Constructive Possession & Drug Charges

If you have recently been charged with possession of a controlled substance in Virginia, the government will try to prove your guilt beyond a reasonable doubt by showing actual or constructive possession. To people who are unfamiliar with the legal world, possession seems simple – either you had drugs in your physical possession or you didn’t. But in the legal sense, possession is much more complex. You can still be charged with possession of a controlled substance if drugs weren’t found on your person at the time of arrest through the legal principle of constructive possession.

Constructive possession refers to instances where you might not have physical possession of the drug in question, but that the government tries to prove that you had:

• Knowledge of the drug’s presence on or around your property
• Knowledge of the drug’s character, and
• The ability to maintain control over the property.

Constructive possession can apply not only to an individual, but also to a group of people. Oftentimes when officers do not know whose drugs they have found, they will charge everyone.

Knowledge of Presence

In Virginia, the Commonwealth Attorney can point to your presence at the scene where drugs were found to argue knowledge in a constructive possession case. However, presence is not required – you can still be charged even when you were not present when the drugs were discovered if there are indicia to show knowledge. If the substance was found to be in plain and open view, this may constitute knowledge.

Knowledge of Character

The government must prove that you had knowledge of the nature of the substance and that you had knowledge of its character or legality. To show this, the Commonwealth might use paraphernalia as evidence that you had knowledge of character.

Control Over Property

The prosecution will likely look for personal effects like keys to a building or vehicle, identifying documents or paperwork, or other items to show that you had control over the property. For example, even if drugs were found in a vehicle that you do not own, the prosecution may still try to prove constructive possession if personal effects are found in close relation to the drugs – particularly if you used the vehicle frequently.

In cases of constructive possession, proximity to the drug in question is not sufficient to prove possession. The prosecution may still consider it as a factor, though the Commonwealth Attorney must prove knowledge of presence and of character by using additional facts.

This is why it’s important that you find and hire an experienced Roanoke drug lawyer who can defend your case. In theory, constructive possession cases are harder for the prosecution to prove than actual possession because it depends on circumstantial evidence. This type of evidence includes verbal statements, non-verbal cues, and other types of behavior. An additional issue that an experienced attorney can evaluate is whether the evidence was obtained legally or in violation of your constitutional rights. A criminal defense attorney can assess the evidence against you and submit a motion for evidence to be suppressed if it was illegally obtained. A Roanoke drug lawyer may also be able to negotiate for first offender treatment if this is your first drug-related offense, which may result in a dismissal of your charges.