When you think of a drug possession charge, you may naturally believe it means someone was found with drugs physically on them. Therefore, you might be surprised and confused if you are arrested for drug possession when you did not physically possess any drugs.
Your arrest was likely based on the theory of constructive possession. This means that you are legally in possession of the drugs even though they were not within your physical control.
Constructive possession is different from actual possession, which is when you are found with drugs physically on you.
Knowledge and control
To find you guilty using the theory of constructive possession, the prosecution must prove beyond a reasonable doubt that you knew the drugs were there and you had the ability to control the drugs.
You cannot be found guilty under constructive possession without both elements being proven. For example, if drugs are found in your vehicle but you did not know they were there, you cannot be guilty of drug possession.
Likewise, if you are found in a vehicle where drugs are present but you do not own the vehicle, this can cast doubt on whether you have control over the drugs and potentially serve as a defense to a charge of constructive possession.
Constructive possession penalties
The penalties for constructive possession of drugs are generally the same as if you were found in physical possession of them. However, as with any drug charge, the exact penalty you receive depends on the circumstances of the crime, such as the type of drug and how much of it was discovered.
There are several possible defenses to a charge of constructive possession. Aside from showing that you had no knowledge of or control over the drugs, the drugs might have been illegally seized or your home, vehicle or property illegally searched. Examining all details of the situation is necessary to develop a solid defense strategy.