Frequenting Charges for Drug Activity at a Home You Own

Attorney Answer

On the charge you are afraid of, the law is on your side — but only about the past. Idaho's frequenting statute makes it a crime to be present where you know illegal drugs are being kept or used. You did not know while you were in custody. You know now. That is the whole difference, and it means the danger is not what already happened at your house. It is walking into it today.

Idaho Code § 37-2732(d) provides that "[I]t shall be unlawful for any person to be present at or on premises of any place where he knows illegal controlled substances are being manufactured or cultivated, or are being held for distribution, transportation, delivery, administration, use, or to be given away." The offense is a misdemeanor punishable by a fine of up to $300 and up to 90 days in the county jail. Knowledge is written into the statute as an element. It is not an argument your lawyer has to construct — it is on the face of the provision, and the State has to prove it.

Two things follow. First, for the period you were in jail, you have the best evidence any defendant could ask for: custody records establishing you were not there and could not have known. Second, and this is the part your prior answer never told you — the protection runs out the moment you have knowledge. Now that you have learned what has been going on, going to the house while that activity is occurring is exactly the situation the subsection describes. Your instinct to be careful about going home is correct, and it is correct for a reason nobody explained to you.

One clarification, because people often expect otherwise: this section contains no separate offense for keeping or maintaining a drug premises. The presence offense in subsection (d) is what is there.

For the child protection case, the calculation is different and in some ways more urgent. A home where drug activity has been occurring is a problem in a CPS case whether or not anyone charges you criminally, and the agency will find out. The person who tells them should be you, through counsel, in writing, with the jail records attached — not a police report that surfaces three weeks from now.

What you can do

1. Do not go to the house while anything is going on there, and do not send someone to check for you. Idaho Code § 37-2732(d) turns on knowledge, and you now have it. 2. Contact your criminal defense attorney today. If you do not have one, contact the public defender handling your existing charges — this is connected to a case they are already on. 3. Pull your custody records. Booking and release dates for each of the three jail stays are objective proof that you were not present and could not have known during those periods. Get certified copies. 4. Have your attorney, not you, notify law enforcement in writing that you did not consent to anyone living at or using the property and that you were incarcerated during the relevant period. A letter from counsel creates a dated record and removes the retaliation problem you are worried about. 5. Tell your CPS caseworker and your attorney in that case immediately, and put it in writing. Getting ahead of it is worth far more than being asked about it later. 6. Document the occupancy: the utility transfer into their name, every text or call with the acquaintance about watching the property, dates, and anyone who can confirm what the arrangement actually was. 7. Ask a lawyer how to lawfully remove the occupants before you do anything yourself. People who have been living there and have put utilities in their own name may have rights that require a formal process — changing the locks yourself can turn your problem into a second problem. 8. Do not confront the acquaintance or anyone at the property.