If a driver was unaware of narcotics in their car, do they have a chance against the possession charge? 51 Answers as of February 29, 2012

My step daughter was charged with possession because police found a loaded needle with narcotics that she said she knew nothing about in the car console when she was pulled over for traffic ticket warrant on the plates. She is not the owner of the car. She is jobless but does not want to leave it to the public defender. Do you have any recommendations about what we can do?

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Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
She clearly has a defense if she did not know the drugs were present. The problem is convincing the prosecutor. She needs a good attorney, public defender or otherwise. Then the attorney may be able to convince the DA to dismiss. If he doesn't she will have the choice of going to trial or compromising her principles and pleading no contest and get a drug program which is she completes successfully will lead to the dismissal of the charges later.
Answer Applies to: California
Replied: 2/11/2011
Law Offices of Scott G. Hilderman
Law Offices of Scott G. Hilderman | Scott G. Hilderman
Yes; the legal doctrine is unwitting possession. They would be required to prove beyond a reasonable doubt that she had knowledge of the needle in her car. This is a common defense and will depend on the circumstantial evidence. The fact that she is not the owner of the car is a fact which will weigh heavily in her favor. You need to consult with an attorney.
Answer Applies to: Montana
Replied: 12/31/2010
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
A defense to the possession charge could be that there was no knowledge of the drugs. An essential element of the crime is knowledge, both of the drugs being present and that the possession of them was illegal. A public defender can assert all defenses just as a paid lawyer could do. If the attorney just doesn't want to work for you, then you must ask the Judge for a new attorney, and you must give specific reasons for doing so. Or, you could hire a lawyer of your choice to replace the court appointed lawyer.
Answer Applies to: Kansas
Replied: 12/23/2010
William C. Gosnell, Attorney at Law
William C. Gosnell, Attorney at Law | William C. Gosnell
Being in close proximity to the drugs does not prove possession. Hire a top notch criminal defense lawyer.
Answer Applies to: Tennessee
Replied: 12/21/2010
Law Office of Matt Potempa, PLLC
Law Office of Matt Potempa, PLLC | Matt Potempa
First, there are many exceptional criminal lawyers in the public defender's office. Don't make the assumption PD's are not competent lawyers. In fact, many of them have better trial skills and working relationships with the District Attorneys than many private attorneys. Responding to your question, your daughter certainly may have a defense that she did not "possess" the drugs, or even know about them. The state must prove criminal intent. Your attorney and the prosecutor may present evidence on both sides. She may have a jury decide if she's telling the truth.
Answer Applies to: Tennessee
Replied: 12/20/2010
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    In the State of Alabama, in order for the State to find someone guilty of possession of a controlled substance there must be proof that the person charged with the offense either knew or should have known about the substance found. There are many factors that can be considered in making this determination such as are there any prior arrests for drug offenses, is there a history of drug usage, can this person pass a drug test, including a hair follicle test that can show a history of drug use for approximately six (6) months). Is there an explanation as to how the drugs were left in the car and who left them there.

    In the event your daughter cannot afford to hire an attorney the court will likely considering appointing an attorney to represent her. if she does not want an appointed attorney she can hire an attorney of her own choosing to represent her.
    Answer Applies to: Alabama
    Replied: 12/19/2010
    Karmali Law Office, PLLC
    Karmali Law Office, PLLC | Hussein Karmali
    In a circumstance like this, the prevailing defense would be unwitting possession. Essentially the allegation is directed toward the non-owner of the vehicle, and as such, in my mind, the owner of the car is in actual and constructive possession of the items in the car. That being said, why would the officer search a vehicle during the course of a stop on a traffic ticket?
    Answer Applies to: Washington
    Replied: 12/18/2010
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    The case is definitely defensible, in a number of ways. The criteria for conviction in a possession charge are 1) did the defendant unlawfully possess a controlled substance, 2) did the defendant know or have reason to know of the existence of the narcotic (or exercise 'dominion and control' over the area in which it was found, 3) did the defendant know of its nature or character as a controlled substance, 4) is the substance classified as a 'controlled substance', and 5) was it a usable amount.
    Answer Applies to: California
    Replied: 12/18/2010
    Law Offices of John J. Lutgens
    Law Offices of John J. Lutgens | John Lutgens
    Knowledge is typically an element of the offense of possession. However, it may depend upon the jurisdiction (State) in which your daughter is charged.
    Answer Applies to: Washington
    Replied: 12/18/2010
    Law Office of Raymond J. Dague, PLLC
    Law Office of Raymond J. Dague, PLLC | Raymond J. Dague
    This is a fight that she can win. There is no presumption in the law that the non-owner driver of the car knows about any illegal substances in the car, so she has a good defense. Some of the public defenders can do a good job, but others might not. These charges can be defended on many levels, but it is a serious matter and should not be left to chance.
    Answer Applies to: New York
    Replied: 12/18/2010
    Law Office of Michael Bialys THE DUI MAN
    Law Office of Michael Bialys THE DUI MAN | Michael Bialys
    I would want to have the evidence tested for her fingerprints in order to help show that it wasn't hers, but she will likely need private counsel to fight it
    Answer Applies to: California
    Replied: 2/29/2012
    Law Office of John Schum, LLC
    Law Office of John Schum, LLC | John Schum
    It is certainly possible to win this type of case depending on the facts. The facts will really drive the outcome. The PDs provide good representation for people who are guilty and are looking for a good plea agreement. This is not what your daughter needs.

