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What is constructive possession of drugs?

People's perception of drugs, particularly marijuana, has changed radically in Ohio and across the nation. As you know, our state is in the process of implementing the legality of medical marijuana. Nevertheless, other types of drug possession remain illegal. If convicted of drug possession, you could face serious penalties, including substantial jail time depending on the kind and quantity of drugs law enforcement officials allege you possessed at the time of your arrest.

In order for you to receive a drug possession conviction, the prosecutor needs to prove that you actually possessed drugs. It may surprise you to learn that there is a way (s)he can do this even if officers did not find the drugs in your pocket(s) or elsewhere on your person.

Constructive possession

The legal doctrine of constructive possession holds that you possess drugs if you own or control them. This is what the prosecutor attempts to prove based on the circumstances surrounding the situation in which officers found the drugs.

For example, if the officer testifies at your trial that (s)he discovered the drugs in the locked console of your car and legally obtained its key from you, that circumstantial evidence allows the jury to reasonably infer that you owned the drugs because you controlled them by virtue of having the only key to their hiding place. The jury may find the officer's testimony credible. Assuming they do, this circumstantial evidence could allow them to convict you due to constructive possession.

Now change the circumstances. This time the officer testifies that although (s)he discovered the drugs in your car's console, it was not locked. Or (s)he testifies that (s)he discovered the drugs hidden underneath one of your car's seats. Since anyone could have placed them there without your knowledge or consent, now there is no way to conclusively prove that you owned or controlled the drugs. This establishes reasonable doubt as to your ownership, and therefore, a jury may find reasonable doubt to acquit you based upon the evidence.

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Douglas A. Ball, Attorney at Law

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Batavia, OH 45103

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