Utah Criminal Defense Trial Lawyer–Jake Gunter
Possession of Illegal Drugs—What Legally is Possession?
In order to be convicted of possessing illegal drugs you must either:
(1). Direct Possession. Have direct possession of the drugs. Example: You intended to possess the drugs and the drugs were found in your pocket.
(2). Joint Possession. Two or more people jointly have possession of the drugs and have joint ownership. Just like a car or a house, two people can own the same drugs and both be charged with possessing the same drug, even though only one person has actual possession of the drugs on their possession, or back at their house.
(3). Constructive Possession. Construction possession is where the drugs are not actually on your person, but are located in another location, not collocated near the arrest or contiguous to the arrest. Example: You are arrested in your car in Utah on an arrest warrant. The Federal drug charges indicate that the drugs are actually in your California home, not on our possession at the time of the arrest.
Factors to Prove in Construction Possession
They key with Joint of Construction Possession is that prosecuting attorney must prove that the drugs were on you and there is a legal and factual link between you and the drugs. Utah’s jury instruction, or legal instructions, to the jury state the following constructive possession factors:
CR1202B Definition of Constructive Possession
“A person is in constructive possession of [a controlled substance] [drug paraphernalia] when the person has the ability and the intent to exercise control over it. Factors relevant to deciding constructive possession may include the following:
(1). Ownership and/or occupancy of the [residence] [vehicle] [property] [personal effects] where the [controlled substance] [drug paraphernalia] was found;
whether that ownership or occupancy was exclusive;
(2). Presence of the [controlled substance] [drug paraphernalia] in a location where (DEFENDANT’S NAME) had special control;
whether other people also had access to the location of the drugs;
(3). Presence of (DEFENDANT’S NAME) at the time the [controlled substance] [drug paraphernalia] was found;
(4). Defendant’s proximity to the [controlled substance] [drug paraphernalia];
previous drug use;
(5). Incriminating statements or behavior; or
(6). Any other factor related to whether (DEFENDANT’S NAME) had the ability and intent to exercise control over the [controlled substance] [drug paraphernalia].
References: Utah Code § 58-37-2. State v. Lucero, 350 P.3d 237 (2015)
Mere Presence is Not Sufficient.
Your mere presence at the place where the drugs were located is not sufficient on its own to prove that you were in possession of illegal drugs. There must be more proof.
Drug Possession Convictions are Enhanceable Offenses:
Just like domestic violence convictions, DUIs, and host of other crimes, drug convictions are enhanceable and your second offense or third offense may result in increasing sentencing severity or increased charges. Example: You are arrested for your third possession of illegal substances. The prosecutor may amend your original charge and increase the severity from a Class B Misdemeanor to a Class A Misdemeanor.
Adult Driver’s License Suspension/Revocation.
Just like a Utah DUI or drunk driving case, your license will get suspended when you get busted for illegal drug possession or drug paraphernalia. Keeping your license is important and a good criminal defense attorney can help you keep your license.
6 Months Suspension: If you are convicted of possessing, distributing, or using drugs in any fashion that violates the Utah Controlled Substance Act or the Utah Drug Paraphernalia Act, your license will be suspended for six months. The controlling code provisions as of 2017 are Utah Code Ann 53-3-220.
As to adults, if you drive a car and get caught again while you are still serving your original suspension or revocation period, you will receive a “like term” suspension or revocation for up to another year.
Minor Driver’s License Suspension/Revocation.
When a minor child in Utah is convicted of drug crime, the court may suspend and probably will suspend the minor child’s Utah driver’s license. If the minor is 18 years old when he is convicted of a drug crime there are ways to reduce the suspension period through treatment and drug education courses.
Drug Evaluation and Treatment Follow Through.
One way your attorney can advocate for you is appropriate drug evaluation and court ordered treatment. The sentencing court will create different orders if you are a habitual drug user versus a first time offender. Either way, your criminal defense attorney should advocate to the court sentencing and treatment orders that are appropriate for you. Not everyone needs 16 weeks of domestic violence training, or intensive outpatient drug rehabilitation.
Distribution of Illegal Drugs.
Utah law penalizes much more severely drug selling or drug distribution. Depending on the drug that is allegedly being distributed or sold, the penalties can be 2nd Degree Felonies to Class A Misdemeanors.
Distribution charges are generally felonies and should be taken very seriously as even first time offenders can be sentenced to prison for many years. An experienced Utah criminal defense trial lawyer can help you alleviate or win against the great weight of the government.
