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Are those really your drugs?

Facing drug charges in Ohio can be a very frightening experience indeed. Depending on the precise charges you face, a conviction could cost you your freedom for a significant period of time.

It goes without saying, however, that the prosecutor must first prove that you possessed, owned and/or controlled the drugs in question before the jury can convict you of any drug crime. The constructive possession doctrine could make those drug charges go away.

Constructive possession

The prosecutor has two basic ways in which (s)he can prove to a jury that the drugs in question belonged to you. The first way is actual possession, which is reasonably simple to prove. Here the law enforcement officer testifies that (s)he recovered the drugs from you personally, such as by finding them in one of your pockets. Assuming the officer is a credible witness and the jury believes his or her testimony, your conviction unfortunately is pretty well assured.

In contrast, constructive possession relies on circumstantial evidence only. Here the officer did not recover the drugs from your person. Instead, (s)he found them in your home, your car, or somewhere else that you frequent. The officer can only testify as to the circumstances surrounding the drug recovery. If his or her testimony is compelling enough, the jury can make the reasonable inference that the drugs belonged to you. If not, the prosecutor faces a huge problem.

Constructive possession examples

A couple of examples should help you more fully understand constructive possession. In the first example, the following four facts exist:

  1. An officer testifies that (s)he pulled you over on a traffic stop.
  2. (S)he testifies that you were driving the car and that you had three passengers.
  3. (S)he testifies that (s)he legally searched your car.
  4. (S)he testifies that you voluntarily gave him or her the key to your locked console, after which (s)he found the drugs in it.

Based on this strong circumstantial evidence, the jury likely will convict you. Why? Because the fact that you had the only key to your locked console makes it easy for the jury to reasonably infer that you owned, or at least controlled, the drugs hidden there.

For the second example, the first three facts remain the same. The fourth fact, however, changes dramatically. Now the officer testifies that (s)he found the drugs in your unlocked console. What reasonable inference can the jury now make with regard to the ownership of the drugs? None. All four of you in your car had equal access to your unlocked console, as well as equal opportunity to hide the drugs in it. Consequently the jury cannot possibly determine which of you owned or controlled the drugs. They must therefore acquit you.

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