Contact a Drug Possession Attorney in Fayetteville, AR
When can I be charged with possession of a controlled substance?
You can be charged with possession of a controlled substance if you are caught with a drug classified as a controlled substance by the Arkansas Department of Health. “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through VI.
Some controlled substances can be lawfully possessed if you have a valid prescription from a doctor. Prescription medication must be kept in the same container in which it was dispensed from the pharmacy.
Some people think the state has to prove the controlled substance was “theirs” before they can be charged with a crime. This is not true. All that must be proved is that you exercised “dominion and control” over the substance. In the real world this means if the drug is found on your person, in your vehicle, or in your residence, you will probably be charged with possessing it. You can even be charged with possession of a controlled substance just because you were near the substance when police found it.
Understand that simply being charged does not mean you are guilty. If you can raise a reasonable doubt as to whether you possessed the substance, whether the substance really was a controlled substance, or if you can prove the police found the substance in an illegal search, you walk. This, of course, is why anyone facing such a charge needs an experienced criminal defense lawyer.
Can I be charged for drugs found by police that weren’t mine?
Yes. In some cases, you can be charged with possession of a controlled substance for drugs that were found in an area that you were occupying such as a home or a vehicle. This is known as “constructive possession” as opposed to “actual possession.” Actual possession means that drugs were found on your person where no one else had equal access to them. Constructive possession is a legal term that is used when items seized were not found on a person, but the suspect had access to the items and control over them.
When police find drugs in a vehicle, it is not unusual for everyone who was riding in the vehicle at the time of the search to be arrested. If this has happened to you, it is important to remember that police only need probable cause to arrest you for a crime. To prove its case in court, the state must establish your guilt beyond a reasonable doubt. The burden of proof carried by the state to obtain a conviction is a much higher burden than needed for police to arrest a suspect.
Many cases of constructive possession turn on technical details, such as whether or not a defendant had actual or exclusive control of the area where the drugs were seized and whether it can be inferred that the defendant, according to evidence presented by the state, knew about the contraband. This is why it is important to discuss your case with an experienced defense lawyer and never plead guilty to crime just because you think you might be convicted if the case goes to trial.
How is the weight of a controlled substance measured?
The amount of controlled substance is based on the “aggregate weight,” or total weight, of the substance including any “adulterant” or “diluent.” Basically, if a controlled substance is mixed with anything else, the aggregate weight of the two together is what counts.
In short, this means if you make two pounds of pot brownies with one ounce of marijuana and get caught, you will be charged with possession of two pounds of marijuana rather than one ounce of marijuana. If this seems unfair, you may well have a point, but it is still the law
What are possible defenses to a drug possession charge?
Being charged with a crime can be one of the most terrifying times in your life. It is important to remember that the state has the burden of proving each and every element of the crime charged. If the state fails to meet its burden of proof, you must be found not guilty. Another way to beat a drug charge is through pre-trial challenges to the state’s case. The following are several ways drug charges may be challenged:
Illegal Stops – Many drug charges arise from circumstances where law enforcement conducted a traffic stop. Police are not allowed to stop vehicles randomly, hoping to find drugs. Police may stop a vehicle if the driver commits a traffic offense such as speeding or if the vehicle’s equipment is not working properly. If police conducted a stop unlawfully, any evidence that was found as a result may be suppressed.
Warrantless Searches – The Fourth Amendment to the Constitution of the United Sates prohibits warrantless searches of a home or person unless an exception to the warrant requirement applies. A very common exception to the warrant requirement is when an individual grants consent to search. Never consent to a search of your person, home or vehicle. Another common exceptions is exigent circumstances, where police need to conduct a search because a person’s health or safety may be in jeopardy or where police have a reasonable belief that evidence may be in danger of being lost or destroyed. Police may also conduct a search pursuant to a lawful arrest. If no exception applies and police failed to obtain a warrant, any evidence found must be suppressed on the basis that the search was unlawful.
Illegal Seizures or Arrests – Police must have probable cause to arrest you for a crime. If police arrest you unlawfully, any evidence found as a result may be suppressed as “fruit of the poisonous tree” that was found solely because of the unlawful arrest. Police may only detain you for a limited period of time to investigate a crime. If you were detained beyond these time limits unlawfully, it may be possible to get any evidence found in a search that occurred beyond these time limits excluded.
Failure to Establish Chain of Custody – To introduce evidence at trial, the state must establish a chain of custody. Evidence must be properly labeled and stored. Usually when police seize what they suspect is a controlled substance, it is sent to the Arkansas State Crime Lab for further testing. For the evidence to be introduced at trial, there must be a reasonable degree of certainty that the evidence has not been tampered with.
Schedule a Consultation with an Experienced Arkansas Defense Attorney
If you have been charged with possession of a controlled substance in Arkansas, contact a criminal defense attorney right away. Fayetteville attorney Greg Klebanoff is dedicated to helping his clients get the best possible outcome. Contact Greg Klebanoff by calling (479) 442-7400 or fill our online form.