Ever since the “War on Drugs” began back in the 1970s, states across the country have worked to strengthen their drug laws and increase the penalties for a violation of those laws. Nebraska is no exception. A conviction for one of the state’s drug related criminal offenses can have serious short and long-term consequences. If you are currently facing charges for possession of a controlled substance in Nebraska, you need an experienced drug crime lawyer to defend you and your rights. While every case is unique, you may be surprised to find that you have a defense available in your case that could result in avoiding a conviction. If the State’s case against you is based on a constructive possession argument, for example, your drug crime lawyer may have a good shot at getting you acquitted.
Nebraska Law – What Is Illegal?
Nebraska Revised Statute 28-416 governs many of Nebraska’s controlled substance offenses. In pertinent parts, the statute reads as follows:
“Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.” (Emphases added)
“A person knowingly or intentionally possessing a controlled substance, except marijuana or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(25) of Schedule I of section 28-405, unless such substance was obtained directly or pursuant to a medical order issued by a practitioner authorized to prescribe while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony.” (Emphases added)
In both paragraphs, the word “possess” and “possession” are emphasized for a reason. It only makes sense that if you are charged with possession of a controlled substance the State must prove that you possessed the contraband – right? At first glance, that seems like a straightforward issue – either you possessed the controlled substance or you didn’t. In legal terms, however, “possession” is anything but straightforward.
Actual vs. Constructive Possession
In legal terms, possession can be actual or constructive. If you had actual possession of an item, it means you had the item in under your direct physical control. In other words, you had the item on your person. Constructive possession is a term that evolved in the law to explain situation when it was clear that an item belonged to an individual but the item was not found on the individual or in the individual’s immediate physical control. Although there is no universally accepted definition of the term “constructive possession,” the most commonly used definition requires that a defendant have:
- knowledge of the contraband’s presence on or about his/her property and
- the ability to maintain dominion and control over it.
As you can imagine, proving constructive possession is much more difficult for the State than proving actual possession. Therefore, if your possession case involves a constructive possession situation it may provide an avenue of defense that your drug crime lawyer can use. Some common examples of constructive possession scenarios include:
- You were the passenger in a vehicle that was stopped. A search uncovered a baggie of drugs under one of the seats and you were arrested and charged with possession of the drugs.
- You were at a party that was raided by the police. When they entered, drugs were found on a table next to where you were sitting. You were arrested and charged with possession of the drugs.
- You are walking down the street and the police stop you. The police find a baggie with drugs in it close to where you were stopped and they claim you threw it down when you realized you were going to be stopped. You are arrested and charged with possession of the drugs.
In each case, you were not in actual, physical possession of the drugs; however, the State will try and prove that the drugs were yours anyway by making a constructive possession argument. Your drug crime lawyer will argue that the elements of constructive possession have not been proven beyond a reasonable doubt.
If you are facing charges for possession of a controlled substance, it is certainly in your best interest to consult with an experienced Nebraska drug crime lawyer right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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