What is “Possession” of an Illegal Drug?

A Washington Criminal Defense Attorney’s Opinion on what Factors are Considered in Proving Actual or Constructive Possession of an Illegal Drug | Controlled Substance. What is Possession of Illegal Drug | Actual or Constructive Possession of a Controlled Substance or Illegal Drug in Washington State. |

Based on our experience as lawyers working in the criminal defense arena, crimes based on Possession of a Controlled Substance or Illegal Drug are one of the most common and prolific criminal charges in the entire Washington State criminal justice system.  If you are caught with illegal drugs or a controlled substance and charged with possession of that drug or controlled substance, there are two ways a prosecuting attorney can try to establish possession: actual possession or constructive possession.  

If the State has a good faith belief that they can establish either actual or constructive possession of an illegal drug beyond a reasonable doubt you will be charged with some sort of criminal drug offense or crime.  Keep in mind Unwitting Possession is an affirmative defense available in drug cases which everyone should be aware of.  Read our section on unwitting possession for more information on this topic.

If you have been charged with a possession based drug offense then you have been contacted by law enforcement.  ANY police contact should be treated as a criminal investigation and you should not give a statement until you have spoken with your lawyer.  If you or a family member was arrested, know a judge will review whether you should have been arrested within 48 hours, and you will be charged or released within 72 hours so be calm.

So what is Constructive or Actual Possession?  

Washington law states: It is a crime for any person to possess a controlled substance or illegal drug except as authorized by law.  Note that possession offenses are strict liability offenses so no intent to possess the illegal drugs is required for a conviction to be won by a prosecuting attorney.  If the prosecutor is able to establish possession, you will be charged and they do not have to prove you intended to possess the drugs although, again, unwitting possession is an affirmative offense.

Possession of Controlled Substance—Elements of Criminal Offense

In general, to convict an individual of the crime of possession of a controlled substance in Washington, the prosecuting attorney must prove beyond a reasonable doubt the following elements of the crime:

(1) That on or about a certain date, the person charged with the crime possessed a particular kind of controlled substance; and (2) That this act occurred in the State of Washington.

Actual possession occurs when the item is in the actual physical custody of the person charged with possession.  Actual possession is when you have the contraband/drugs on your person.  As criminal defense attorneys, typical circumstances we see are: the drugs are in your backpack, or in your wallet if it is on your person, or your purse if you are carrying it when approached by law enforcement, or in your clothing such as a coat, hoodie, sweater, under a ski cap or hat you are wearing, etc.  You possess the drugs and the drugs are found on you.  It becomes far more difficult to try and place the blame elsewhere as you are in essence, caught red handed with them.  You may have picked up someone else’s backpack or perhaps their coat (See our page on Unwitting Possession) but then that individual needs to come into law enforcement and tell them it’s theirs or your claim becomes suspect.  Sometimes this works and you get the charges dropped and other times it simply gets the other individual charged as an accomplice or co-defendant.  Deciding how to proceed in a drug case in Washington is not simple … we make it our business to serve, advise and counsel clients and their families in these kinds of situations because the decisions are not easy and making a plan takes time and experience.

Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. Constructive possession is established if a person has dominion and control over the drugs in question. See, e.g., State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969); State v. Chavez, 138 Wn.App. 29, 156 P.3d 246 (2007). Constructive possession is when you are in a position whereby you could have dominion and control or have access the contraband fairly easily.  As criminal defense attorneys | lawyers, we have seen the following examples of constructive possession: the police are behind/coming up to you in your car or apartment and you may not have any issues with them being there, however, if they get into the car and look under the seat, the glove box, arguably the trunk if you consent to the search, and find drugs.  Another circumstance is when you either consent or the cops have a warrant to get into your apartment, home, boat, etc. and find drugs in the drawers or in your room, kitchen, bathroom, or bedroom, etc.  You can expect that you will be charged with a possession offense.  Constructive possession is just as damning as actual possession as it is going to cause you the same amount of trouble and subject you to the same penalties.

So what is Dominion and Control?  This is where it can get confusing.

Washington Criminal Jury Instructions have a broad definition of what is Dominion and Control  and that is where things get sticky.  Although a trial court is not required to define “dominion and control” for the jury, State v. Amezola, 49 Wn.App. 78, 741 P.2d 1024 (1987), many jurors find the phrase confusing and would benefit from further instruction as to its meaning.  This ruling was meant for the benefit of the jurors but then you have the prosecutor, defense attorney, and in some circumstances the court involved in the process of negotiating a reasonable instruction all parties can agree upon and it is not always the easiest of processes.  This is an area of the law where it can get very confusing and the courts have been all over the board in their rulings.  This is an area where you need an experienced and aggressive advocate in your corner who knows the law, the process and how judges and prosecuting attorneys think.  

