One of the many strange things about criminal law is that it’s not illegal to use drugs; it’s just illegal to have them. But what does it mean to “have them”—also known as possession. If you’ve ever received a drug charge for constructive possession, you know that it’s not a simple question.
Most constructive possession cases start the same way: There are several people are in a car that is stopped by police. The police search the car and find drugs in the console. No one wants to claim the drugs, and so everyone gets charged. This is what’s known as constructive possession. Because everyone had access to the drugs, everyone can be charged for possession. If no one possesses the drugs, then everyone possesses them.
(Note: Another common scenario is the one where a gun is in the console. If you’re a felon and cannot possess a firearm, make sure you’re not riding around with a gun. You can also have constructive possession of a firearm.
As a criminal defense lawyer, I see these situations all the time. I agree that it is unfair, but it doesn’t stop a prosecutor from charging you.
The police and the prosecutor both know that a constructive possession case is a weak one. They don’t usually go to trial because juries also think it’s unfair. The main purpose of the charge is to get the other occupants of the vehicle to testify about where the drugs came from.
You will have a good chance of beating the charge if it’s not your car and the drugs or gun was actually in the console. If it’s your car or the items were under your seat or in your portion of the car, it becomes a little more difficult.
If you’ve been charged with constructive possession, you need to hire a criminal defense lawyer immediately. There are problems with constructive possession that a lawyer can use to reduce or eliminate the charge.