If you were recently arrested and charged with a drug-related criminal offense in the State of Nebraska, you could be facing a significant amount of time in prison if convicted, depending on the level of offense for which you are convicted. Even if you are only charged with a misdemeanor possession charge, a conviction for any type of drug offense could have far reaching, and long lasting, negative consequences. You owe it to yourself, and to your future, to launch a vigorous defense. If the prosecution’s case is based on constructive possession, an experienced criminal defense attorney may be able to successfully defend the charges against you. Your attorney should provide details about how a constructive possession defense would work in your specific case; however, because it is always better to know as much as possible about your situation when charged with a crime, an Omaha drug crime attorney explains constructive possession.
The Elements of a Criminal Offense
In the State of Nebraska, criminal offenses can be located in the Nebraska Revised Statutes. Each criminal offense is made up of elements. The State (through the prosecuting attorney) must prove each element of the offense in order to secure a conviction. For example, the following statute makes theft a crime in Nebraska:
“A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof.”
For a conviction, each of the following elements of that statute must be proven by the prosecuting attorney:
- A person
- Takes or exercises control over
- Movable property of another
- With intent to deprive
The Burden of Proof
The United States criminal justice system operates under the presumption of innocence. As such, the State, through the prosecutor, has the burden of proving a defendant guilty beyond a reasonable doubt. That burden extends to each and every element of the offense, meaning that the prosecuting attorney must prove each element of the crime beyond a reasonable doubt.
The Element of Possession
In many criminal offenses, possession is an element of the offense. Possession of a controlled substance, for example, requires the State to prove that the defendant “possessed” the contraband. Initially, defining “possession” may seem simple enough; however, in legal terms it is not. The reason for that is that in legal terms there are two types of possession – actual and constructive. Actual possession refers to having physical control of the item in question. Constructive possession is a concept that evolved as a response to situations where law enforcement officers believed a suspect owned an item but the item was not physically found on the suspect. For example, imagine that a law enforcement officer conducts a traffic stop of a vehicle that has a driver and three passengers. The officer subsequently searches the vehicle and uncovers a bag of cocaine under the passenger seat. Who is the owner of the drugs? The concept of constructive possession evolved to answer that question.
Attorneys, judges, and scholars have wrestled with the definition of “constructive possession” for many years. Although there is still no universally accepted definition, most legal professionals agree that an individual has constructive possession of an item if he/she has the “intent to maintain dominion and control over the contraband.”
How Can an Omaha Drug Crime Attorney Help?
Prosecutions for drug-related offenses frequently involve a constructive possession argument. If your case falls into this category, an experienced Omaha drug crime attorney may be able to help. As you can well imagine, proving the possession element using a constructive possession argument is typically harder for the prosecuting attorney than proving actual possession. The only way to find out where you stand, however, is to consult with an experienced Nebraska defense attorney.
If you have been charged with a criminal drug-related criminal offense in the State of Nebraska, it is in your best interest to consult with an experienced Nebraska criminal defense attorney 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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