Frequently Asked Questions About Drug Offenses

If you have illegal drugs in your pocket, in your hand, or in a bag or other container you are carrying, you are considered to be in actual possession of the drugs.  However, the law also recognizes another principle called “constructive possession,” which allows suspects to be convicted of drug crimes even if they are not in actual possession of the drugs.  Thus, even if the suspect is across the street from an illicit substance, he may still be charged if the government can prove the drugs were constructively possessed.  

 

There are two legal elements for constructive possession:
 

• First, did the suspect have knowledge of the substance’s nature and character?  In other words, did the person know, or have reason to know, they were in possession of an illegal substance?  They do not need to know the exact type of substance, however. It would not matter, for example, that a suspect thought he possessed heroin but actually possessed cocaine. 
   
• The second element is whether the suspect knowingly exercised dominion and control over the drug.  For this, the court asks whether the suspect could access or do something with the drugs he is accused of constructively possessing.  If he had no authority to use the drugs, move them, or do anything else with them, then the person does not have dominion and control over the drug. 

In deciding whether constructive possession has been proved, all of the circumstances present must be considered.  If the government fails to prove either aspect necessary for constructive possession (i.e., dominion and control or knowledge of the illegal character of the drug), then the individual should be found not guilty.  The good news is that Virginia recognizes that a suspect’s mere presence in an area where drugs are is not enough on its own to prove the suspect is constructively possessing drugs.  This is pretty much where the good news ends, because the suspect’s presence in the area is still a factor in the overall analysis of whether the suspect constructively possessed the drugs.  

 

In addition to the suspect’s presence, the court will consider things like whether the drugs were in plain view of the suspect or whether the suspect would have been able to detect the drugs because of an overwhelming smell or other obvious characteristic.  Courts will also look at the behavior and statements of the individuals.  Furtive movements, like the appearance of something being hidden in the vehicle or thrown out of the vehicle, are often strong circumstantial indicators of knowledge and dominion and control.  A suspect’s admission that they knew the drugs were present is extremely informative and will often seal the deal on the issue of constructive possession.  

 

There are numerous factors other than the ones discussed here that play into the determination of whether a suspect is in constructive possession of a drug.  If you have been charged with a drug possession or distribution charge, but the drugs were not on you, then there may be a number of legal issues with the government’s case.  Our drug offense attorneys are experienced in evaluating and defending such issues and can help you fight your charge.  Give us a call today to see how we can help.

Drug users often carry paraphernalia used to consume drugs.  Marijuana users may have wraps, bowls, bongs, or a host of other devices.  A cocaine user may have a bowl, bill, or straw.  Heroin users may have spoons and needles.  Most drug users also are not the most scrupulous when it comes to cleaning, disinfecting, and making sure there is no drug residue left on their paraphernalia.  So what happens if the police seize your paraphernalia, test the residue, and charge you with a misdemeanor or felony drug possession charge?

You may be thinking, “But it was only residue!  I wouldn’t even be able to get high off that!”  Surely if you cannot use the drug for the intended purpose – getting high – you cannot be charged.  Unfortunately, that is not the case.  

In Virginia and in federal court, that argument is not a good one.  Courts have handily rejected those types of arguments.  If a lab test is performed on the residue, and the residue is returned as a prohibited substance, then the charge would be proper.  However, just because there is residue, does not mean there is a prohibited drug present.

The Virginia legislature has outlawed the possession of specific drugs.  Those drugs are defined by their chemical composition.  This means that if the residue that remains in the paraphernalia or elsewhere does not match, it may be that the government will not be able to move forward with the case and will have to dismiss the drug charge.  

If you have been charged with marijuana possession or another drug charge, contact the attorneys at Greenspun Shapiro PC today to see what can be done.  Our attorneys are familiar with a wide range of drug charges and the legal issues that arise out of such cases.  Let us help you fight your drug charge.