necessary witnesses must provide live testimony in court under oath. The Defense can call witnesses at a bail hearing and will be allowed to cross-examine and question the testimony of all the state’s witnesses.
A competent defense lawyer will always attempt to convince a prosecutor to give a defendant bail before commencing a hearing. This alleviates the necessity of a judge having to make the decision and is part of the layered process a defense lawyer should utilize when fighting for bail. At every step of the process, the attorney should be asking for bail. Many times, these cases are conferenced at the bench with the judge and he or she will decide if bail is warranted or not. Many times, a full hearing is warranted, and the judge will decide and articulate his reasons on the record in open court for granting or denying a defendant’s bail.
While those three questions are, the ones asked most often, there are five key questions that you should be asking as well, questions that you may not know. I’m going to give you some real insider scoop on this information, so read closely.
Question #4 What evidence will the judge consider at a bail hearing?
Under Rhode Island Law, the court will conduct what is referred to as a “two-tier analysis hearing.” Simply stated, a bail hearing in Rhode Island is broken down into two segments. The first portion of a bail hearing will focus on whether the police have a strong case against you. This first portion is a threshold requirement for the state and the police. This means that they must have enough evidence against a defendant to demonstrate to a judge that his or her guilt is obvious or evident, that the proof points directly to his guilt.
This standard is to be applied by the judge for all the elements that go into the narcotics charge. For example, if a defendant is charged with possession with the intent to deliver cocaine, the state must be able to prove to the judge the following: (1) knowing conscious possession of cocaine, and (2) intention to sell or deliver that cocaine to another person. The state must provide live in-court testimony and cannot rely upon solely on videos and reports. The arresting authorities will be required to take the stand under oath and testify as to; (1) How and when they found the cocaine; (2) Where they found the cocaine; (3) How and why they believe that the cocaine belongs to the defendant and (4) Why they believe the cocaine was intended for sale rather than personal use.
In addition, the officer or detective who seized and field-tested the drugs will be required to share the results of that test in open court. A field test involves using a chemical kit that either give a positive or negative indicator for the presence of a drug. After the state presents its case, defense counsel will then be allowed to cross-examine the state’s witnesses to discredit the accuracy and believability of what the police are alleging. A skilled defense attorney should be able to highlight to the court the narcotics officer’s mistakes and inconsistencies in his testimony. In addition to attacking the credibility and believability of the narcotics officer, the defendant’s lawyer must lay the groundwork for any possible search and seizure mistakes that the police made during their investigation. It’s very important to try to point out police mistakes during the early stages of the case. Often at this early stage, the police are ill prepared, and poking holes in their testimony could preserve the much-needed proof needed to win a “motion to suppress” when the case reaches Superior Court.
If the judge rules that the state has a strong case against you, the bail hearing proceeds to the second tier of the court’s analysis. If the defendant wins the first part of the bail hearing, then he is deemed not to be a danger to the community and the judge must grant bail. If the state wins this part of the bail hearing, then you will be presumed to be a danger to the community and the judge has the discretion to hold you without bail. However, a defendant can rebut this presumption that he is a danger by providing the judge with a strong package of information that demonstrates that you are a good candidate for bail.
Question #5: What factors will the court consider when deciding to give a defendant bail?
So, I am often asked what happens when the state and police have very strong and overwhelming evidence against a defendant. As discussed previously, when there is a lot of evidence against a defendant who is facing drug charges, he or she will be presumed to be a danger to the community. However, under what is referred to as a “tier two analysis” under the Rhode Island Constitution, the judge is required to allow a defendant to present additional evidence to persuade the court that he is not a danger to the community. This guarantees that a defendant will have his right to bail determined by due process. An attorney familiar with this process should be able to effectively present this information in a persuasive package form to the presiding judge.
The first factor that the court is required to consider in deciding whether the defendant is a threat to the community is the defendant’s history of respecting the law. This factor requires the court to consider a defendant’s lack of criminal history. If a defendant has a criminal history the judge will consider: (1) the seriousness of the past charges- if they were misdemeanors or felonies, (2) how long ago those crimes occurred and whether that defendant is on probation or not. The judge will also consider a defendant’s history of appearing at previously scheduled court dates.
