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What is Constructive Possession in Regards to a Drug Case?


Possession is one of the most common and serious drug crimes here in Texas. And because a conviction can carry serious penalties, ranging from fines to jail time, it’s essential that you get an attorney if you’ve been charged with possession.

In Texas, there are two basic types of possession.

Actual vs. Constructive Possession

Actual possession of drugs means law enforcement found drugs on you, like in your hands or pants pocket. It also means that no one else has equal access to the drugs that were found.

Constructive possession occurs when law enforcement finds drugs in your general area, but not on you. Multiple other people would also have access to the drugs. Take, for example, a person who is in their friend’s living room when police come in with a search warrant and find drugs. Another example would be police finding drugs in the glove compartment of a car you were riding in.

In order to convict someone of constructive possession, the state has to prove that they:

  • Knew the drugs were present.
  • Knew the drugs were illegal.
  • Had “control” over the drugs.

In cases involving constructive possession, simply being near illegal drugs is not enough to prove that you were the one in control of them. In cases like these, the burden of proving each of the above lies on the state.

Potential Defenses for Constructive Possession

Depending on the details of your case, you may be able to use one or several of the below defenses:

  • You (the defendant) had no knowledge of the drugs.
    • For example, you borrowed a friend’s car and they had drugs in their trunk.
  • Law enforcement conducted an illegal search.
    • For example, police did not have a warrant or probable cause to search your possessions.
  • Lack of evidence of possession. There is not enough evidence to prove that you had control over the illegal drugs.
    • For example, arresting everyone in a living room where drugs are found.

Contact Law Office of Patrick J. McLain, PLLCtoday to schedule a consultation with an accomplished Dallas federal criminal defense lawyer. Our phones are answered at any time of day or night so that our clients can get in touch with us 24/7 at (214) 238-9392

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