You may be charged under federal and state law with drug possession if you have knowledge and control of a controlled substance at the time you are arrested. Therefore, possession may be actual (where the offender physically has the drugs), constructive (where the offender doesn’t have physical possession of the drugs but has it on or around their property), and shared (where the offender has partial control over it with someone else).

You can appreciate that actual, constructive or shared possession of drugs becomes particularly significant if you are charged with possession of drugs found in a car with multiple occupants. The location of the drugs can help shed light on whether you were in possession of the drugs and can be charged accordingly.

As another example, a friend asks you to hold their purse and you are later arrested for possession for the drugs found in their purse. However, it’s not enough that you were holding someone’s purse who has drugs in it. You must have known the drugs were there and intended to take control of the drugs (i.e. share the drugs).

Is Drug Possession a Felony or a Misdemeanor?

Whether you are charged with a felony or a misdemeanor can mean the difference between a citation and jail time. State definitions of a misdemeanor and felony may vary, but generally look at the type of drug involved (marijuana versus crack cocaine), the amount of drug in your possession, and your level of intent.

For example, possessing a small amount of marijuana can establish your intent to use it personally as opposed to distributing it. Possession with the intent to distribute generally carries a higher penalty than possession for personal use and is more likely to be charged as a felony.

What are Some Common Defenses in Drug Possession Cases?

Although states vary in how they prosecute drug cases, there are some traditional defenses to drug charges. Examples include:

  • Illegal search and seizure. These types of cases are some of the most heavily litigated at both the state and federal level, especially when the drugs are found in a home or in a car. The 4th Amendment guarantees a fundamental right to privacy, making unreasonable searches and seizures unlawful.
    • Reasonableness generally overrides this right in drug cases when the police can establish probable cause to perform a search, have a valid warrant beforehand permitting the search or have consent from an authorized person to conduct the search.
    • Reasonableness is determined on the facts and circumstances of the case. For example, a vial of cocaine seized after a police officer sees it in plain sight sitting on the dashboard of a car easily overcomes any defense in a drug case.
      • However, if a police officer, without permission, reaches into a car and pries open a glove compartment box to take out your drugs, you may have a successful argument based on an unlawful search and seizure. Evidence obtained illegally cannot be used at trial against the drug offender.
  • Possession. A person may be charged with a drug crime if they were in actual, shared or constructive possession of a controlled substance. For example, an offender may successfully argue that the joint of marijuana under the driver’s seat found in a car in which they were a passenger belong to someone else if they can show they were not in control of the drugs.
  • Controlled Substance. You may be charged with a drug crime if you have a controlled substance. Therefore, one may argue that the drug laws do not apply because they were not in possession of a controlled substance.
    • Let’s say that the police seize a bag of white substance in a Ziplock bag and charge you with cocaine possession. You argue that the substance is actually baking powder. The harmless nature of the substance can be established through a lab test and that evidence can be used to dismiss the charges against you.
  • Medical Exception. There are states which now allow the use of medicinal marijuana. If the police search your home and find marijuana, you may have a legitimate defense if it is located in a state in which marijuana has been legalized and you have proof of medical authorization to be in possession of it.
  • Good Samaritan Immunity. Many people die every year from drug overdose. Some of those deaths could have been prevented by bystanders who failed to seek medical assistance because they did not want to be arrested. As a result, some states have passed laws that provide immunity or legal protections for persons who seek medical help in connection with a drug overdose.

Do I Need a Lawyer to Help Me Defend a Charge of Drug Possession?

Whether or not you have a valid defense to a drug possession charge can vary across states based on the specific facts and circumstances of your case. While these are the more popular defenses to drug possession, there may be additional defenses carved out by your state. Consider consulting with a drug lawyer so that you can understand what defenses are available to you.