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Can You Be Charged With Possession If You’re Not Holding Drugs?

Although some experts now believe that the United States’  so-called “war on drugs” has been a failure, drug crime laws in Florida remain some of the country’s strictest.  Simply possessing controlled substances such as cocaine, methamphetamine, or heroin is a third degree felony.  Penalties for a possession conviction include fines and up to five years in prison.  And in answer to our title question, yes, you can face possession charges even if you are not in physical possession of drugs.

Actual vs. constructive possession

Florida law, like that of many other states, recognizes two different types of drug possession – actual and constructive.  You are in actual possession of drugs if police find illegal controlled substances on your person – for instance, in a jacket or pants pocket.  Constructive possession occurs, however, when the police find drugs in your vicinity.  If you are a passenger in your friend’s car and police find drugs in the passenger compartment, both you and your friend can be charged with constructive possession.

Proving constructive possession

To convict you of constructive possession of drugs nearby (for instance, in a common area or a car’s passenger compartment), the prosecution must prove that you knew the drugs were there and you had the ability to access or control them.   Florida courts have said that the prosecution must prove three things:

  1. That you knew the drugs were there;
  2. That you had “dominion and control” over them; and
  3. That you knew the drugs were illegal. (See Williams v. State, 573 So. 2d 124 (Fla. Dist. Ct. App. 1991.)

The fact that the drugs were close to you, even if they were in plain view, is not by itself enough to establish constructive possession.  In Session v. State, a recent Florida case from the Fifth District Court of Appeal, defendant Johnson Session was charged with constructive possession of drugs found in a car next to him.  At the time of his arrest, police found Session and another individual in a car that neither of the two owned.  Session was in the driver’s seat rolling a joint while the car’s other occupant sat in the front passenger seat.  Between Session and the passenger, sitting on the car’s center console in plain view, the officer observed several baggies of crack cocaine and one of morphine.  The bags were equidistant from Session and the other occupant.  Session was charged with constructive possession of the crack cocaine and morphine.

The prosecution offered no evidence that either Session’s or the other occupant’s fingerprints or DNA were found on the drugs, or that either said anything incriminating.  Since the entirety of the evidence against Session was that the drugs were found near him in plain sight in a car he did not own, the court concluded that the prosecution had not proved constructive possession.

Consult a Winter Park Drug Crime Attorney

If you are facing any type of drug charge, the experienced Winter Park drug crime lawyers of Cotter & Zelman, P.A., can help.  We defend clients against a wide variety of state and federal drug charges. We are committed to protecting your rights.  Contact us for a consultation about your case today.

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