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Understanding Actual vs. Constructive Possession

If you are facing drug possession charges in North Carolina, you may be concerned about what comes next. North Carolina has fairly strict possession laws and penalties compared to other states. Defending against these charges is critical, as you may be facing steep penalties, jail time, and long-term consequences if convicted.

Depending on the circumstances of your case, possession can be charged as either a misdemeanor or a felony. However, whether the possession was actual or constructive can correlate to the strength of the state’s case against you. For instance, the state will have a stronger claim for actual possession than constructive possession. This may impact their decision to move forward with a trial as opposed to offering a plea bargain for a lower charge.

Whether you were found to have actual or constructive possession can impact the legal strategy for your case and how you choose to defend against the charges. It is possible to argue that you only had constructive possession even in cases in which the state claims your possession was actual. For this reason, understanding the difference is critical in how you choose to move forward in your case. A North Carolina criminal defense attorney can help you come up with a personalized strategy.

Actual Possession vs. Constructive Possession

Possession is generally considered to be actual in cases in which drugs are found on your physical person, such as in your pocket. Additionally, actual possession can be found when no other parties or persons can be said to have had equal access to the drugs, and where you had the intent to possess the drug.

On the other hand, possession is generally considered constructive when drugs are found in your vicinity or where you (and others) had the ability to access the drugs. For instance, if you were riding in a car with multiple other passengers and drugs were found in the center console, it is likely that everyone in the vehicle would be charged with constructive possession (assuming no individual took ownership of the drugs). A criminal defense attorney could then help you argue that you had no knowledge of the drugs in the vehicle. On the other hand, if drugs were found in the center console of a car that you owned and of which you were the sole occupant and operator, the state would have a much stronger claim for constructive or actual possession.

Defending Against Possession

If you have been charged with possession, the best defense will rest on the specific circumstances of your case. For instance, if you were charged with actual possession after drugs were found in the pocket of a jacket you had just purchased at a thrift store or had borrowed from a friend, and you had no knowledge of them, this may be a defense. Knowledge and intent are relevant and lack of these elements weakens the state’s case against you. If you have been charged with constructive possession for drugs found in a vehicle that did not belong to you, your lawyer will likely emphasize the lack of ownership, and will also look to who was in control of the vehicle and how many individuals were in the vehicle and had access to it. Additionally, it may be possible to invalidate the actual stop, search, and/or seizure as illegal or unconstitutional.

Talk to a North Carolina Criminal Defense Lawyer

If you have been charged with possession of an illegal substance in North Carolina, it is important to retain experienced legal counsel as soon as possible. Contact the criminal defense attorneys at Coastal South Law today to schedule a consultation.

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