Illicit drug possession is a crime. Individuals who have prescription medication without a doctor’s recommendation or prohibited drugs are at risk of arrest. Some people get arrested while under the influence because they possess drugs by having them in their bodies. Others may get caught with drugs that they have not yet consumed.
When state prosecutors bring drug charges against individuals, they often indicate whether they allege that the defendant had actual or constructive possession of the drugs. What separates actual possession from constructive possession?
Actual possession involves physical control
The term actual possession means that police officers found the drugs in someone’s body or on their person. If police officers find drugs in someone’s pockets or hidden in a backpack they carried, the state can pursue actual possession charges against that individual.
Constructive possession is more complex
Prosecutors can also bring charges against people who they allege had constructive possession of a drug. Constructive possession occurs when the state can credibly claim that an individual knew about the drugs and therefore had control over what happened with them. For example, if police officers stop a vehicle and find drugs in the backseat, they may choose to charge the driver or any of the passengers with constructive possession.
Factors including prior criminal records, statements people make, proximity and forensic evidence, like fingerprints, can help establish constructive possession. Access is also a key factor. Drugs found in a locked box likely belong to the person who has access to that box rather than others who may have been in the same vehicle or living space.
Every case requires a unique approach
No two drug possession cases are the same. Defendants hoping to avoid a conviction need to create a custom defense strategy based on the unique circumstances leading to their arrest. Questioning the legality of a search can be a reasonable tactic in some cases. Pushing back on claims of constructive possession can work in others.
Exploring the state’s evidence with a skilled legal team can help those hoping to defeat pending drug charges. Both actual and constructive possession offenses typically lead to the same penalties based on the type and weight of the drugs found by police officers.