Can I still be charged for substance not in my possession? - Criminal Law Questions and Answers-

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Can I still be charged for substance not in my possession?

Can I still be charged with possession if the substance isn't in my possession? Also can the law force you to take a drug test?

Clifford Clendenin & O'Hale, LLP
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1. Yes, under the Doctrine of Constructive Possession, one is deemed to be "in possession" of anything that they can readily access, even if it is not technically on their person or immediately under their control. Think of a gun found in a center console of a car. Both the driver and the front seat passenger will be deemed to be in possession of the gun, even though it isn't being touched by either party.
2. Generally speaking no, but if you are on probation, yes.

Answer Applies to: North Carolina
Replied: 6/13/2011

Answer By Steven Eversole
Eversole Law, LLC
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Unfortunately, the answer to both your questions is yes, and yes. You may be charged with possession of a controlled substance or marijuana without actually having that drug in your possession by a doctrine called "Constructive Possession." Constructive Possession means you didn't have the drug on you, but they were in your dominion and control and you knew the drugs were there. The classic example is several people riding in a car together can all be charged with the bag of dope in the trunk. Or a joint lying in the ashtray for that matter. Now good lawyering will eventually resolve this matter in many cases, each person can be charged with possession under these circumstances. And yes, the "law" can require you to take a drug test. You did not really specify in what context you meant this question, but I assume you meant after having been charged with a drug crime. In some counties it is a condition of your bond. In others, drug courts may require testing at any time. Also, if you are convicted you certainly can be required to take random and frequent drug testing as a condition of probation. However, just because you have been charged does not mean you have been convicted. These cases can and are won frequently. I encourage anyone charged with a drug crime to call a skilled and experienced drug crimes lawyer. I handle drug crimes throughout the state of Alabama and would be happy to answer and further questions you may have. I have included a great deal of information on my website and my Alabama Criminal Defense Blog.

Answer Applies to: Alabama
Replied: 4/8/2011

Harris Law Firm
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In Oregon, there are two different types of possession, actual possession and constructive possession. Actual possession is just what it sounds like, the drugs are on your person. Constructive possession means that you have access and the ability to control the substance. If the court or a jury finds you were in actual or constructive possession of drugs, you can be convicted.

Answer Applies to: Oregon
Replied: 3/29/2011

Answer By Seth J. Bloom
Bloom Legal, LLC
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You can be ordered by a court to submit to a drug test. We would need more information in order to assess your first question. The simple answer is no you cannot be charged for possession of a controlled substance if the substance is not in your possession; but the operative condition is the definition of the term possession. It would appear that if you are being charged with possession of a controlled substance which you may not technically consider to have been in your possession, your understanding is likely at odds with a law enforcement agency's definition of the term. If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation to discuss the details of your case in greater depth and determine whether or not we would be able to assist you.

Answer Applies to: Louisiana
Replied: 3/25/2011

Law Office of Phillip Weiser
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Under some circumstances a person can be charged with possession of an item which is not in their physical possession. This is called "constructive possession". The statutes are usually worded in such a way as to cover physical possession as well as "having control over" which is constructive possession. You have a right to refuse drug testing, but that refusal can have negative consequences.

Answer Applies to: Kansas
Replied: 3/25/2011

Answer By Jeremy Geigle
Jackson White, PC
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First time possession in Arizona is a serious felony offense. Anytime drugs are found in a vehicle or an apartment, everyone present is a potential defendant for the charge of possession. You may get charged because someone there told the police that you brought the drugs with you. Or you may be physically closest to the drugs. The prosecutor must prove that you knowingly possessed an unlawful substance. In order to prove knowingly, he must show at a minimum some nexus between you and the drugs. Possession cases in Arizona are usually filled with search and seizure issues which can greatly affect the outcome of your case.

