What Is Considered Possession in North Carolina? Click here to obtain a Word version of this document.. Overview. Jeffrey Johnson Actual possession is fairly straightforward and simply requires that the drugs, or other contraband, was found on your person with nobody else having access to the same. Talk with our team at Randall & Stump about your situation and the best way to establish the drugs weren’t yours. Because you all have access to the kitchen, knowledge of the drugs may be easy to prove, but sole dominion and control will be harder to show since the kitchen is shared property. Did you know you can be charged with possessing drugs that are not actually in your possession? Mohamed Fehmi told local MTV television station during a tour to the Lebanon-Syria border that Interpol is also following a third suspect. Our goal is to be an objective, third-party resource for everything legal and insurance related. Can I be charged with possession if I had nothing on me? Actual possession is obvious, so you’re probably asking: What is the meaning of constructive possession? Constructive possession is a legal fiction that allows prosecutors to charge the defendant with a drug or weapons crime even though the guns or drugs were not found on the defendant. If it seems like constructive possession is hard to prove, you’re right. Let’s say you’re a passenger in the front seat of your friend’s vehicle. When possession of the location is not exclusive, the inference of intent and capability to maintain dominion and control over the illegal item must be supported by additional circumstances pointing to an accused's knowledge of the nature of the illegal item and their presence. Prosecutors don’t have to prove exclusive possession to win a conviction under the theory of constructive possession. State v. Ingram agreed and the charges stood. Constructive possession requires that the prosecutor prove beyond a reasonable doubt that the defendant (1) had knowledge of the drugs and (2) had immediate and exclusive possession of the drugs or control of them. Conviction for possession of illegal drugs requires proof that the defendant possessed the drugs knowingly or intentionally. While the elements of constructive possession can vary by jurisdiction, according to constructive possession case law the factors that are important for establishing constructive possession are generally a knowledge element, as well as a dominion and control element. How long can a felony drug charge be pending? If a person has exclusive possession of a controlled substance, knowledge of its may be inferred or assumed. 452, 697 A. Refers to the drugs that law enforcement found on your actual person. When one spouse has exclusive use and possession of the marital home, the other spouse is … Brown v. State , 911 S.W.2d 744, 747 (Tex.Cr.App. Where the drugs found due to an illegal search and/or seizure. Even though the charge of constructive possession is much harder to prove than actual possession, if you’ve been charged with possession of a controlled substance based on this constructed legal fiction, you should take it seriously. The best thing you can do is hire a drug possession defense attorney. A police officer finds drugs in your car after being pulled over, A police officer finds drugs under the chair you are sitting on, You are pulled over, and drugs are found on one of your passengers, Drugs are found on your partner or spouse in your house. You might not have known someone slipped drugs into your coat pocket or purse. A weak constructive possession charge can be used to beat a drug possession charge. Prosecutors often try to prove you had constructive possession if the drugs were in your house, apartment, or vehicle. You can have constructive possession of drugs alone or with others. This clause can turn a possession of a drug charge into a dealing charge, simply based on the amount/weight of possession of a certain drug. Tom Sizemore Busted for DUI and Drug Possession. Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?. State v. Randall & Stump, Criminal Defense Attorneys, Charlotte Criminal Lawyers and DWI Attorneys. Constructive possession is much more difficult to prove that actual possession. In the United States, citizens have a reasonable right to privacy. Constructive possession of a controlled substance is a drug possession charge where the person didn’t physically have possession of the drugs but knew about the presence of drugs and had dominion and control over them. After the arrest, they search your friend and their vehicle for alcohol or drugs related to the DWI. To prove dominion and control, a prosecutor must show that the individual had the ability and the intention to control the drugs. [3-700] Suggested direction A dictionary would tell you that to possess something means to have that thing. Many times, however, contraband is found in a place over which the defendant does not have exclusive possession. Quotes and offers are not binding, nor a guarantee of coverage. Proximity may not always be enough to prove constructive possession. While the theory of constructive possession is useful when multiple people are charged, the argument is strongest if you’re the sole occupant of the home or user of the vehicle. A police officer pulls your friend over and arrests them for driving while intoxicated. If an individual has knowledge of drugs discovered in a certain location or was aware of the drug’s presence based on the evidence, they may be convicted of constructive possession of a controlled substance if the prosecutor can show that they also had dominion and control over the drugs. Constructive possession necessarily focuses on the location of the contraband, thus, the location where the drugs are found is a distinct element of constructive possession. It literally shows an illegal aluminum foil drug-smoking device to illustrate how Radinovich was charged by police back on Feb. 4, 2005, with possession of drug paraphernalia. Minimum sentences can also include time in jail in addition to fines. 7.6.3 - Possession of a Drug of Dependence. We aren’t afraid to fight allegations of actual possession in court. Charlotte Criminal Lawyers and DWI Attorneys, 2125 Southend Drive Suite 253 Once it is established that narcotics were found on premises under the defendant’s control, it may be inferred that the defendant had the requisite knowledge and possession for a conviction of possession of a controlled substance. Exclusive use and possession of the marital home gives one spouse the right to remain in the home both during the pendency of the action and potentially when the divorce is finalized. Although in some cases, prosecutors can use the defendant’s or other witness statements, the elements of knowledge and dominion and control are often proven by indirect evidence. I was arrested for cocaine possession; should I take the prosecutor’s plea offer? But in terms of the law, Texas prosecutors do not need to prove a drug defendant was in “exclusive possession” of the place where the police actually found the drugs. 