'Constructive Possession' in Drug Possession Crimes

Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail.  There seems to be an understanding that drug offenders need treatment rather than punishment.

Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.

Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."

"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:

"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."

"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.

Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.

In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.

Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions. 

Deferring A Drug Conviction

Drug crimes provide an interesting study in social justice. While few people will seriously argue that drug addiction is good for society, that the commercial side of the drug business is acceptable as it currently operates, or that the violence often surrounding the importation of illegal drugs is sustainable, there is strong debate about how best to address these issues; particularly from a criminal justice perspective. For many years there has been a movement towards approaching the drug problem from a health and welfare perspective rather than a purely retributive criminal angle. Recently, this movement has gained substantive momentum. Today, twenty states plus the District of Columbia have laws legalizing at least some forms of marijuana use and two states, Washington and Colorado, have legalized the drug for recreational use. Many more states have developed programs to help drug offenders and abusers rather than simply punishing them for their addictions; California is among this latter group.

Penal Code 1000

Faced with a severely overcrowded prison system and budget difficulties, California has developed a program under which drug offenders can obtain help and treatment rather than a criminal record and a jail sentence. Authorized by Penal Code 1000, California courts have the authority to delay a criminal drug conviction pending successful completion of an approved drug treatment program; successful graduates of such a program can then have their charges dismissed. This is known as a Deferred Entry of Judgment and typically requires a defendant to plead guilty to the charges prior to entering the program. Failure to complete the program will result in those charges being finalized in a conviction.

Who is Eligible?

To participate in a DEJ program, defendants must satisfy two broad requirements. First, the crime with which the defendant has been charged must match one of the several crimes specifically listed in Penal Code 1000. Generally this means that the drug crime in question must be related to personal use or possession, as opposed to possession for sale, and there must be no allegations of violence associated with the drug charge. Second, a defendant must be personally eligible, meaning that they must not have certain other drug related convictions on record, must not have participated in a DEJ program within the last five years, must be in compliance with any parole or probation requirements, and must not have certain other felony convictions on record.

Treatment

During the program the court will determine which course of treatment is best for the defendant. This process will take into consideration factors such as the defendant’s age, education, employment situation, community and family situation, and drug history. Failing to fully participate in the program can result in the court entering judgment against the defendant which will result in a sentencing hearing to determine the appropriate punishment for the crimes charged.
Success

After a defendant successfully completes a DEJ program, the court will set aside the charges. This means that successful program graduates can truthfully state that they have never been convicted of the crime in question and that the associated arrest record cannot be used against the individual with regard to employment or professional licensure or certification.

Other Alternatives

Penal Code 1000 is only one of several different alternatives for drug offenders. While it is arguably the best and broadest, not everyone is eligible for a DEJ program and, as such, some defendant’s must rely on other options. These options include the Proposition 36 drug treatment program or entry into California’s Drug Court; both of which differ in several ways from the DEJ program discussed above. Specifically, Proposition 36 programs do not conclude with an automatic dismissal of charges while in drug court there is no requirement that a defendant plead guilty before participating.
Call us for help

Because there are multiple options that apply to different types of crimes and circumstances, it’s best to seek professional legal help before attempting to negotiate any type of drug crimes alternative treatment option. If you are facing a drug related crime, don’t wait to contact us as any delay may jeopardize your legal rights.