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Actual vs. Construction Possession

Does where a controlled substance is found during a drug possession arrest affect the case against the accused? It can. As many accused have learned, "possession" can be proven in court even when the controlled substance is not found on their person at the time of the arrest. That is because the law recognizes two types of possession: actual and constructive.

These types are defined as such:

  • Actual possession is when the controlled substance is found directly on the person of the accused. This means in their hand, in their pocket, in a bag that they are carrying.
  • Constructive possession is when a controlled substance is found in a place where it is assumed the accused had control over the drugs. This usually means the drugs are found someplace where the accused lives, works, or regularly visits.

Common examples of constructive include finding controlled substance in the car of the accused, or hidden in a desk drawer of their home or office. They do not have to be present at the site of the finding for their possession to be asserted before the law—the possession is assumed.

Defending Against Both Possessions

It can be difficult to argue for innocence in court if the accused with a controlled substance on their person. This means that they were discovered by police to be holding, carrying, or transporting the substance, often times with no one else present.

Constructive possession, however, many times requires more diligence from the prosecution. In these cases, they must connect, without a reasonable doubt, the drugs to the accused. In a few cases, this might seem obvious, but in other cases, especially when drugs are found in social setting, or any setting where there are multiple individuals who know that drugs are present. Not only are many innocent people charged under the umbrella of constructive possession, but the state must dispel more doubt that the drugs actually belong to the accused in these cases.

If you or a loved one has been charged with drug possession, it is time to speak with a trusted Englewood criminal defense attorney about their legal options. At Alan M. Liebowitz, Esq., LLC, Attorney Liebowitz has more than 25 years of experience in the criminal defense arena and has time and time again ensured that every avenue towards an acquittal or dismissal has been aggressively pursued on their behalf.

Do not hesitate to start protecting your future. Call the firm at 201.340.9338 today. Se habla Español.