Consultations are free but a poor choice in counsel is not.  Call us at 206-708-7852 to set up an appointment to discuss your situation.

Dominion and control—Lack of a direct definition. Washington State’s case law has not developed a direct definition for the concept of dominion and control in possession cases.  Instead, the appellate opinions tend to analyze this issue by:

(1) indicating that dominion and control is evaluated based on the totality of the circumstances;

(2) listing various factors that may be used in evaluating the phrase; and

(3) deciding whether the evidence is sufficient in the particular case.  There is not a consistent definition that can be incorporated into a jury instruction or explain to a client and currently it appears to be fact dependent on a case-by-case basis leaving the criminal defense attorneys and prosecuting attorneys to argue over a definition the court will accept.  

As you can see, drug possession cases involve a number of factors and issues that need to be considered early on in the negotiation process and in fact require real lawyering of the issues by your criminal defense attorney | lawyer.  There is a lot to consider and information to be gathered.  Witness statements may be necessary as well as subpoenas for video and 911 calls.  When you consider this, along with the search and seizure issues, potential enhancements, sentencing alternatives, and other issues involved in a drug offense you can see why having an aggressive and experienced advocate in your corner can make all the difference.

If you are arrested or even contacted by law enforcement about a drug offense, request a criminal defense attorney immediately and do not talk to law enforcement.  Keep telling them you want an attorney or simply remain silent until one is provided after your initial request. If charges have been filed, this becomes even more important. Let your lawyer talk to law enforcement not you or your family members.  A better use of time is as soon as possible, sit down and write everything you remember about the incident from what you were doing, wearing, walking et cetera just before the cops arrived up to the point where you were arrested and booked into jail.  If the cops said anything or promised you anything, be sure to include that in the statement.  This is important.  We have used such data as leverage in negotiations with the prosecutors.

An experienced defense attorney, such as those in our firm, will help you navigate thru the criminal system to get you the best possible result.  You need someone who knows the nuances of the system and the laws, the methods of getting the best offers and someone that has experience in arguing motions on search and seizure and winning those motions.  Winning those motions will result in evidence being suppressed or excluded which can result in a dismissal.  You need an attorney who knows what experts may be useful in establishing your defense.  If the State wants to go to trial, you need an attorney who will make them earn their conviction and argue to win.  You never know what a jury will focus on and we have won a number of cases or received a hung-jury typically resulting in a better deal for our clients based on what the jury felt was the most important issue.   Juries keep the system “honest” and you want a lawyer and firm who understand this and represent a credible trial threat.

The criminal defense lawyers | attorneys in our office have handled an enormous number of complicated cases in the criminal arena over the course of our lengthy criminal law careers. We are and have a unique blend of courtroom experience, knowledge, skills and temperament. Our lawyers know that criminal cases are rarely as simple as the police reports claim.  Our clients hire us because they want staunch and effective counsel who take the time to make sure their rights are protected.  Being charged with any criminal drug offense is a serious charge and carries a heavy penalty not only for the individual charged but for the family as well. Knowing how to navigate the legal system and criminal justice process is the most important skill/asset you can possess when defending yourself against a drug offense.  Whether our role is as legal counsel, negotiator, or litigator, we have years of experience fighting and resolving cases with our clients’ best interests in mind.  Choosing the right counsel for your case is essential.   

With a successful background in law, courtrooms, wrestling, rugby and jujitsu, Robert Rhodes’s nature is well-suited for argument and litigation. Mr. Rhodes knows how to talk clearly and directly to his clients, adversaries and to the Court. His common sense, straight talk and experience put his clients immediately at ease. Mr. Rhodes does not do anything half way and you will sense this when you meet him. Read more >>

Robert Rhodes

With a successful background in law, courtrooms, wrestling, rugby and jujitsu, Robert Rhodes’s nature is well-suited for argument and litigation. Mr. Rhodes knows how to talk clearly and directly to his clients, adversaries and to the Court. His common sense, straight talk and experience put his clients immediately at ease. Mr. Rhodes does not do anything half way and you will sense this when you meet him. Read more >>

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