Protecting Your Legal Rights Since 1994

  1. Home
  2.  » 
  3. Drug Charges
  4.  » Drug possession defense based on constructive possession

Drug possession defense based on constructive possession

Drug charges often carry with them serious penalties. Thus, when you are accused of a drug crime, you are often concerned about the outcome. This is especially true when there is a charge of drug possession when the drugs in question were not in your actual possession. The basis in these charges is constructive possession, and it could be enough to convict the accused as if they were in actual possession of the illegal substance.

Whether it was following a traffic stop or another situation that subjected you or your property to a search, it is important to understand your rights when it comes to these searches, evidence collection, your arrest and other law enforcement procedures.

What is constructive possession?

Before constructive possession is explained, actual possession will be discussed. Actual possession is described as having direct physical custody, care or control of property or an illicit substance, such as illegal drugs. And, as it was determined in the 1995 case, State v. Garrison, having actual possession of an illegal substance is not necessary to secure a drug possession conviction. This case refers to constructive possession.

Constructive possession is defined as having the knowledge of the ability or the intent to exercise control over something, such as illegal substances, by either direct control or through the control of others.


While constructive possession could be asserted in various situation, the following are a few examples. A common situation is when an individual is knowingly in possession of a key. The key could be for a locker, safe, lockbox, car or even a home. Based on the presumption that the individual in possession of the key has exclusive access to what lies within the locker, lockbox, safe, car or home, having a key in your possession is like having the contents of these locked spaces in your back pocket.

Another example is when the illegal substance is found on another person; however, there is a presumption that you gave the illegal substance to this person to hold it for you. They could argue that you still exercised control or intended to control it despite it no longer being in your possession.

Because constructive possession is based on certain presumption, it is possible to create a defense that disproves these presumptions. An assertion that you had no knowledge of the drugs could be a viable defense. Additionally, you could claim that an unlawful search and seizure was performed. No matter what defense option you take, it is important to understand your rights and how best to protect them through an aggressive defense.