    I really need to sit down with you and your daughter to get all the information possible. With the information I can better predict how this will go.

    Please call me to set up a free consultation. I look forward to helping get your family through this. You need someone to take the time to do a thorough investigation and determine the facts so the truth comes out and your daughter is exonerated. I pride myself on being the best attorney for this type of situation.
    Answer Applies to: Hawaii
    Replied: 12/17/2010
    The Law Office of Eric R. Chandler, P.C., L.L.O.
    The Law Office of Eric R. Chandler, P.C., L.L.O. | Eric R. Chandler
    It depends on the evidence, why the car was stopped by law enforcement, why the car was searched, etc. As far as hiring a private lawyermost people would rather retain private counsel; however, if she has no access to money she may not have a choice.
    Answer Applies to: Nebraska
    Replied: 12/17/2010
    Law Office of Elmer H.
    Law Office of Elmer H. | Elmer H.
    Yes there are things that can be done. None of what I am about to suggest replaces the need to obtain the services of a dedicated and experienced criminal defense attorney, and understanding some may have different opinions, here is what I suggest:

    1. Have a very serious heart-to-heart to determine whether she has been involved in the use of drugs or those who she knows has been using them.

    2. If, and only if, she absolutely denies any such use, determine if she is willing to submit to a private blood test which can be arranged by such a lawyer and where the results will be reported only to this attorney.

    3. The attorney will know what to do with this evidence and will advise accordingly.

    4. If she does not want to submit to such a test, then the lawyer will advise, again accordingly.

    5. The possibilities of suppressing any such evidence can hardly be determined without being exposed to the evidence the state seeks to admit.
    Answer Applies to: Georgia
    Replied: 12/17/2010
    Law Offices of Ryan P. Murphy
    Law Offices of Ryan P. Murphy | Ryan P. Murphy
    Generally, the best option is to enter some type of conditional plea that she can withdraw after graduating from drug court.

    The pubic defender might not have the financial resources to get the job done. A case like hers depends on outside money to start the in-patient treatment process, and get her out of jail if necessary. A private attorney can help the family regarding what programs the judge likes, and most importantly, the ones that are disfavored in that particular courtroom.
    Answer Applies to: California
    Replied: 12/17/2010
    Tomas M. Flores, Esq.
    Tomas M. Flores, Esq. | Tomas M. Flores
    Intent and knowledge are key elements to possession.

    How and why did the police officer search the car on a traffic stop? And whose car was it? The search and/or arrest could be illegal depending on the facts.