The second factor the court will consider is the defendant’s ties to the community by way of family ties, business ties, or investments. This includes his or her family ties within the jurisdiction, employment, work history, and property owned. This factor focuses on the likelihood a defendant could possibly flee if released on bail. The more ties to the community, the less likely that he would flee.
The third factor that the court will consider is the severity of the likely sentence imposed and whether this would make him more likely to flee. This is an area where experience counts. The defense lawyer must find out before the hearing what the potential penalties are for the various charges and how the judge has ruled on similar cases in the past. An experienced narcotics lawyer will have a good idea what the sentence will be at the end of the case. The state will most likely overstate the seriousness of the charges and the sentence that the defendant will receive. The prosecutor will be quick to say “the defendant is facing many years in jail.” However, an experienced lawyer will try to persuade the judge that, even under the worst-case scenario, your client will not be facing a lengthy prison term. The less severe the sentence, the less likely one would flee the jurisdiction. This fact should always be brought to the attention of the judge deciding the issue of bail.
If the judge determines that the defendant has submitted persuasive evidence to show that he’s not dangerous or will not engage in illegal activity while released on bail, the state loses the benefit of the statutory presumption of dangerousness. If the defendant is not presumed to be a danger, then the court must set bail at an amount that will ensure the defendant’s presence at trial. The judge may also set other conditions to safeguard the community. These conditions could include a combination of home confinement, monitoring by the pre-trial service unit, waiver of extradition and drug testing.
Question #6: What will happen the morning of the bail hearing?
Let’s say a defendant has been in prison for two weeks and arrives at the courthouse for a bail hearing. He’ll be wondering what is going to take place in the courtroom. Typically, what occurs is that the defendant’s lawyer will arrive at 9:00 am and seek out which prosecutor will be handling the bail hearing. Many times, the newest and youngest members of the Attorney General’s office handle the bail hearings. This could be a good thing or a bad thing for the defendant.
The prosecutor may be inexperienced and a skilled lawyer may be able to out-strategize and out-maneuver him, resulting in the defendant getting released on bail. On the other hand, many young prosecutors often take an unusually tough stance on a case. The rationale for this is uncertain; perhaps the young prosecutors are trying to earn their stripes and advance their careers in a crowded pool of prosecutors. I also have had these newbies tell me that they have “marching orders” and have no discretion in the matter. They’re just following orders. This drives me crazy. Lawyers are trained to exercise their own independent judgment as the facts and circumstances of a case develop and change. Experienced lawyers who handle drug cases typically have a professional relationship with all the players so they will know long in advance who will be handling his client’s case. The first things that the defense lawyer will ask for from the prosecutor are police reports, search warrants, search warrant affidavits, photos, surveillance records and any other evidence that the police may have. Defense counsel should make every attempt to obtain these reports prior to the bail hearing.
Many times, although not required by law, the various police departments and prosecutors will provide the defense counsel a copy of the reports when the defendant first appeared in court. If defense counsel does not receive the police reports when he first appears in court, he should immediately reach out to the prosecutor and ask for them in advance. Although the prosecutor is not required to provide these reports in advance of the hearing, many of them will extend the professional courtesy in an effort to expedite the hearing.
In my opinion, the fact that prosecutors and police are not required to provide a copy of the reports the first day in court is a travesty of justice and needs to be changed. For example, in Massachusetts, the police are required to provide a defendant with a copy of the police report when he first appears in court.
Once it’s established that the defense has all the evidence, including the detective’s investigation of the defendant that led to his arrest, then the lawyers will begin negotiating. Many times, the prosecutor has a backload of files that need to be addressed, ranging from drunk driving and expungements all the way to probation violation hearings. It’s usually wise for defense counsel to allow the prosecutor to clear out his calendar of less serious cases so he can now give the proper attention to the details and mitigating factors of the case at hand.
Question #7: Can the defendant get bail without the necessity of having a full hearing?
