Constructive possession of a controlled substance is one of the most common drug charges in the Boston area courts. While possession generally implies that you have ownership of something, you can still be charged with possession of an illegal substance, even if you do not actively have the drug. The specifics of your case can be determined most effectively by a Massachusetts criminal defense attorney, but there are a few details that you should know.

The prosecution can prove possession of an illegal drug in one of two ways:

  • Actual possession: With actual possession, physical drugs are found on you, or in your hand, at the time of the arrest.
  • Constructive possession: Constructive possession implies that you knew of, and could realistically access the drugs.

Constructive possession refers to a situation when an individual does not have specific possession, but instead, knows the drugs whereabouts or the ability to obtain the drug.

Examples of Constructive Possession

Here are a few examples of constructive possession:

  • A police officer finds drugs in your truck after being pulled over
  • A police officer finds drugs underneath the chair you are sitting on
  • You are pulled over, and drugs are found on one of your passengers
  • Drugs are found on your partner or spouse in your house

Constructive possession places the burden of proof on the prosecutor. The prosecution must prove that the drugs were present and that you were knowledgeable of them and had an intent to control or distribute them.

Important Elements in a Constructive Possession Case

Proving possession of a controlled substance requires the following important elements:

  • The item in question is an illegal or controlled substance
  • The defendant had a significant quantity of the substance
  • The defendant knowingly possessed the substance

Proving constructive possession requires one additional element. To be charged with constructive possession, the following must be true:

  • The defendant knew of the drug and its location and had the ability, and intention, to control the substance (also referred to as dominion and control)

Because knowledge plays an important role in proving constructive possession, it is important to understand what constitutes knowledge. Knowledge of a controlled substance requires that the defendant knew of the drug’s whereabouts or that they should have reasonably known of the drug. It is not enough to simply demonstrate that the defendant knew of the drugs. For a constructive possession charge, it is also necessary to demonstrate that the defendant had intended to control or possess the drugs. This is not always easy to do, and the burden of proof lies on the prosecutor.

The ability to control is also an important element. The constructive possession of drugs is often characterized as having dominion and control. This means that the person has control over whether or not the drugs are found. Because more than one person can be knowledgeable of a drug’s whereabouts, multiple people can be charged with constructive possession at one time.

Legal Consequences of Constructive Possession in Massachusetts

Dealing with constructive possession charges should be taken seriously, and it is in your best interest to contact a drug crimes lawyer immediately. The legal consequences that come with a constructive possession charge are similar to possession charges. Charges vary, depending on the severity of the drug. Illegal substances are divided into classes. In Massachusetts, you can expect the following legal consequences:

  • Class A: Class A substances include drugs like heroin, morphine, methamphetamines, and ecstasy. Legal charges could consist of up to two years in jail and a maximum of a $2,000 fine.
  • Class B: Class B substances are drugs like cocaine, LSD, opium, and oxycodone. Legal charges could include up to one year in jail and legal fines up to $1,000.
  • Class C: Class C substances in Massachusetts include Klonopin, Valium, Vicodin, and Ativan. Legal charges include up to one year in jail and legal fines up to $1,000.
  • Class D: Class D substances include marijuana and hashish. Marijuana quantity must exceed 30 grams. Legal charges include up to six months in jail and a $500 fine. Class D defendants also risk losing their license for up to one year.

Legal guidelines are limited to first-time offenders. Defendants with a previous history of drug charges could face even more significant charges.

Potential Constructive Possession Defenses

Because the legal charges present with constructive possession are similar to possession of a controlled substance, the available legal defenses are also the same. Potential legal defenses include:

  • The defendant did not knowingly possess the drug: Constructive possession drug charges require that the defendant knew of the drug. It is the prosecutor’s burden of proof to demonstrate this knowledge. This might happen when someone borrows a car, not knowing of illegal drugs stored in the trunk.
  • Illegal search: If the illegal drugs were not collected in a legal method, constructive possession charges cannot be given. This might include occurrences of unauthorized surveillance or planting evidence.
  • Lack of evidence of possession: A lack of evidence of possession is one of the most common defenses for drug crimes. For example, the police may arrest every passenger in a vehicle because they found drugs on one individual.
  • Legally allowed to carry: Some drugs, like Marijuana, are legal with a prescription. As long as the defendant followed all guidelines, constructive possession charges are not eligible.

Depending on the details of your case, there may be other defenses available. Work with a Boston drug defense lawyer today to evaluate your legal defense options.

When Should You Work With a Boston Drug Defense Lawyer?

It is important to evaluate your legal options if you are dealing with potential possession of a controlled substance or constructive possession legal charges. Depending on the charges’ details, you might be ordered to serve jail time and pay expensive fines. You could also be left with a permeant criminal record, which can affect your ability to gain employment.

When you work with a drug defense lawyer familiar with the Boston court system and the state of Massachusetts laws, you have the representation you need to build your defense. You may be able to agree to a plea bargain, which can reduce your charges and provide you with alternative consequences, like probation in lieu of jail time or fewer fines.

Toland Law, LLC