    I would recommend consulting with an attorney as soon as you can. I'm available to talk over the weekend if you'd like to discuss this case.
    Answer Applies to: California
    Replied: 12/17/2010
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    She needs an attorney to defend her. Public defenders are good attorneys-just have too much of a caseload. Unless you can hire a private attorney-she really has no choice.
    Answer Applies to: California
    Replied: 12/17/2010
    Jackson White, PC
    Jackson White, PC | Jeremy Geigle
    If drugs are found in a vehicle you are either driving or a passenger in, you may be in a lot of trouble - even if the drugs aren't yours. Arizona law requires that a prosecutor prove that you knowingly possessed a usable amount of the illegal drug. One of the ways to show that you knew about it and actually possessed it is to show some nexus between you and the drugs founds. For example, if you admit to the officer that you know there are drugs under the back seat. Or if drugs are found in a back pack that also contains objects or papers that identify the back pack as yours. Fingerprints can also be used to create that nexus when the drugs are found somewhere other than on your person. If you did not own the vehicle and were not made aware of the drugs inside the vehicle, it may be difficult for a prosecutor to create that nexus between you and drugs.
    Answer Applies to: Arizona
    Replied: 12/13/2010
    Law Office of Alton William Wiley, Jr.
    Law Office of Alton William Wiley, Jr. | Alton William Wiley, Jr.
    It may have been an illegal search. If you wish to call me to discuss the matter.
    Answer Applies to: Rhode Island
    Replied: 12/2/2010
    Law Office of Bill Montecucco
    Law Office of Bill Montecucco | Bill Montecucco
    The prosecutor has the burden of proving every element of possession beyond a reasonable doubt. That is the highest standard in any of our court's system. A defendant has no burden of proving any lack of any element, unless the prosecutor has met this burden. The elements of the charge of possession in Washington are that a person possessed a controlled substance and that the act occurred within the State of Washington. Possession means having a substance in one's custody or control.

    If the prosecutor meets this burden, it is a valid defense if the defendant can prove that the possession was unwitting by a preponderance of the evidence (slightly more likely than not standard). State v. Balzer, 91 Wn.App. 44, 67, 954 P.2d 931 (1998). Many court appointed attorneys have extremely high case loads and may receive a small flat fee for representation of each court appointed client. If she is able to afford a decent defense, I would encourage her to hire a decent privately retained counsel. Please give me a call if you have additional questions.
    Answer Applies to: Washington
    Replied: 12/2/2010
    Lacy Fields, Attorney at Law, LLC
    Lacy Fields, Attorney at Law, LLC | Lacy Fields
    Absolutely she has a chance!

    In Missouri, if you don't know anything about the drugs, you cannot truly possess them because the crime requires intent. However, there is a doctrine called "constructive possession". It comes into play when the drugs are not physically on your person, but rather are found in your belongings. So if they found drugs in your backpack or purse, or an area of the house in which only you have access, you could be charged with possession. However, if it is not her car and was not somewhere that she would have seen it, those are strong arguments against the crimes. The real question is who would leave "loaded rigs" in the car? Usually the rigs are loaded just before use, so that would be the prosecutor's argument. You guys have a fighting chance, so you should really consult an attorney.
    Answer Applies to: Missouri
    Replied: 12/1/2010
    The Law Office of B. Elaine Jones
    The Law Office of B. Elaine Jones | B. Elaine Jones
    There are some legal arguments that can be made such as potentially a constructive possession argument. I would need to know a few more facts like: Does she car pool or does anyone else ride with her. However, without proper legal representation, this argument may never be made. The fact that she does not own the car also helps her case. Please contact LawQA to get my contact information if you wish to speak further with me or retain my services.
    Answer Applies to: Florida
    Replied: 11/30/2010
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    She should definitely hire an attorney or use a public defender as this is a potentially serious matter.
    Answer Applies to: Michigan
    Replied: 11/30/2010
    Hedges & Tumposky
    Hedges & Tumposky | Michael Tumposky
    She may want to consider hiring an attorney.
    Answer Applies to: Massachusetts
    Replied: 11/30/2010
    Smith & John
    Smith & John | Kenneth Craig Smith, Jr.
    Yes, it is defensible. The prosecution must show that she had knowledge of the item in the vehicle which may be difficult for them since the vehicle was not hers.
    Answer Applies to: Louisiana
    Replied: 11/30/2010
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Whether a person had actual or constructive possession of illegal contraband is always a valid challenge in a drug possession case. The facts would appear to be favorable if the vehicle where the contraband was found was not the vehicle owned by the person charged AND the contraband was not in plain view.
    Answer Applies to: Minnesota
    Replied: 11/30/2010
    The Poster Law Firm, PLLC
    The Poster Law Firm, PLLC | Rick D Poster
    Generally speaking, he or she who controls the car, controls the contents. There are exceptions.
    Answer Applies to: Arizona
    Replied: 11/30/2010
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    There are two options, one is to get a public defender and keep in mind, PDs get a bad rap for no reason. In many counties in Texas, in fact, in most counties, the PDs are private lawyers who take cases for discounted fees paid by the County. We have to get "other paying work" to pay our bills, but we take the "court appointed" work for the nominal pay since it does pay something, it gives us face time with the judges, and it does establish a network of clients (the ultimate client referral source). The second option is to hire a lawyer of your choosing.

