Possessing Drugs Does Not Necessarily Mean Your Guilty of Possession

Possessing Drugs Does Not Necessarily Mean Your Guilty of Possession

Just because you may be found in possession of cocaine, marijuana, or another drug, does not necessarily mean that you are guilty of possession of a controlled substance.  Before you plead guilty contact our office, and speak with one of our attorneys today for a free consulation, 801-641-2933 and find out if the State can even convict you (the case against you may have to be dismissed). The State must prove that you intended to use the drugs as your own.

For example, a parent may find drugs in a child’s room, and pick them up.  The parent clearly has them in their hands, but is he/she innocent? Let’s assume he/she has no intent to control them for their illegal purpose.  The police seize drugs of of people every day, yet they don’t get charged with illegal drug possession, why? This is a difficult concept, but the Utah Supreme Court has done a great job breaking this down in State v. Fox, 709 P.2d 316.

In Fox, the Court said that a conviction for possession of a controlled substance with intent to distribute requires proof of two elements:

(I) that the defendant knowingly and intentionally possessed a controlled substance; and

(II) that defendant intended to distribute the controlled substance to another.

The Court noted that “actual physical possession is not necessary to convict a defendant of possession of a controlled substance.” In other words, if a drug dealer intends to sell the drugs that he has in his basement, he still “constructively possesses” those drugs even if he’s in another country on vacation. Why? Because he still has control over the drugs.

It is important to distinguish that a person “who might know of the whereabouts of illicit drugs and who might even have access to them, but who have no intent to obtain and use the drugs can not be convicted of possession of a controlled substance.”

The Court further stated that “knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.”  Many defendants do not know this, and they simply plead guilty.

In essence under Fox, in order to find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove a link with the defendant and the drug to permit a reasonable belief that the defendant had:

  1. A) thepower; and
  2. B) theintentto exercise dominion and control over the drug.

Finally, in order to proceed against you, the State must convince a judge that they have some basis to presume you had both the power and the intent to exercise dominion and control over the drug. IT CAN NOT SIMPLY BE ASSUMED.

Courts will look to other things, to look at intent for example:

1) Did you admit the drugs were yours, or make other “incriminating statements”?

2) When the cops showed up did you run to hide the drugs, or engage in other “incriminating behavior”?

3) Were the drugs found in a specific area over which you had exclusive control like in your bedroom (in your closet or drawer containing your personal clothing or other personal effects).

4) Was there a presence of drug paraphernalia among your personal belongings?

In every case, whether a person has constructive possession of drugs is “a factual determination” which depends on the facts of each case. For an analysis of the specific facts of your case, call us today for your free consultation.

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