Answer Applies to: Arizona
Replied: 3/25/2011

Answer By John Carney
Law Offices of John Carney
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Under New York State law you can be charged for "constructive possession " of anything that you can be said to exercise "dominion and control over" which is illegal to possess if you knowingly possess it and illegally possess it as defined by the statute pertaining to that item. Therefore anyone in a house or car can be charged with possession of contraband found in the housesor vehicle unless it was "actually" possessed by one of the people in the house or car. That would mean that person had it in their pocket or hand or was seen throwing it to the ground by the officer. In that case the officer should only charge the person who actually possessed the item. You can be forced to take a blood test if you were operating a vehicle. They can ask for a breath test for alcohol, and if you refuse, they can suspend your license for six months and fine you. If they believe you drove under the influence of drugs they can get a blood sample, with or without a warrant. Your lawyer can argue the legality of any such procedure later, but it is best to call your lawyer before you talk to the police, submit to any test, or allow the police to draw blood. They cannot just test your blood or urine unless you were driving or unless they have a court order. If you appear in court or at a parole or probation under the influence they may be able to get a blood or urine test, but an officer cannot test you just because you are in the area of drugs and he wants to see if there are any in your system.

Answer Applies to: New York
Replied: 3/25/2011

Answer By Roy L. Reeves
Reeves Law Firm, P.C.
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POSSESSION as that term is used in the criminal context means "actual care, custody or control" of the contraband. Accordingly, it is impossible to answer your question with the available information.

Now, for a more practical matter, yes, you can be charged, the question is whether or not the DA can make the charge stick. If the drugs were in your car for example, that is enough evidence for the DA to charge you, but merely being near drugs is not enough to convict you even if they are in your car - keep in mind, the more people in the car, the location in the car, who has access to the care, etc. are all important.

This of course is semantic, if you are near 25 kilos of uncut cocaine, that is a little different than being near a dime bag - to put it a little differently, the size, appearance, location/proximity, and other factors are taken into consideration in determining if you had care, custody or control. The dicta in one case states that in finding there was no care, custody or control, the defendant made "no furtive glances" and he made no attempt to secret or hide the drugs, therefore the inference is that he did not know they were present. Fertile ground for working up a defense, but it is only good if the defendant is willing to let his attorney do a job and take a chance. That is why so many times a DA will make a plea offer that states if refused today, it goes away. The system depends on a certain number of people who may have a good defense giving up and taking the plea. In order to accomplish this, there must be some threat or fear of loss that motivates the defendant to not take any chance.

Consider for one moment, if every criminal defendant set his/her case for trial and fought like crazy to make a DA work harder, that DA would be a little more selective in what cases he or she chooses to file. Whereas, if you are familiar with the three toughest counties in the State (hint, all three are bedroom communities to large cities where the affluent live and commute into the said cities) these counties have a reputation as being extremely tough on crime. They can do so because the juries in this counties are easily influenced into the "that will never be me" mentality and therefore they hand out strict punishments. The DA then gets advantage because word spreads that the juries hang everyone, the DA has less work to do, more defendants plea out of fear, the more that plea without making the DA work, the tougher the DA becomes until he or she will simply file anything brought in by a cop. If you are in Collin County let me know, I would like to get more details and facts from you.

Answer Applies to: Texas
Replied: 3/24/2011

Law Office of Cotter C. Conway
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An individual can be charged with possession of controlled substance even though they are not in actual possession of the controlled substance. If you are deemed to be in constructive possession (being in a position to exercise dominion and control over the controlled substance even though it is not in your actual possession), then you can be charged with possession of a controlled substance. Generally, law enforcement cannot force an individual to take a drug test without consent or a search warrant. However, in the case of operating a motor vehicle, it is implied that you have consented to a chemical test and law enforcement can force you to take a drug test.

Answer Applies to: Nevada
Replied: 3/24/2011

Answer By Martin E. Blank
Law Office of Martin Blank
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Yes to both questions, depending on the circumstances.

Answer Applies to: Michigan
Replied: 3/24/2011

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