    Possession BTW means "actual custody" or facts and circumstances such that it establishes "Care, custody, and/or control" over the contraband. Possession is a "specific intent" crime. Ignore the warnings at the airport for a moment, you know the ones that say "Advise TSA if anyone has put something in your bag without your knowledge". Possession is the intentional act of exercising care, custody and control over an object. That necessarily means you have to know it is there. Accordingly, your daughter has a valid defense.
    Answer Applies to: Texas
    Replied: 11/30/2010
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I would encourage you to retain an experienced criminal defense attorney in your community as soon as possible. He or she can thoroughly discuss all the facts with you, along with your rights, possible defenses, and best options. Good luck!
    Answer Applies to: Georgia
    Replied: 11/30/2010
    The Law Office of Matt A. Stockdale, PLLC
    The Law Office of Matt A. Stockdale, PLLC | Matt A. Stockdale
    If a person does not know about the presence of drugs, this would be a defense to the charge. Your step-daughter needs to contact an attorney about this case.
    Answer Applies to: North Carolina
    Replied: 11/30/2010
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    A chance? Of course. But unless she is experienced and knowledgeable about the law, criminal procedure, court practice, and can effectively represent herself up against a DA trying to convict and jail her, she needs to hire an attorney. If serious about doing so, feel free to contact me. Ill be happy to help her use whatever defenses she may have. If she can't afford
    private counsel, apply for the Public Defender. While you may believe her story, and it may be true, the DA and jury will not give her the same parental courtesy. No amount of free 'tips and hints' from here or anywhere else are going to help her in that defense, other than the advice
    to exercise the 5th Amendment right and do NOT talk to anyone except your attorney about your case.
    Answer Applies to: California
    Replied: 11/29/2010
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    These are really tough cases as the cops (and often juries) will think she has made up a clever story to beat the case Will the car owner come forward and admit the spike is hers or give up the name of the person who left it in her car.Does your daughter have any prior drug cases as if she does she is wasting her time - no DA or Judge will believe her.

    Those who cannot afford a private lawyer get the public defender If you can get up enough money to hire a private lawyer let me know what county this is in. If in the Bay Area I might be able to help you. If in another county I might be able to recommend a good lawyer there. The public defender system has some good lawyers, but it also has a lot of burn outs waiting for the retirement pension. So the question comes down to whether you want to help her financially.
    Answer Applies to: California
    Replied: 11/29/2010
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Leave it to the public defender (who may just do a fairly decent job of representing her).
    Answer Applies to: Virginia
    Replied: 11/29/2010
    Law Office of Cotter C. Conway
    Law Office of Cotter C. Conway | Cotter C. Conway
    A person must not knowingly possess a controlled substance. If a person was unaware of the controlled substance found in a car, then that person should not be held accountable for possession of a controlled substance. Many factors are considered in determining whether a person knowingly possessed a controlled substance - the fact that she was not the owner of the car might negate her knowledge but the presence of the needle in the center console may weigh against her lack of knowledge. Contact me for a free consultation.
    Answer Applies to: Nevada
    Replied: 11/29/2010
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    Having no knowledge that drugs are in the car is a complete defense.
    Answer Applies to: California
    Replied: 11/29/2010
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    If she is the sole occupant of the vehicle, the prosecutor will argue to a jury that she is in constructive possession of everything in the vehicle. Her attorney will have to present enough evidence of the type of person that she is to argue that she did not know about any drugs (i.e. student, no prior criminal history, in the vehicle a short period of time, use of vehicle to gain employment, etc.) It will come down to the skill of the defense attorney, but it is a winable case.
    Answer Applies to: Georgia
    Replied: 11/29/2010
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    You really do not want to represent yourself as criminal defense is much too complicated and the consequences are far too great to go it alone. While public defenders may get a bad rap, many of them are just as good, if not better, than privately retained counsel. As a matter of fact, almost all attorneys that take court-appointed cases also do privately retained criminal cases, myself included.

    With that being said, the elements of a possession charge is that she would have to have knowingly possessed the narcotics. But you may have trouble convincing a judge or jury that she did not know what was in the console of the car she was driving. However, if she did not own the vehicle, that might make her argument stronger. Also, I would have to know more facts and see the police report before I could give a more accurate answer because I would need to know the circumstances of the stop and how the officer came to search the console. There may be some issues to raise in motions which could possibly get the evidence suppressed or the case even dismissed. That is why you need to consult with an experienced criminal attorney right away.

