Were you in possession of the Drug?

Were you in possession of the Drug?

What happens if I am a passenger in the car and the driver my ex-boyfriend has marijuana in the car and on his person.  Can I be charged?

Drug possession is not a blanket charge, and can be broken down in a few different ways. The two main categories drug charges can be placed into are as follows: actual possession, and constructive possession. What’s the difference, and should you care?

You Can Be Charged with Possession… Even if There Are No Drugs on Your Person

You don’t actually need to have any drugs on your physical person in order to be charged with drug possession in the state of Utah.  All that matters is that the prosecutor can prove that you had both the means and the intention to control drugs (or drug paraphernalia), such as keeping drugs nearby while waiting to make a sale.  This is “constructive possession,” as opposed to a suspect allegedly having drugs on their person or in their bag or purse, which is “actual possession.”

Were you in possession of the Drug?

Because constructive possession is more intangible and abstract in nature than actual physical possession, the courts consider factors such as whether or not you made any incriminating statements (which reinforces the idea that it’s best not to speak with police until you’ve consulted a defense attorney, do not ever believe that you can talk your way out of a criminal charge just because you are honest and the office was nice to you), The Court must take into consideration: whether you have a record of drug charges, how near you were physically located to the area in which the contraband was located, and whether you were acting suspiciously (showing signs of drug intoxication, e.g. aggressive or erratic behavior).

State v. Cardona-Gueton: Proving a “Sufficient Nexus”

Suspicious circumstances alone are not sufficient to prove that you are truly guilty of constructive possession.  As with other crimes, the prosecuting attorney must be able to prove beyond a reasonable doubt that you, as the defendant, were exercising control over the drugs in question.   The Utah Court of Appeals in 2012 has ruled the following:

“Constructive possession must be proven by a sufficient nexus between the defendant and the drugs to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs.”

Were you in possession of the Drug?

In Cardona-Gueton the court found that the Defendant did not have drugs on his person, but the link between his ownership of the money, the bicycle, and the presence of the contraband inside, combined with the fact that he had been witnessed behaving suspiciously by the police, ultimately added up to prove constructive possession. This would be the “sufficient nexus.”

Possible Defenses Against Constructive Possession Charges in Utah

As intent is also a key factor in proving guilt, it must also be established that you planned to “exercise control” over the contraband in question.  If were not in a position where you could have exercised control — perhaps because you weren’t even present when the drugs were left in a certain room or vehicle, or because you can’t identify a substance and didn’t even know what it was, or perhaps because you’re a single employee at a vast business with hundreds of people filtering in and out of the building — that may be able to help bolster your defense.  In this way, the complexity of proving constructive possession can sometimes work in the defendant’s favor.

In terms of the potential penalties, it doesn’t make much difference whether you are convicted of actual or constructive possession.  In either case, you would be facing the same amount of jail time and restitution.  Factors which can make sentencing worse, which are known as aggravating factors, include selling drugs in a school zone, committing child endangerment, weapons possession or having a history of prior offenses.  As the amount of drug increases, the penalties become harsher, and a misdemeanor could even become a felony.

If you’ve been charged with constructive or actual possession in Utah, you need an aggressive criminal defense lawyer who can fight for you.  To set up a free and private case evaluation, our attorneys today.

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