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How the Difference Between Constructive and Actual Drug Possession Affects Your Case

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You can’t believe that you are going to have to go to court to fight drug possession charges. Even though drugs were found in your home, the police have no proof that they belong to you—but you’re not sure the judge will see it your way. Is there any hope for fighting the charges if no drugs were found on your person?

The Difference Between Actual and Constructive Drug Possession Charges

There are typically two kinds of drug possession charges: actual possession and constructive possession. In both cases, possession means control over illegal or dangerous substances, such as cocaine, marijuana, ecstasy, or prescription medication. Possession can also include access to paraphernalia or devices that are commonly used for the consumption or creation of illegal drugs.

In South Dakota, the rules for convicting a person for drug possession involve:

  • Actual possession. In order to be convicted of actual possession, a drug must be found in a person’s hands, pockets, bag, in a container on the person, or so close to the person it can be considered to be within reach.
  • Constructive possession. You can also be arrested if drugs or contraband materials are not directly on your person. In a constructive possession charge, a person must have been aware of the presence of the illicit substances and have had the ability to exercise control over it. This law is often used if drugs are found on your property, such as in your car or garage.
  • Multiple parties. The state is responsible for proving that you were the one in control of the illicit substance. If multiple people have access to where the drugs were found, you have a much stronger basis to refute the charges against you. For instance, if you live with several roommates and there are drugs in the house, or the substance was found in a public place, the state will need compelling evidence to show that you were the one who purchased, obtained, or used the drugs.

If you are facing charges of drug possession, it is vital that you speak with a criminal defense lawyer who has experience handling drug possession cases. You should only speak with investigators and law enforcement officers in the presence of your lawyer to ensure that your rights are protected. Call Zimmer, Duncan and Cole, LLP today at 888-733-2992 to have us examine the details of your case and explain your legal options.


Category: Criminal Defense


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