Since the “War on Drugs” began several decades ago, it has become increasingly detrimental to an individual’s future to be convicted of a drug-related criminal offense. Once upon a time, the focus of most law enforcement agencies and judicial systems was on the more serious offenses of manufacturing, selling, and trafficking drugs. Today, however, even an arrest for possession of a relatively small quantity of drugs can have dire consequences for your future, making it even more important that you launch an aggressive defense when possible. If your case involves a claim of constructive possession on the part of the State, you may have a much stronger defense than you realize. An Omaha drug possession lawyer explains the concept of constructive possession and how an experienced defense attorney might be able to attack a case based on constructive possession.
Does This Sound Familiar?
The facts may change somewhat, but this is one of the most common scenarios an experienced criminal defense attorney hears from clients:
An acquaintance offers to give you a ride somewhere. You get in the vehicle – a vehicle you don’t own nor are you driving the vehicle. You might be the only passenger or there might be other passengers in the vehicle as well. Not long after you get in the car, you realize the car is being stopped by the police. You might be a little nervous, but since you have nothing illegal on you it seems just a minor inconvenience. After the officer asks for the driver’s license, registration, and proof of insurance, the officer disappears for a few minutes. When he comes back, he orders everyone out of the vehicle. It turns out that the driver had a warrant for his arrest. The officer then searches the vehicle and finds a baggie full of marijuana (or pills, or methamphetamine etc.) under the passenger seat of the vehicle. The next thing you know you are being placed under arrest and charged with possession of a controlled substance.
This scenario, or one similar to it, occurs all the time. All too frequently, defendants end up accepting a guilty plea agreement when they aren’t even guilty because they fear the consequences of losing at trial. What they don’t know is how flimsy the State’s case may actually be when the State is depending on a constructive possession argument to convict a defendant.
What Is Constructive Possession?
The State bears the burden of proof in any criminal prosecution. That proof must convince a judge or jury of the defendant’s guilt beyond a reasonable doubt. If a defendant is charged with possession of a controlled substance, one element of the crime is that the defendant possessed the contraband. Under the law, possession can be actual or constructive. Actual possession means you had physical control over the item in question. Constructive possession, however, is much more elusive. The Supreme Court of the United States has even said: “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). That ambiguity can work for you if you are charged with a crime and the State is depending on a constructive possession argument. The most widely accepted definition of “constructive possession” requires the State to prove that the defendant had “knowledge of the item in question and that the defendant had the intent to maintain dominion and control over the item.” This can be more difficult for the State to prove than you might think. In the scenario above, for example, how would the prosecutor prove, beyond a reasonable doubt, that you even knew the drugs were under the seat? Beyond that, where is the proof that you intended to exert any control over the drugs? As you can see, when the State depends on constructive possession is often gives the defendant more than a fighting chance at avoiding a conviction when an experienced criminal defense attorney is on your side.
Contact an Omaha Drug Possession Lawyer at Petersen Law Office
If you have been charged with possession of drugs in the State of Nebraska, consult with an experienced Omaha drug possession lawyer 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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