Can I still be charged for substance not in my possession? 29 Answers as of June 13, 2011

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?

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Clifford Clendenin & O'Hale, LLP
Clifford Clendenin & O'Hale, LLP | Locke T. Clifford
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
Eversole Law, LLC
Eversole Law, LLC | Steven Eversole
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: 4/11/2011
Harris Law Firm
Harris Law Firm | Jennifer C. Robins
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: 3/30/2011
Bloom Legal, LLC
Bloom Legal, LLC | Seth J. Bloom
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: 3/28/2011
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
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: 3/28/2011
    Jackson White, PC
    Jackson White, PC | Jeremy Geigle
    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: 3/28/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    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: 3/28/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    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: 3/25/2011
    Law Office of Cotter C. Conway
    Law Office of Cotter C. Conway | Cotter C. Conway
    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: 3/25/2011
    Law Office of Martin Blank
    Law Office of Martin Blank | Martin E. Blank
    Yes to both questions, depending on the circumstances.
    Answer Applies to: Michigan
    Replied: 3/25/2011
    Ferguson & Ferguson
    Ferguson & Ferguson | Randy W. Ferguson
    It depends if it is in your control. If the drugs are in your car or in your house they can charge you. They will have to prove you knew they were in your car or house. Talk to criminal lawyer on the case or call me. They can request you take a blood test, but you can refuse.
    Answer Applies to: Alabama
    Replied: 3/25/2011
    The Woods Law Firm
    The Woods Law Firm | F.W. Woods Jr.
    Yes they can - say nothing and call a lawyer . If you need a free consultation please call.
    Answer Applies to: South Carolina
    Replied: 3/24/2011
    Mercado & Hartung
    Mercado & Hartung | Stephanie Hartung
    What substance was found? And where? There are two types of possession: actual and constructive. Actual possession means it is actually on your person, whereas constructive possession means that you have dominion or control over the area where the substance was found. There are defense to both types of possession feel free to give me a call so we can discuss the case in more detail if you'd like. The call is free.
    Answer Applies to: Washington
    Replied: 3/24/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    CAN they charge you? Of course. They may think they can convict you. CAN they force you to take a drug test? Of course. They CAN say you consented. CAN people illegally drive drunk and speed on the freeway? Of course. But, there are consequences, intended or not, for every legal or illegal action and possible defenses to every criminal charge. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a search [proper or improper] be used against you, and can you be convicted, and what can you do?

