| Read Time: 3 minutes | Criminal Defense

“The Drugs Weren’t Mine” Defense

Drug crime suspects often tell police officers, “Officer, those are not my drugs!”

While that is a common defense people use upon their arrest, that does not mean it is a lie. It is possible to get arrested for possessing drugs that didn’t belong to you, and it is possible to get acquitted of your drug possession charges depending on the circumstances of your case. The type of drug possession you are accused of can make a big difference in the outcome of your criminal case, one that could determine whether you go to jail or walk free.

In Colorado, you may be accused of actual possession, constructive possession, or joint possession.

Actual Possession

Actual possession is when drugs are on an individual’s person, meaning the drugs are in their hands, pockets, jackets, purses, or otherwise carried by the person. Think about it this way ― if drugs are in your direct control and no one else can access them, then you are in actual possession of the controlled substances. If you are accused of this, it will be challenging to prove that the drugs were found to be in actual possession of drugs, it may be easier to get convicted of drug possession than if the drugs were simply near or around you.

Constructive Possession

Constructive possession occurs when a person has control over a drug without physically touching it. As such, constructive possession charges are generally administered based on circumstantial evidence.

For example, if you borrow your friend’s car without realizing they keep cocaine and drug paraphernalia in the center console, things can go wrong if you get pulled over for a traffic offense. In the event you get stopped by the police, an officer may have probable cause to search your friend’s vehicle, and if they don’t have probable cause, they may ask your permission to conduct a search. If you waive your Fourth Amendment rights by consenting to an unreasonable search and seizure, the officer will find the bags of cocaine and needles and assume they’re yours.

As a result, you may get arrested and charged with drug possession because the officer believed the drugs were yours. No matter how many times you say, “This isn’t my car and those drugs aren’t mine,” the officer, based on the circumstances, may still assume you knew the drugs were in the car and what type they were, and also assert that the drugs were subject to your control.

In order to prove that you had constructive possession of controlled substances, the government has the burden of proving the following:

  • You were aware of the presence and character of the contraband
  • That the contraband was subject to your dominion and control

To convict you of constructive possession, the prosecution has a challenging burden of proof to satisfy. They must prove that you were aware of the nature of the drugs and their whereabouts, as well as prove that you knowingly possessed them. In addition, prosecutors must prove that you voluntarily consented to an unreasonable search and seizure despite the officer lacking probable cause to do so.

Joint Possession

Let’s say you are a passenger in a vehicle full of friends and a police officer pulls the driver over for speeding. The officer suspects some of you to be under the influence of drugs, including the driver, giving them probable cause to search the vehicle. The officer finds a container of Adderall that is not prescribed to anyone in the vehicle, a bag of cocaine, and quite a few tabs of acid in the vehicle’s trunk.

You panic, as you had no idea drugs were in the vehicle nor who they belonged to. Will you get arrested for drug possession even though they weren’t yours?

This scenario is an example of joint possession. Joint possession is when two or more people have actual or constructive possession of the same drugs. In this example, you and your friends may be accused of joint constructive possession since no one was physically touching the drugs. However, a good attorney may be able to help prove that you were not the only person who could access the vehicle and the drugs found by the police officer did not belong to you.

Caught in the Wrong Place at the Wrong Time?

Although Colorado recently decriminalized various drug possession offenses, that does not mean you should take your charges lightly. You may still go to jail, pay heavy fines, and suffer a criminal record upon conviction. As such, you should maximize your chances of getting a favorable outcome in your case by retaining our Denver drug possession attorney right away.

Contact us at (303) 732-5048!

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