7.6.3 - Possession of a Drug of Dependence. We update our site regularly, and all content is reviewed by experts. If you are not the only occupant of the house or car, it can be more difficult to prove whether you possess the controlled substance. It goes without saying that the best way to beat constructive possession charges, or better still to avoid a constructive possession charge, is to steer clear of drugs. How do you prove constructive possession? Hiring a criminal defense lawyer experienced in defending drug possession cases can help you beat a drug possession charge. Importance of Adverse Possession. Many times, however, contraband is found in a place over which the defendant does not have exclusive possession. When a couple divorces, the issue of who will live in the family home, or who will use the … The first degree drug possession jury instruction states: In order to find the defendant possessed _____, it is not necessary that it was on the defendant’s person. That defendant was aware of the presence and character of the contraband, That the contraband was subject to defendant’s dominion and control. Disclaimer: At Randall & Stump, Criminal Defense Attorneys, we understand the nuances of possession under North Carolina law. I need to clarify that concept of possession as it … Copyright © 1995-2021  |  FreeAdvice.com  |  15310 Amberly Dr, Suite 250, Tampa, FL 33647  |  Privacy Policy  |  Terms & Conditions  |  CCPA. You can reach out to us online or call (980) 237-4579 to set up a free initial consultation. Our opinions are our own. If the prosecutor can’t show that the defendant possessed the drugs, the prosecutor also won’t be able to prove that the defendant was in possession of the drugs with the intent to distribute them. What Is the Difference Between an Alcohol Related DWI and a Drug Related DWI? A criminal defense attorney with experience defending constructive possession of drug cases will be extremely helpful in resolving constructive possession cases and advise you on how to beat a constructive possession charge. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. If convicted of drug possession, you are facing time in jail and/or prison, hefty fines, a period of time on probation, and a permanent criminal record. The more complicated scenario is when you’re the driver. Proving the Elements of Constructive Possession, Defenses to Drug Charges Based on Lack of Possession, Consequences for Constructive Possession of Drugs Conviction, legal defenses for drug possession charges, Hiring a criminal defense lawyer experienced in defending drug possession cases. The ad, from the House GOP leadership-backed Congressional Leadership Fund (CLF), is perhaps one of the most brutal this cycle. In a car with multiple passengers). The earlier you reach out to an attorney with Randall & Stump, Criminal Defense Attorneys, the faster we can start protecting your rights. Assistant State Attorney Donald Loughran said "exclusive possession" is not a requirement in these types of cases. To establish constructive possession, it is not necessary to show that a defendant has exclusive control of the premises. 2017 Fla. App. For possession in relation to drugs, see the definition of possession under Supply of Prohibited Drug and Deemed Supply at . The Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. ; The offence has two elements that the prosecution must prove beyond reasonable doubt: There must be additional evidence in cases when there is more than one occupant to prove both knowledge and control. If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed. Constructive possession may be inferred from the defendant’s exclusive control of … Although exclusive control is not necessary to establish constructive possession, a showing of more than mere proximity to the drugs is required. This doesn’t influence our content. Whether a person has dominion and control, and thus constructive possession, is determined by the totality of the circumstances relating to dominion and control and their cumulative effect. Although police are authorized to search an individual or his or her property in some situations, they must follow certain rules and procedures when doing so. We take a close look at your case to see if we can attack the prosecutor’s case requiring them to prove all elements of possession beyond a reasonable doubt. If you did, you’re facing a misdemeanor or felony charge depending on the type of drug, packaging of the drug, and quantity of the drug. Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. Nobody else had equal access to the drugs found, You had the intent to possess the type of drug you are accused of possessing, The drugs were not found on your person, but were found in your vicinity with you having the ability to access the drugs for the purpose of disposing of or using them, OR, The drugs were found in a location where multiple people had knowledge of and access to the drugs (ex. He earned a J.D. Click here to obtain a Word version of this document.. Overview. Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. All Rights Reserved. More often than not, possession debates are about whether you had constructive possession of drugs. So, proximity may not be enough to prove possession. Have you or a relative been charged with drug possession? For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. exclusive possession and the prosecution must negate possession on the part of any other person. Call us at 980-237-4579 or submit the details via our online form. Esposito is the co-author of the books “Bomb Squad: A Year Inside the Nation’s Most Exclusive Police Unit,” and “Dead on Delivery: Inside the Drug Wars.” About Contact A charge of constructive possession of a firearm by a convicted felon should be taken seriously. Furthermore, a person is charged with the illegal possession of something that wasn’t in his or her actual possession. Drugs in your vicinity aren’t necessarily yours, and we’ll pose that issue to the judge or jury. Mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession. In an above example, there was a discussion about living areas and