Wednesday, February 18, 2009

THE DRUGS AREN'T MINE: WHEN YOU ARE CHARGED WITH POSSESSION OF NARCOTICS

You’ve just been arrested for possession of a controlled substance. Maybe it’s marijuana or cocaine or methamphetamine or even heroin. Maybe the substance was mailed to you in a package or the police found it in your car or the apartment you share with a roommate. Whatever the circumstances, you say the drugs aren’t yours. Can you get your case dismissed?

To prove possession of a controlled substance, the state must show: 1) you knew about the presence of the drugs, and 2) the drugs were in your immediate and exclusive control. The police do not have to show you had the drugs on your person. Constructive possession is enough. For example, the drugs are in your closet and no one else has the keys to your home.

Since actual knowledge is difficult to prove, the state can infer that you knew about the narcotics from your acts, declarations or conduct. Maybe you threw the package out the car window to conceal it. Or you made up several conflicting stories about the package and who it was for. Sometimes, the fact you opened a package addressed to you can be enough. At other times, your knowledge can be inferred from your control of the package, as when you tried to conceal the narcotics.

While the state must show the drugs were in your immediate and exclusive control, the fact that others had access to your drugs may not be enough to get an acquittal. Possession may be held jointly. You may be in a car with three other people when a police officer, in a routine stop, finds cocaine under the seat. The police may charge you even if you really didn’t know about the drugs.

The law regarding drug offenses can be very fact specific. A lot can also depend on who your judge is. If you are charged with a narcotics offense, your best chances lie in seeking legal counsel as early as possible. If you are placed under arrest, do not talk to the police and instead ask to speak with an attorney. An experienced attorney can determine whether the police violated your Fourth Amendment rights when they arrested you. An attorney can also guide you toward the best defense if your case should go to trial. If you have any questions, feel free to call me at 847-568-0160 or email me at matt@mattkeenanlaw.com.

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