    Raise all possible defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for evidence suppression or other motions, or at trial. Effective plea-bargaining, using those defenses, could possibly keep you out of jail, or at least dramatically reduce it. Go to trial if it can't be resolved with motions or a plea bargain. There is no magic wand to wave and make it all disappear. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain for you, or take it to trial. If serious about doing so, and if this is in SoCal courts, feel free to contact me. Ill be happy to help you use whatever defenses you may have. If you can't afford private counsel, you can apply for the Public Defender.
    Answer Applies to: California
    Replied: 3/24/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    More facts are needed to properly answer your question. However, the elements of drug possession is that you must have been somehow possessing the drug that you are charged with possessing. This can occur in different ways and without more information, no one will be able to give you a proper answer. The police can only make you submit to a drug test if they have a warrant.
    Answer Applies to: Michigan
    Replied: 3/24/2011
    Law Office of James S. Robinson
    Law Office of James S. Robinson | James S. Robinson
    Yes. Possession can be actual or constructive. If you are charged then there are many ways to handle a drug case, depending on the facts. Get a good lawyer.
    Answer Applies to: Alabama
    Replied: 3/24/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    I am not sure what you mean by "not in my possession". If you mean physically at the time you are contacted by the police, that is not determinative of "possession". You possess those things overwhich you have a right to control. When you leave your residence, you still possess all of your clothes even though they are still in closets or dresser drawers. You still possess your car when you leave it in the parking lot. You also possess the drugs you tossed in the bushes when the cops were approaching. Drug test. Who is the law trying to make you take a test? If it is the court that you are appearing in front of because you are a defendant, yes. If it is the cops who stopped you walking down the street, not legally unless you consent. If it is the cop who stopped you for a DUI, yes and no. In California, your right to drive and have a license is dependant upon your implied consent to some things. Onbe of those is that if you are stopped for a DUI, you will take a blood or other test respecting your possible inebriation. If you refuse, DMV can take your priviledge to drive a vehicle.
    Answer Applies to: California
    Replied: 3/24/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    I don't know why you would be charged with that unless they had other evidence that it was yours. So yes, it COULD happen depending on the circumstances. If you are driving you cannot refuse a chemical test. Otherwise it is possible, again depending on the circumstances.
    Answer Applies to: California
    Replied: 3/24/2011
    Leone, Throwe, Teller, & Nagle
    Leone, Throwe, Teller, & Nagle | Adam J. Teller
    There is a concept called "constructive possession." If the state can prove that you exercised control over the substance, even if it was not on your person, you can be convicted of possession. There are some circumstances, such as when a judge imposes a condition of bond, where a criminal defendant can be required to take a drug test (or face revocation of the bond).
    Answer Applies to: Connecticut
    Replied: 3/24/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    To paraphrase (or maybe it's misquote) the late great Waylon Jennings, "How can they get you for possession of something that you've already done?" The answer is, theoretically they can charge you with possession of something not in your possession. It's called "constructive possession." It is different from what we think of as "actual possession," (as in, it's in my hand, my pocket, my pants -whether mine or otherwise). Constructive possession is having the right to control a object, even if you aren't holding it at the moment. It makes sense if you consider the things in your bedroom, they are yours and someone would consider those things yours even if you weren't holding all the objects in your room. You are in constructive possession of those items. The flipside is you have to have knowledge of those things and the state must prove that you have knowledge of those items. In other words, if a friend leaves something in your room and you are unaware of the fact, then although you do technically have constructive possession of that item, you don't know it's there so you can't be convicted of possession since you didn't know you possessed it. The answer to your second question is the police can't force you o take a drug test under most circumstances. I suppose they could apply for a search warrant, but I've never seen a search warrant for urine. If you are on probation, sometimes conditions imposed by the court include submitting to a urine test if requested by a probation officer if a police officer but you can still refuse the test. It would, however, constitute a probation violation.
    Answer Applies to: Oregon
    Replied: 3/24/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    The simple answer to your question is that yes, anything is possible, but without having proof, they may not be able to make it stick. It is very important that you retain an experienced criminal lawyer ASAP to help you! Good luck!
    Answer Applies to: Georgia
    Replied: 3/24/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Yes you could be charged with possession if the item was in the area under your control. No requirement that you submit to a test, but it may amount to additional charges if the matter warrants it., i.e, driving, etc.
    Answer Applies to: Nebraska
    Replied: 3/24/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    I need more information about the facts. Possession can be either direct or constructive. Direct possession means it is on your person. Constructive possession is where you can exercise dominion or control over the substance. A classic example is when the drugs are in a center console of a vehicle. Another example would be if the drugs were found in an area that was exclusive to you like a bedroom. In answer to your second question, a court may order a defendant to submit to drug or alcohol testing pending trial or after conviction. In order to give you a definite answer about the first question, I would need to know the facts because there may be additional issues involved. Please reply to this message or call me so we can discuss specifics.
    Answer Applies to: Washington
    Replied: 3/24/2011
    The Law Offices of Jason Chan
    The Law Offices of Jason Chan | Jason Chan
    You can be charged with a illegal drug not in your immediate possession. Depends on the reason for the drug test.
    Answer Applies to: Massachusetts
    Replied: 3/24/2011
    Law Offices of Scott G. Hilderman
    Law Offices of Scott G. Hilderman | Scott G. Hilderman
    In order to convict you of possession of a controlled substance the government must prove that you had possession of the substance. Possession can be actual, for example in your hand or in your pocket, etc., or it can constructive, that is in a place that one could infer from the circumstances that you exercised dominion and control over the controlled substance, for example in the trunk of your car or a storage unit.

    This is a fact intensive inquiry that a jury will look at all of the circumstances. In most cases you cannot be forced to take a drug test. In all cases you can't be forced to take a drug test without a court order.
    Answer Applies to: Montana
    Replied: 3/24/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    'Possession' is pretty broadly defined, and if you ingested the substance it can be considered 'possession'. Under some circumstances a blood test can be required.
    Answer Applies to: Colorado
    Replied: 3/24/2011
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