Legal Defenses for a Drug Possession Charge

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UPDATED: Jun 29, 2022

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Written By: Jeffrey JohnsonUPDATED: Jun 29, 2022Fact Checked

There are several ways to defend against a charge of drug possession. Unwitting possession, lack of possession, and police abuse of power (e.g. – entrapment), are among the most common defenses. Read on to see if these defenses may be relevant to your particular situation, but don’t represent yourself in a drug case — get a free case evaluation with an experienced criminal attorney.

Unwitting Possession

One type of defense against ​a drug possession charge is an “unwitting possession” defense. In these cases, though the individual may have actual possession of the drugs, they cannot be found legally guilty of possession because they did not know that they were in possession of drugs. For example, if a person gives a package to a messenger service that contains drugs, and the messenger service is unaware that there are drugs in the package, then the messengers cannot be held liable for actual drug possession if they are later caught with them.

Unwitting possession can also be used as a defense in a constructive possession charge. If the police search a person’s apartment, and find drugs that the person was not aware were there, his defense to the constructive possession charge would be an “unwitting “defense.

Lack of Possession

Another common defense to a constructive possession charge is “lack of possession.” It may sound counter-intuitive or even silly for someone arrested for drug possession to use denial as a defense, but “lack of possession” happens all the time. In fact this defense is often used when the “dominion and control” element (showing that the person had the ability/intent to control the illegal drugs) for constructive possession is hard for the prosecution to prove. In, for instance, a house where the homeowner is absent but a renter is present, or a car is pulled over with several people in it, it would be more difficult to accuse just one person of drug possession, whether the homeowner or the renter, or just the driver vs another passenger. Because dominion and control is necessary to prove constructive possession, denial of dominion and control would be, in effect, a “lack of possession” defense.

Police Abuse of Power

Another defense to drug possession is that the police abused their power in discovering the drugs. Planted evidence is perhaps the most popular example, but police abuse of power takes other forms as well. It can mean that there was an illegal search or seizure, that illegal surveillance methods were used, or that unreasonable pressure or threats were made against witnesses or other parties.

Another abuse of police power is entrapment. Entrapment is the inducement of an individual into buying drugs when they would not have normally done so. However, note that it is not an abuse of power for the police to lie when trying to determine if an individual has drugs in their possession. It is a common misconception that the police must tell the truth and identify themselves as police officers (if asked). This means that acting as an undercover agent is a perfectly lawful method for determining if someone is in possession of drugs. Further, if an individual is not induced, but buys drugs from an undercover agent under her own free will, this is also a legal method for a police officer to arrest an individual for drug possession — it is not entrapment.


Attempting your own defense if you have been charged with drug possession is a foolish endeavor. Contact a well-qualified and experienced criminal defense lawyer in your jurisdiction – immediately. The penalties for drug crimes can come with extremely severe consequences for the rest of your life.

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.

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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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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