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...

Full Bio →

Written by

UPDATED: Jul 24, 2020

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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, 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.

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 drug 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 these sorts of cases.

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. 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.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption

Proving the Elements of Constructive Possession

So, how do you prove 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.

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.

Defenses to Drug Charges Based on Lack of Possession

It goes without saying that the best way to beat a constructive possession charge, 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. 

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 jail time in addition to fines. Some states also require a mandatory loss of driver’s license for a certain period of time.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption

Get Help

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.

Hiring a criminal 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.