Unwitting Possession

What is Unwitting Possession in a Drug Case | Controlled Substance in Washington State | A Washington Criminal Defense Attorney’s Opinion on the Affirmative Defense of Unwitting Possession and what Factors are Considered in these Kinds of Cases

As criminal defense attorneys, we know that unwitting possession is an affirmative defense to a criminal charge of possessing an illegal drug charge per Washington State law.  A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in his| her possession or did not know the nature of the substance.

In any affirmative defense case, it is important that clients recognize the two set process that is involved in your criminal defense lawyer | attorney putting together a defense.  First, in order to be able to raise this defense in a criminal case (it is not automatic) the burden is on your criminal defense lawyer and their client to prove by a preponderance of the evidence that the substance was possessed unwittingly. Once a judge or jury is convinced by a preponderance of the evidence that the possession was unwitting (again, it is not that it might have been … the standard is preponderance of the evidence), then this affirmative defense, and the evidence supporting it, may be presented in court.  It is important to recognize that unless an unwitting defense is “proved up” by a preponderance of the evidence, you will not get the jury instruction.  Any seasoned defense attorney who handles criminal drug cases knows that the defense to possession based drug crimes are case by case and very fact specific.  Once the first step is completed and the defense is available for the defense lawyer and their client to argue, it becomes the prosecuting attorney’s burden to prove beyond a reasonable doubt that the possession was in fact not unwitting.

Unwitting possession is an affirmative defense that can lead to an acquittal if the prosecutor decides to proceed with the case and you can convince the judge, (in a bench trial) or jury otherwise.  In our opinion, Footnote 5 of the 2009 Washington Appellate Court Division 1 decision in State v. Garbaccio, 214 P.3d 168, 21, provides a thorough analysis of the “unwitting  possession”  defense and when it is appropriate in a jury instruction:

“The defense of “unwitting” possession may be supported by a showing that the defendant did not know he was in possession of the contraband.  Citing State v. Cleppe, 96 Wash.2d 373 at 381, 635 P.2d 435.  See e.g., State v. Bailey, 41 Wash.App. 724, 728, 706 p.2d 229 (1985) holding: “the trial court properly instructed the jury that possession was not unlawful if the defendant did not know drug was in his or her possession”.  The defendant may also show that he did not know the nature of the contraband he possessed. Citing State v. Adame, 56 Wash.App. 803, 806, 785 P.2d 1144 holding “the trial court correctly instructed the jury that possession was unwitting if the person did not know that the substance was present or did not know the nature of the substance, review denied, 114 Wash.2d 1030, 793 P.2d 976 (1990).  If the defendant affirmatively establishes that “his” ‘possession’ was unwitting, then he had no possession for which the law will convict.” Cleppe, (96 Wash.2d) at 381, 635 P.2d 435.  See also State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994).”

Unwitting possession cases are very fact sensitive and therefore it becomes very important that you follow our advice on giving statements to the police.  Also recognize that the defense of unwitting possession is a defense against criminal charges, not necessarily civil administrative actions, so if you have a professional license issued by a Washington State or Federal agency (we typically see health care licenses), make sure your lawyer understands this problem and can handle it.  

The criminal defense lawyers | attorneys in our office have handled an enormous number of complicated drug 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.   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. 

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 >>