Oxford Criminal Defense Blog

Expunge a Felony?

While having a conviction or plea of guilty expunged from your record is one of the great second chances provided by our criminal justice system, it is not always an available option. In Mississippi not only are misdemeanors eligible to be expunged, but some felonies are as well. However, there is a very limited number of felonies which may be expunged, they include: shoplifting, larceny, possession of controlled substances, malicious mischief, bad check offenses, and false pretenses. Some DUI offenses can also be expunged.

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Like it Never Even Happened

In Mississippi if you are convicted of or plead guilty to a misdemeanor there is a good chance you will have the opportunity to have that conviction expunged from your record. Having a conviction expunged from your record is essentially a reset button, it gives you the opportunity to truthfully state, on a job application, that you do not have a criminal record. As you can imagine this will benefit you for the rest of your life and open doors which would otherwise remained closed due to having a conviction on your record.

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Expungement

In its most simple terms an expungement is the process by which certain convictions, guilty pleas, arrests, and records can be effectively erased and/or be hidden from the public. Having your record expunged allows you to truthfully and legally to state that you have no criminal record on most applications.

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Possession of Paraphernalia Defined

When dealing with possession of paraphernalia, Miss. Code Ann. § 41-29-139(d) states in pertinent part: (1) It is unlawful for a person who is not authorized by the State Board of Medical Licensure, State Board of Pharmacy, or other lawful authority to use, or to possess with intent to use, paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Law. Any person who violates this subsection (d)(1) is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both; however, no person shall be charged with a violation of this subsection when such person is also charged with the possession of thirty (30) grams or less of marijuana under subsection (c)(2)(A) of this section. (2) It is unlawful for any person to deliver, sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell, paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Law. Except as provided in subsection (d)(3), a person who violates this subsection (d)(2) is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both. (3) Any person eighteen (18) years of age or over who violates subsection (d)(2) of this section by delivering or selling paraphernalia to a person under eighteen (18) years of age who is at least three (3) years his junior is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than one (1) year, or fined not more than One Thousand Dollars ($ 1,000.00), or both. (4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as paraphernalia. Any person who violates this subsection is guilty of a misdemeanor and, upon conviction, may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($ 500.00), or both. (e) It shall be unlawful for any physician practicing medicine in this state to prescribe, dispense or administer any amphetamine or amphetamine-like anorectics and/or central nervous system stimulants classified in Schedule II, pursuant to Section 41-29-115, for the exclusive treatment of obesity, weight control or weight loss. Any person who violates this subsection, upon conviction, is guilty of a misdemeanor and may be confined for a period not to exceed six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.

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Penalties for Possession of Paraphernalia

In Mississippi, possession of paraphernalia is a misdemeanor. If convicted of possession of paraphernalia, a misdemeanor, you could face up to six (6) months in a local jail and be required to pay a $500.00 fine. One thing to keep in mind is that the penalties for possession of paraphernalia, in many instances, are even greater than those for possession of marijuana.

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Possession of Paraphernalia a Broad Term

It is easily understood that being caught in possession of drugs such as marijuana and/or controlled substances is a crime which can carry severe legal consequences. What many do not realize is that being in possession of paraphernalia, even in the absence of drugs or controlled substances, is a crime. Paraphernalia is defined as anything used to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance….” As you can see, this is a broad definition leaving law enforcement with the authority to determine if they believe some of the items are being used for illegal purposes.

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From Minor to Major

In the event a driver is pulled over, even due to a minor traffic violation, this may give the officer the opportunity to discover more serious circumstances, such as a driver being under the influence. As is a fairly common occurrence, a driver is pulled over for a minor traffic violation but when the police officer comes to the driver’s window they smell marijuana or perhaps alcohol. At that point, the officer has the requisite probable cause to search the vehicle. Suddenly something as seemingly minor as rolling through a stop sign has evolved into something far more serious.

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From Careless Driving to Criminal Charges

Drivers often are confused or simply unaware of what types of actions give the police the right to make a traffic stop. Often the police claim “careless driving” as the reason for making a stop. “Careless driving” according to Mississippi law does give police a broad area in which to work when it comes to making a stop. According to Miss. Code Ann. § 63-3-1213 careless driving is defined as driving “any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances….” This definition can include swerving, rolling stops, or even crossing the fog line or hitting the rumble strips.  Being pulled over for even seemingly minor violations can land a driver in a much more serious situation if drugs and/or alcohol are discovered incident to the traffic stop.

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Breathalyzer Test Protocols

When a driver is suspected of “drunk driving” (DUI), and the police wish to employ the Intoxilyzer 8000 or to use the results of an Intoxilyzer 8000 test, certain protocols must be followed. One of the requirements for the Intoxilyzer 8000 test results to be admissible as evidence is a twenty-minute observation period being employed prior to the test being administered. This is a requirement under the Mississippi Department of Public Safety guidelines. This observation period is required in order to determine that the driver has not ingested anything prior to the collection of the breath sample.

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Admissibility of Intoxilyzer Results

Most drivers have heard of breath tests, and the use of the Intoxilyzer machine when suspected of DUI. While this test can provide important evidence for the prosecution, it is at times not allowed as evidence in a drunk driving case. It is important to confirm a number of requirements imposed upon officers were properly adhered to before the breath test results are allowed to be used in court. These requirements include: 1. that proper procedures were followed; 2. the operator of the breath test machine was properly certified to perform the test; and 3. the accuracy of the machine has been certified.

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