Being convicted of any criminal offense can have far-reaching negative consequences; however, being convicted of drug related criminal offense often comes with even farther reaching consequences. Thanks in large part to the “War on Drugs” that has been raging in the United States for the last four decades, criminal convictions that are related to drugs tend to have a particularly negative stigma attached to them. Employers often won’t even consider you for employment. You can lose your eligibility for state and federal assistance programs such as Food Stamps and even be disqualified for federal student loans as a result of certain drug related convictions. If you have recently been arrested for a drug offense, the important thing to remember is that being arrested does not equate to being convicted. In fact, there are a number of drug defenses that could apply to your situation. For example, if the drugs were in a vehicle at the time of your arrest, the State of Nebraska will have to rely on the legal concept known as “constructive possession” to secure a conviction. This may provide your Nebraska criminal defense attorney the opening he/she needs to prevent a conviction.
Why Were You Charged at All?
Although the facts and circumstances of every arrest are unique, there are common fact patterns. If you were arrested because of drugs found in a vehicle, the odds are very good that you were an occupant of a vehicle that was pulled over for a minor traffic violation. The original stop could have been a pretextual stop, meaning the officer used a minor traffic violation as a reason to stop you because the officer suspected you were committing a more serious crime, or it could have truly been just a routine traffic stop. At some point during the stop the officer began to suspect that there were drugs in the vehicle. Eventually, those drugs were found and you were arrested, along with anyone else in the vehicle. Why were you arrested? Why was everyone arrested instead of just one person? The reason is that when there is more than one occupant of a vehicle in which contraband is located, the police officers almost always arrest everyone in the vehicle unless someone comes forward and admits the drugs are his/hers. The reason for this is simple – when drugs are found stuffed under the seat of a vehicle, pushed down inside a pocket in a seat, or anywhere else where anyone in the vehicle could, in theory, have had access to, the police tend to arrest everyone and let the prosecuting attorney, the judge, or a jury sort it out.
What Is Constructive Possession?
In order for you to be convicted of possession of a controlled substance (drugs), the State of Nebraska, through the prosecuting attorney, must prove, beyond a reasonable doubt, that you possessed the contraband. In legal terms, possession can be actual or constructive. Actual possession mean you had physical control over the contraband – it was directly on your person. Because people are often smart enough not to carry contraband directly on their person, the law had to figure out how to allow a conviction when the contraband was not within the defendant’s direct possession. The answer was to allow a conviction using “constructive possession.”
The law typically defines constructive possession as a situation wherein the defendant has “the intent to maintain dominion and control over the contraband.” What does that mean? It can mean different things to different people – something that can help with your defense. For example, if the vehicle was yours, and the drugs were found underneath the driver’s seat and the only other passenger was sitting in the passenger seat it is relatively easy to argue that the drugs were yours and that you clearly intended to be able to control them. On the other hand, if the vehicle was not your, the drugs were found under the driver’s seat but you were it the passenger seat, and there were two other passengers in the backseat of the vehicle, it is much more difficult to make a convincing argument that you possessed the drugs because you had the intent to control them. Remember, a jury must be convinced beyond a reasonable doubt that the drugs were yours.
If you have been charged with a drug related criminal offense in Nebraska that is based on the concept of construction possession you may have a viable defense. Contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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