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Question: My son has been charged with a Class 2 Felony for distribution of a controlled substance. He is 16 years old with ADHD and he gave his teammate his prescription medicine. He has never been in trouble before. We are about to take a plea bargain because if we go ahead with the trial we will loose. Can't we use his disability as a defense? Our lawyer says the judge won't care.
Thanks for your e-mail. Your question (can you use your son's disability as a defense in a criminal case) is not easily answered. Here is what I can tell you.
Laws vary from state to state. In Illinois (where I practice), one of the things that the prosecution must prove that the defendant distributed the substance with the intent to portray it as a controlled substance.
Therefore, intent is important. Also, is he charged with distribution of a controlled substance or a look alike substance. That is important too.
Your lawyer is partially correct if the prosecution can prove intent. However, in a plea conference, your son's disability will be important as "mitigation." Your lawyer should know what that means.
Steve Glink, Attorney at Law.