Okay, let’s say the prosecutor has turned over all the evidence and defense counsel has fully read and evaluated it. He has spoken to his client and reviewed the reports with him to determine the accuracy of those reports. The most desirable outcome for the defendant and defense counsel is for the judge to grant immediate bail with as few conditions as possible. However, there are many other possible outcomes and many different pathways to reach that outcome.
The first pathway that defense counsel should embark upon is to attempt to convince the prosecutor to agree to bail. The practice of criminal defense offers very few guarantees but convincing a prosecutor to grant your client bail will assure his release from prison pending trial. To achieve this desirable outcome, he should argue the strengths of his case and the strengths of his client’s ties to the community, lack of criminal record, and demonstrate that he’s not a risk of flight
Many lawyers do not take advantage of this golden opportunity. If a prosecutor is effectively convinced to grant a defendant bail, then that’s exactly what will take place. The judge will no longer have the power to hold a defendant because the state has agreed to release him on bail by lifting their objection. I’ve been very successful using this tactic over the years I’ve been handling bail hearings.
If the prosecutor refuses to agree to give a defendant bail, then the case will either be conferenced at the bench with the judge or in the judge’s chambers. A prosecutor can refuse to agree to bail for a defendant for several reasons. The prosecutor can argue that a defendant has a lengthy criminal past. Or — and I don’t like this! – his supervisor has handed down a directive stripping them of their professional discretion. A directive from a supervisor has always bothered me because I believe that prosecutors are professional lawyers entrusted to exercise their independent judgment and discretion in light of a set of facts that are presented at a specified time. It’s always disturbing when a prosecutor has a pre-determined hard-line approach before hearing defense counsel’s extenuating and mitigating arguments.
So, if the prosecutor will not agree then a conference with the judge will be the last step before a full hearing with live witness testimony. Defense counsel will, for a second time in the same morning, advocate the strengths of both his client’s case and his client’s unique personal background. It is extremely wise for defense counsel to take advantage of this additional conference because many times the judge will grant bail to a defendant after this brief bench conference. This alleviates the need for a full bail hearing and the uncertainty that comes along with it. Defense counsel should never just stand up at the call of the calendar and request a hearing without first trying his chances with the prosecutor and judge.
At this juncture, the judge could agree with your arguments and exercise his discretion to give a defendant bail by overruling the prosecutor. Alternatively, he could reserve judgment and request that the case proceeds to a full hearing. Defense counsel should pay close attention to which way the judge may be leaning. This will assist counsel in making an informed decision as to whether to go to a hearing or not. If a defendant waives his right to a hearing, he will be held for 90 days and will only get bail if his case is not charged in Superior Court within that 90-day period. If a defendant loses a bail hearing, he will likely never get bail.
Question #8: What are the possible outcomes after a hearing?
If the sitting judge requires a hearing before making a final determination as to whether the defendant is granted bail, several outcomes could occur. The best outcome would be that the judge rules that the state has not met its burden of proof. If the judge rules, after a full hearing, that the state’s witnesses have not proven a strong case against the defendant, he must grant bail.
The second possible outcome after a bail hearing is that the proof of a defendant’s guilt is great or the presumption of guilt is evident. This basically means the police have a strong case against a defendant. However, the judge can still grant a defendant bail after careful consideration of the tier 2 evidence discussed earlier in this report.
Even though the judge has heard the testimony of the police and narcotics detectives and was convinced that they have a strong case, bail could still be granted. To do so the judge must be convinced that the combination of the defendant’s family ties, lack of criminal history and the severity of the charge has left he or she to feel that the defendant is not a danger to the community. The judge could release the defendant on surety bail with conditions or non-surety bail without conditions.
Lastly, the judge could rule that the defendant is a danger to the community and that his ties to the community have not rebutted this finding of dangerousness. Under this ruling, a defendant will not be given bail. This means that the defendant could remain in prison for up to six months waiting for his case to either be indicted or informed in Superior Court. If the Attorney General’s Office does not indict or inform the Defendant’s case within six months, then the defendant is entitled to move for a dismissal of his case which would effectively mandate that the defendant would be released from prison.
If you have questions regarding your case please give me a call or text me today.
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