    Feel free to give us a call for a free, no obligation consultation. Best of everything to you and your step daughter.
    Answer Applies to: Michigan
    Replied: 11/29/2010
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Hire a lawyer for her, a lawyer who will personally represent her from beginning to end. Narcotic charges can often be negotiated down or even dismissed by statute, because she may be eligible for certain drug programs.
    Answer Applies to: California
    Replied: 11/29/2010
    The Connelly Firm P.C.
    The Connelly Firm P.C. | Thomas Connelly
    Unfortunately, your daughter can be charged with "constructive" possession of narcotics and probably paraphernalia. A good attorney may be able to negotiate a plea to the tickets only (dismissal of the drug charges) by arguing that there is a suppression issue (ie the police had no right to stop her) and/or that the State cannot prove beyond reasonable doubt that your daughter knew that the drugs were in the car (the "knowledge" element of proof required in any charge above summary offenses). Your daughter's attorney should figure out the "chain of custody" for the vehicle prior to your daughter's occupancy, to offer possible alternative explanations for why the drugs were there. I had a similar case, which ultimately was dismissed on other grounds, where our investigation indicated that a user of the vehicle within which the paraphernalia (needles) were found, was a diabetic, thus presenting a plausible explanation for the alleged contraband's presence in the vehicle. Good luck.
    Answer Applies to: Pennsylvania
    Replied: 11/29/2010
    LT Pepper Law
    LT Pepper Law | Luke T. Pepper
    There is definitely a basis to challenge it. A public defender might have too much of a workload to handle something like this effectively. We can recommend a good lawyer based on your geographic area.
    Answer Applies to: Pennsylvania
    Replied: 11/29/2010
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    The driver of the car can be charged on a theory of constructive possession, but in this case she could argue that the search was illegal and the drugs were not in plain view. There is a good chance that a skilled attorney could have the drugs suppressed and the charges dismissed, or negotiate a very favorable plea, as the client chooses. It seems the DA has a very weak case unless she admitted knowledge of the drugs, Feel free to call me for a free consultation.
    Answer Applies to: New York
    Replied: 11/29/2010
    Law Offices of Jack N. Whitaker
    Law Offices of Jack N. Whitaker | Jack Nathan Whitaker
    Lack of knowledge is a defense but a tough sale to the DA and/or a jury.Unfortunately your choices are the public defender or hiring a private attorney.
    Answer Applies to: California
    Replied: 11/29/2010
    The Law Offices of Jason Chan
    The Law Offices of Jason Chan | Jason Chan
    It is difficult to say before reading the police report. Your daughter may have a valid defense, but that is difficult to assess without reading the report.
    Answer Applies to: Massachusetts
    Replied: 11/29/2010
    Expert Bronx Criminal Lawyers
    Expert Bronx Criminal Lawyers | Alexander Sanchez
    Yes, your daughter does have a chance. In New York, if you are in a car with drugs-even if it is not your car, are a passenger, and just got in for short lift, you can be charged with possession of drugs, even if the drugs are found in the trunk, under a greasy wheel. This is known as the "presumption law" - that is you are presumbed to know that drugs are in the car. But, this is a "rebuttable presumption". You are allowed to show that the presumption should not apply, and this is done by denying you have any connection to the drugs at trial. This shifts the burden to the prosecutor to prove you did know drugs were in the car. How can the prosecutor prove this depends on the individual facts of the case. As far as going with the public defender, your instincts are justified.
    Answer Applies to: New York
    Replied: 11/29/2010
    The English Law Firm
    The English Law Firm | Robert English
    There is always a chance. There is no guarantee of any specific outcome, however. Call my office if you can and I will work with you on the rates.
    Answer Applies to: California
    Replied: 11/29/2010
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    The D.A. must prove she knew or should have known the contraband was there. Having said that, if she was driving and the car was hers, then she better have some logical explanation for how it got there. Usually the police will ask questions at the scene. I would like to see the police report before deciding on a defense strategy. For more info or to retain our services call
    Answer Applies to: California
    Replied: 11/29/2010
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    It depends a lot on the definition of possession in the state you are in. Possession is often defined as having control over something and can be inferred from the circumstances (no one else in car, etc.). If you do not want to use the public defender you should hire a lawyer soon for your daughter so there is time to do a proper investigation, etc.
    Answer Applies to: Colorado
    Replied: 11/29/2010
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