Constructive Possession of a Controlled Substance

The term constructive possession of a controlled substance refers to when a person is said to possess a controlled substance, but the drug is not physically in their control or located within them. Before someone is charged for constructive possession, certain factors must be present, such as knowing the controlled substance's location and being able to maintain dominion and control over them or the area in which they are found. Learn more about constructive possession of a controlled substance with our legal help tool below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 4, 2021

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The least you should know…

  • Constructive possession of a controlled substance is a drug possession charge where the person didn’t physically have possession of the drugs but knew about the presence of drugs and had dominion and control over them.
  • A criminal charge based on constructive possession is more difficult to prove than when the defendant is in actual possession of the drugs because prosecutors have to prove the elements of knowledge and dominion and control.
  • Mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession.

Did you know you can be charged with possessing drugs that are not actually in your possession? If an individual has knowledge of drugs discovered in a certain location or was aware of the drug’s presence based on the evidence, they may be convicted of constructive possession of a controlled substance if the prosecutor can show that they also had dominion and control over the drugs.

How do you prove constructive possession?

Even though constructive possession of drugs is much harder to prove than actual possession because drugs are not found directly on the person, if you’re facing constructive possession charges, you’ll need a criminal lawyer who knows legal defenses for drug possession charges and how to beat constructive possession.

To begin your search for a criminal defense attorney you can enter your ZIP code in our search tool. A criminal defense attorney with experience defending constructive possession of drug cases will be extremely helpful in resolving constructive possession cases and advise you on how to beat a constructive possession charge.

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The Meaning of Constructive Possession

There are two types of possession: constructive possession and actual possession. Actual possession is obvious, so you’re probably asking:

What is the meaning of constructive possession?

Constructive possession is a legal fiction that allows prosecutors to charge the defendant with a drug or weapons crime even though the guns or drugs were not found on the defendant. Furthermore, a person is charged with the illegal possession of something that wasn’t in his or her actual possession. The difference between actual and constructive possession is that for actual possession, the police find the contraband on a person, in the hand, in clothes, or elsewhere on the body.

    Constructive possession of a controlled substance means the person charged didn’t physically have possession of drugs, but knew about the presence of drugs, and had dominion and control over them. Depending on the type and amount of the drug found, possession of a controlled substance could be a high-class felony.

The charge of constructive possession of a firearm works in a similar way. A charge of constructive possession of a firearm by a convicted felon should be taken seriously. Because it is a federal crime for felons to possess a firearm, under the doctrine of “constructive possession,” felons can be convicted based on the discovery of a firearm in their home or car.

Proving the Elements of Constructive Possession

While the elements of constructive possession can vary by jurisdiction, according to constructive possession case law the factors that are important for establishing constructive possession are generally a knowledge element, as well as a dominion and control element.

Proving Knowledge

To prove knowledge, a prosecutor usually must show that the individual knew that the drugs were located in or around where they were discovered and that the individual also knew, or should have known, that the drugs were illegal.

Proving Dominion and Control

To prove dominion and control, a prosecutor must show that the individual had the ability and the intention to control the drugs. This means that mere proximity to illegal drugs, by itself, is not enough to show that an individual had constructive possession. Instead, the drugs need to be found among the defendant’s personal items.

However, if a person resides alone or has sole access to a car, any controlled substance found in the residence or the vehicle would be assumed to belong to that person to some extent. The inference that the person had both knowledge and dominion and control over drugs found in their home or car would be logical.

If it seems like constructive possession is hard to prove, you’re right. Although in some cases, prosecutors can use the defendant’s or other witness statements, the elements of knowledge and dominion and control are often proven by indirect evidence. A constructive possession example would be when the individual has another person or people hold and/or distribute the drugs on the individual’s behalf or at his direction.

Joint Dominion and Control

There can be joint dominion and control over illegal drugs. If all parties that are found to have both knowledge and dominion and control over them can be convicted of constructive possession. Joint dominion and control can be challenging to prove in cases where there is shared property.

For example, suppose you share an apartment with three other roommates, and a small bag of cocaine is found in the kitchen drawer. Because you all have access to the kitchen, knowledge of the drugs may be easy to prove, but sole dominion and control will be harder to show since the kitchen is shared property.

To show that all parties had constructive possession over the cocaine, the prosecutor must prove each element for each person that each person had knowledge of the drugs, and that each person had the intent and ability to control the whereabouts of the substance.

Constructive Possession Examples

Below you can find some examples of constructive possession:

  • A police officer finds drugs in your car after being pulled over
  • A police officer finds drugs under the chair you are sitting on
  • You are pulled over, and drugs are found on one of your passengers
  • Drugs are found on your partner or spouse in your house

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Can I be charged with possession if I had nothing on me?

If drugs are found in your house or car, it still depends whether you will be charged for constructive possession of a controlled substance. Proximity may not always be enough to prove constructive possession.

Exclusive Occupancy

Whether a person is responsible will depend on the facts and evidence. If you are the only occupant of the house or car where a controlled substance is found, your exclusive occupancy is often enough to prove that you had control and knowledge of its presence.

Non-Exclusive Occupancy

If you are not the only occupant of the house or car, it can be more difficult to prove whether you possess the controlled substance. So, proximity may not be enough to prove possession. There must be additional evidence in cases when there is more than one occupant to prove both knowledge and control.

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Defenses to Drug Charges Based on Lack of Possession

It goes without saying that the best way to beat constructive possession charges, or better still to avoid a constructive possession charge, is to steer clear of drugs. Also, don’t allow others to store drugs and other contraband in your house or car.

 In a criminal prosecution for unlawful possession of contraband, the following must be proved beyond a reasonable doubt:

  1. That defendant was aware of the presence and character of the contraband
  2. That the contraband was subject to defendant’s dominion and control

Prosecutors need to prove possession of a controlled substance in order to convict a defendant of other drug-related crimes, like possession with intent to distribute, drug manufacturing, and drug trafficking. That means drug charges based on constructive possession, rather than actual physical possession, provide an attractive defense for drug-related charges.

A weak constructive possession charge can be used to beat a drug possession charge. If the prosecutor can’t show that the defendant possessed the drugs, the prosecutor also won’t be able to prove that the defendant was in possession of the drugs with the intent to distribute them.

Consequences for Constructive Possession of Drugs Conviction

The punishment for constructive possession in Virginia, Texas, Nebraska, and most other states is the same as the penalties for actual drug possession Maximum penalties go up to a lifetime in prison and hundreds of thousands of dollars in fines. Minimum sentences can also include time in jail in addition to fines. Some states also require a mandatory loss of driver’s license for a certain period of time.

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Even though the charge of constructive possession is much harder to prove than actual possession, if you’ve been charged with possession of a controlled substance based on this constructed legal fiction, you should take it seriously.  The legal consequences for being convicted include hefty criminal fines, jail time, and sometimes even loss of your driver’s license.

Hiring a criminal defense lawyer experienced in defending drug possession cases can help you beat a drug possession charge. If you need to find a criminal defense attorney, start your search with your ZIP code in our search tool below.

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