Although over half the states within the United States have now enacted laws that legalize the possession of marijuana in some form and/or for specific purposes, the State of Nebraska is not among them. Possession of marijuana, therefore, remains illegal within the state. If you have been accused of possession of marijuana, therefore, you could end up with a criminal conviction on your record if convicted. The goal, of course, is to avoid a conviction. One potential defense strategy might apply, depending on the factual circumstances surrounding your arrest. Constructive possession is actually an argument the prosecuting attorney may have to make to prove all of the elements of the crime. Although constructive possession can fulfill the possession element of a crime, it often leaves your marijuana defense attorney with a potential winning defense instead.
Nebraska Law – The Elements of the Offense of Possession of Marijuana
Nebraska Revised Statute 28-416(11) governs the possession of more than one ounce but less than one pound of marijuana, reading as follows:
“Any person knowingly or intentionally possessing marijuana weighing more than one ounce but not more than one pound shall be guilty of a Class III misdemeanor.”
To convict a defendant of the above criminal offense, the prosecuting attorney must show that the defendant:
- Knowingly or intentionally
- Possessed
- Marijuana weighing between one ounce and one pound
Possession Defined
If someone asked you to define the word “possession” you would probably feel comfortable providing a definition. Your definition would likely refer to actual possession. In legal terms, actual possession occurs when the defendant has immediate and direct physical control over the contraband, in this case, marijuana. What if you did not actually have any marijuana on your person though? In that case, the prosecuting attorney must rely on the concept of constructive possession to prove the “possession” element of the offense. Constructive possession has long been the subject of litigation, arguments, and seemingly unlimited attempts as a universally accepted definition. One common definition requires the State to prove that the defendant had “knowledge of the item in question and had the intent to maintain dominion and control over the item.”
Turning the Tables in a Constructive Possession Case
If the prosecuting attorney is forced to rely on a constructive possession argument to prove the element of possession, your criminal defense attorney may be able to turn the tables and use it as a defense instead. Remember, the State must prove every element of the crime beyond a reasonable doubt to secure a conviction. In a constructive possession case involving possession of marijuana, the following facts and circumstances, if relevant, might prevent the prosecutor from meeting his/her burden:
- Contraband found in/on property not owned by you. For example, if you were in a vehicle not owned by you. An argument can be made that it was not your marijuana since it wasn’t your car.
- Numerous people had access to the location where the marijuana was found. For instance, if the marijuana was found in a locker room where numerous people come into and out of every day, you can insinuate that it belongs to any one of those other people.
- Additional people were present at the time of the arrest. If the police searched a house where you live, but 4 other people were present at the time, it is difficult to prove that you had the “intent to maintain dominion and control over the contraband.”
- Marijuana was not in plain sight. Even if the marijuana was found in a vehicle belonging to you, for example, if it was underneath the seat and others were in the vehicle at the time or you can prove other people were in the vehicle just before the arrest, it decreases the State’s ability to prove that you had “knowledge of the contraband.”
Contact a Nebraska Marijuana Defense Attorney at Petersen Law Office
If you have been charged with a marijuana-related criminal offense in the State of Nebraska, consult with an experienced Nebraska marijuana defense attorney as soon as possible to ensure that your rights are protected. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
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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