roommates (i.e., non-exclusive occupants). We’ll force the prosecutor to build a stronger link between you and the drugs, and when they can’t, this raises reasonable doubt. Exclusive Occupancy. Possession of a drug of dependence is an offence contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the "Drugs Act"). In Holloman v. State, the defendant was convicted of possession of cocaine, and he didn’t even know he had any cocaine on him. We will contact you as soon as possible. Insurance Lawyer. It’s harder to challenge the claim of constructive possession if you’re the only person who uses the car. State, 346 Md. Adverse possession is important to understand because, as a property owner, you need to be aware of what can happen if you are not utilizing your land. Free Advice® is a unit of 360 Quote LLC providing millions of consumers with outstanding legal and insurance information and advice – for free – since 1995. Drug possession charges are never usually clear cut or definitive. Actual possession simply means that a person is in possession of the drugs if he or she is holding drugs or carrying the drugs on his or her person. Insurance information may be different than what you see when you visit an insurance provider, insurance agency, or insurance company website. We realize there are circumstances where it is not so cut and dry. Site Contents 2021 Randall & Stump, Criminal Defense Attorneys. That means drug charges based on constructive possession, rather than actual physical possession, provide an attractive defense for drug-related charges. There can be joint dominion and control over illegal drugs. Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. Charlotte, NC 28203, Your preferred method of contact*: PhoneEmail. Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Prosecutors don’t have to prove exclusive possession to win a conviction under the theory of constructive possession. A criminal charge based on constructive possession is more difficult to prove than when the defendant is in actual possession of the drugs because prosecutors have to prove the elements of. That means drug charges based on constructive possession, rather than actual physical possession, provide an attractive defense for drug-related charges. You can’t do this alone. The difference between actual and constructive possession is that for actual possession, the police find the contraband on a person, in the hand, in clothes, or elsewhere on the body. The prosecutor would claim you had actual possession of the drugs. Constructive possession of a controlled substance is a drug possession charge where the person didn’t physically have possession of the drugs but knew about the presence of drugs and had dominion and control over them. Exclusive use and possession of the marital home gives one spouse the right to remain in the home both during the pendency of the action and potentially when the divorce is finalized. Whether a person is responsible will depend on the facts and evidence. When you think of possession, you probably think of what the law refers to as actual possession. Prosecutors don’t have to prove exclusive possession to win a conviction under the theory of constructive possession. Proximity may not always be enough to prove constructive possession. A weak constructive possession charge can be used to beat a drug possession charge. Charges Dismissed & No Registration for Secretly Recording Girlfriend, Domestic Violence Protective Order Dismissed. We strive to help you make confident insurance and legal decisions. What Is the Difference Between Drug Paraphernalia and Marijuana Paraphernalia? To prove knowledge, a prosecutor usually must show that the individual knew that the drugs were located in or around where they were discovered and that the individual also knew, or should have known, that the drugs were illegal. Also, don’t allow others to store drugs and other contraband in your house or car. Prosecutors often try to prove you had constructive possession if the drugs were in your house, apartment, or vehicle. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. For example, this could include suspected paraphernalia found in the car you occupied. Finding trusted and reliable insurance quotes and legal advice should be easy. Free Initial Consultation | (980) 237-4579, On behalf of Randall & Stump, PLLC in Drug Charges, Drug Crimes, Drug Offenses on Monday, March 1, 2021. If, during the period the original owner uses the land, adverse possession cannot be claimed. Luo, 25, was in possession of the drugs at the Senai International Airport on Oct 20, 2014. Instead, the state can point to one or more “affirmative links” that show the defendant had “knowledge of and control over the contraband.” For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. When Police locate a drug in a common area such as a living room, kitchen, or bathroom or even a vehicle that is shared by multiple people, in the absence of evidence linking the drugs to a particular person (i.e. The punishment for constructive possession in Virginia, Texas, Nebraska, and most other states is the same as the penalties for actual drug possession Maximum penalties go up to a lifetime in prison and hundreds of thousands of dollars in fines. This is especially true in drug paraphernalia cases (drug paraphernalia is any “thing” used to ingest or store a drug, like a bong or a heroin needle, etc.). Constructive possession may be inferred from the defendant’s exclusive control of the premises where narcotics are found. All legal content, insurance rates, products, and services are presented without warranty and guarantee. State v. You can have constructive possession of drugs alone or with others. Drug possession charges in North Carolina rest on whether you possessed a controlled substance. To begin your search for a criminal defense attorney you can enter your ZIP code in our search tool. There are two types of possession: constructive possession and actual possession. This means that mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession. The land, adverse possession can not be claimed is more than proximity. ( 2021 update ) tell you that to possess something means to have that thing the,. Two or more persons may jointly possess an article, exercising control over illegal drugs, by itself is. Others as passengers for informational purposes only has exclusive possession to win a conviction under the theory of possession! Your person here ’ s plea offer direction a dictionary would tell you that to possess something to! 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