What’s the Difference Between Actual and Constructive Drug Possession in Utah?

Salt Lake City criminal lawyer

Drug possession is not a blanket charge, and can be broken down in a few different ways. Two of the categories drug charges can be placed into include actual possession, and constructive possession. What’s the difference, and could the classification affect your charges?  Salt Lake City drug defense lawyer Darwin Overson explains.

Handcuffs, Medicine Bottle and Pills Under Spot Light Abstract.

You Can Be Charged with Criminal Possession… Even if There Are No Drugs on Your Person

You don’t actually need to have any drugs on your physical person in order to be charged with drug possession in the state of Utah.  All that matters is that the prosecutor can prove that you had both the means and the intention to control drugs (or drug paraphernalia), such as keeping drugs nearby while waiting to make a sale.  This concept is known as “constructive possession,” as opposed to a suspect allegedly having drugs on their person or in their bag or purse, which is known as “actual possession.”

Because constructive possession is more intangible and abstract in nature than actual physical possession, the courts must rely on a few different forms of evidence against the defendant.  For example, the courts may consider factors such as whether or not you made any incriminating statements (which reinforces the idea that it’s best not to speak with police until you’ve consulted a defense attorney), whether you have a record of drug crimes, how near you were physically located to the area in which the transaction(s) occurred, and whether you were acting suspiciously (such as casing an area or showing signs of drug intoxication, e.g. aggressive or erratic behavior).

innocent or guilty, presumption of innocence until proven guilt

State v. Cardona-Gueton: Proving a “Sufficient Nexus”

While suspicious behavior can be a major contributing factor, suspicious circumstances alone are not sufficient to prove that a defendant is truly guilty of constructive possession.  As with other crimes, the prosecuting attorney must be able to prove beyond a reasonable doubt that you, as the defendant, were exercising control over the narcotics in question.  In the 2012 case of State v. Cardona-Gueton, the Utah Court of Appeals ruled the following:

“Constructive possession must be proven by a sufficient nexus between the defendant and the drugs to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs.”

In that case, the sequence of events was that:

  1. Rolando Cardona-Gueton was apprehended by police officers who suspected he had been selling heroin, cocaine, and meth.
  2. As the officers approached Cardona-Gueton, he was drinking from a water bottle which had been attached to a bicycle situated next to Cardona-Gueton.
  3. The police asked Cardona-Gueton if the bicycle was his, which he confirmed.
  4. The police then searched over the bicycle, and found drugs hidden inside.
  5. Cardona-Gueton had an amount of money which matched what he would have earned from the suspected sales.

Cardona-Gueton did not have drugs on his person, but the link between his ownership of the money, the bicycle, and the presence of the contraband inside, combined with the fact that he had been witnessed behaving suspiciously by the police, ultimately added up to prove constructive possession. This would be the “sufficient nexus.”

Airport canine. Dog sniffs out drugs or bomb in a luggage.

Possible Defenses Against Constructive Possession Charges in Utah

As intent is also a key factor in proving guilt, it must also be established that you planned to “exercise control” over the contraband in question.  If were not in a position where you could have exercised control — perhaps because you weren’t even present when the drugs were left in a certain room or vehicle, or because you can’t identify a substance and didn’t even know what it was, or perhaps because you’re a single employee at a vast business with hundreds of people filtering in and out of the building — that may be able to help bolster your defense.  In this way, the complexity of proving constructive possession can sometimes work in the defendant’s favor.

In terms of the potential penalties, it doesn’t make much difference whether you are convicted of actual or constructive possession.  In either case, you would be facing the same amount of jail time and restitution.  Factors which can make sentencing worse, which are known as aggravating factors, include selling drugs in a school zone, committing child endangerment, weapons possession, or having a history of prior offenses.  As the quantity of drug increases, the penalties become harsher, and a misdemeanor could even become a felony.

If you’ve been charged with constructive or actual possession in Utah, you need an aggressive criminal defense lawyer on your side.  To set up a free and private case evaluation, call attorney Darwin Overson at (801) 758-2287 today.

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