The most common drug charge, especially when it comes to arrests made under local drug laws, involves possession of a controlled substance. When it comes to possession, though, you don’t have to have the substance in your hand or your pocket in order to be found in possession — you may have what is termed “constructive possession.”  

Constructive possession of a controlled substance happens when you do not have actual physical possession of the drug, but you have both:

  • Knowledge of the drug’s presence on or about your property; and
  • The ability to maintain dominion and control over it.

Merely being in close proximity to a drug is not enough to show constructive possession — the element of dominion and control adds an extra layer that must be proven in order for it to count as constructive possession. Legally, constructive possession is treated the same as actual possession, and allows for the same possible drug crime defenses.

It is possible for more than one person to be charged with constructively possessing the same controlled substance (for example, if more than one individual has keys to a van filled with narcotics).

What is Considered “Knowledge”?

Generally, the knowledge element of constructive possession has two components:

  • That you know the substance is on or around your property (and this knowledge can be inferred or attributed to you by incriminating facts or circumstances); and
  • You knew or should have known about the illegal nature of the drug.

These both must be fulfilled in order to prove constructive possession of a controlled substance.

What is Considered the “Ability to Maintain Dominion and Control”?

Depending on what state you’re in, the ability to maintain dominion and control can vary according to the facts of the case. Generally, this is defined as when you knowingly have the power and intent to control the whereabouts of the substances. If you have access to and control over the place where the drugs are located (for example, a locker that you have the key to), then you have the ability to maintain dominion or control. Even if you don’t have physical possession of the drug, if you have the ability to gain possession of it, this can count as constructive possession.  

Are Drugs in My House or Car Enough to Show Constructive Possession?

It depends. While close proximity to a controlled substances is not enough to prove constructive possession, additional facts can lead to a finding of constructive possession. For example, if the drugs are located in the trunk of a car, and you have the keys to the car, you could be found to be in constructive possession of the drugs.

Other circumstances that might lead to a finding of constructive possession may relate to the occupancy of the home or car — whether that occupancy is exclusive or non-exclusive.

What is Exclusive Occupancy?

If you are the sole occupant of a home or car where a controlled substance was found, then your exclusive occupancy is often enough evidence of your ability to exercise dominion and control over the substance, as well as your knowledge of its presence. If you’re the only one there, it’s assumed that any controlled substances in your home or car belong to you to some extent.

What is Non-Exclusive Occupancy?

If, however, you are not the sole occupant of the home or car where a controlled substance is found, this changes the circumstances a little bit. Possession is slightly more difficult to prove when there is more than one occupant, and requires additional evidence.  

For example, if there are several roommates sharing a house, and the drugs are discovered in the kitchen (an area that all of the roommates had access to), it is difficult to prove that only one roommate had possession of the drugs. Instead, additional incriminating facts or circumstances must be taken into account to determine possession.

What are Incriminating Facts or Circumstances?

How much weight the courts put on specific facts or circumstances will depend on what state you’re in. However, there are a few circumstances that can commonly link a person and a controlled substance.  For example:

  • The drugs are in plain view;
  • The drugs are found with the person’s personal items;
  • If in a home, the drugs are found in that person’s bedroom;
  • If in a car, the drugs are found on the same side of the car or are in the person’s immediate proximity;
  • The person exhibits suspicious behavior during arrest;
  • Ownership of drug paraphernalia or smoking devices; or
  • Ownership or control over the place where the drugs or controlled substance is found.

Even if these incriminating facts or circumstances are present in your situation, that does not mean that it is an open-and-shut case. Depending on the specific circumstances of your case, certain defenses may be available to you. These can include lack of knowledge (as in you did not know you were in possession of drugs or you did not know that the substance was a controlled substance) or possession of a valid prescription for the substances.

Do I Need a Lawyer for Help with Constructive Possession Charges?

Drug offenses can carry hefty punishments. Offenses that involve possession of a controlled substance can lead to a considerable prison term depending on the jurisdiction, the type of substance involved, and the amount.  

If you are facing charges for possession of a controlled substance, it is in your best interests to consult a qualified criminal defense lawyer in your area to help you with your defense. The right lawyer can help you protect your rights, represent you in court, and work with you to achieve the best possible outcome for your case.