Salt Lake Criminal Defense Attorney Utah
Call Criminal Defense Attorney in Utah
Call Utah Criminal Lawyer
Veteran Criminal Defense Attorney / Former Prosecutor
Call 801-449-1409 now to see what our team can do for you.
Utah Criminal Defense Lawyer Salt Lake City

Canyons Law Group - Solutions Start HereSM

Contact Us

Internal Possession of Drugs - Utah Criminal Defense

Can I be charged with drug possession if I fail a drug test in Utah?

In Utah drug cases, the term "internal possession" is sometimes used to describe a drug possession case where drugs are found in a defendant's blood or other body fluids. The law on this subject has changed over time. But prosecutors may be able to file criminal charges in some circumstances based on internal possession of a controlled substance, as shown by the results of a failed drug test.

If you are being prosecuted for a drug offense or other criminal charges, it is critical to have the assistance of an experienced criminal defense attorney. Based in Salt Lake City, criminal lawyer Stephen Howard has spent his career defending the rights individuals facing criminal prosecution in Utah. Contact us now to arrange for a confidential consultation.

Drug Possession Types in Utah

Utah Prescription Fraud Defense AttorneyUnder Utah criminal law, drug possession can be charged as either a felony or misdemeanor. Utah's drug possession charges can be filed for illegal "street drugs" or for possession of many prescription drugs without a prescription.

Most drug possession cases in Utah involve questions of "actual possession" and "constructive possession." Actual possession typically involves drugs that are found under the person's immediate control (such as in a pocket of clothing worn by the person). Constructive possession cases commonly involve drugs found under a car seat, in a glove box, in a shared bedroom in a home or apartment, or in another location where it is not immediately clear who has control over the drugs.

Under provisions of the Utah Controlled Substances Act, a person can be charged with a crime for "any measurable controlled substance in [his or her] body." Some drug possession cases involve a controlled substance found concealed inside a body cavity. These cases are typically considered "actual possession" cases. An "internal possession" case typically will involve drug testing that reveals a controlled substance in the defendant's blood or other bodily fluids.

History of "Internal Possession" in Utah

Defense attorneys successfully challenged the concept of "internal possession" of a controlled substance in the Utah Court of Appeals case of State v. Ireland (2005 UT App 22). In this case, the defendant had been charged with possession or use of a controlled substance based on the presence of marijuana and methamphetamine in a blood sample drawn following a traffic accident. The trial court in Ireland ruled that the term "consumption" of a drug as used in the drug possession statute included the process of metabolizing the drug inside the human body. The Utah Court of Appeals reversed the conviction, ruling that the trial court had erred in interpreting the statute.

The Court of Appeals in Ireland instead held that the term "consumption" under Utah Code 58-37-2 refers to methods of introducing a controlled substance into the human body. In order for the trial court to have jurisdiction over the case, the prosecutor must have been able to present some evidence that the defendant had consumed the drugs within the territorial borders of the State of Utah. Without such evidence, the Court of Appeals ruled that the trial court had no jurisdiction over the alleged offense of possession or use of a controlled substance. The Court of Appeals' decision was later affirmed by the Utah Supreme Court (2006 UT 17).

While Ireland may have appeared to have been the end of internal possession cases in Utah, laws were soon changed by the Utah Legislature to restore internal possession as a viable criminal charge in Utah. In apparent response to the Ireland cases, the Legislature amended the definition of "consumption" under Utah Code 58-37-2 to include either "ingesting" a controlled substance or "having any measurable amount of a controlled substance in a person's body." (This definition specifically excludes metabolites from the definition of consumption.)

This change to the statute made it a crime in Utah for a person simply to have an unlawful controlled substance in his or her body. Internal possession cases are rarely filed in most Utah jurisdictions. And concerns continue to exist about the wisdom of this charge. In the Court of Appeals decision, Judge Thorne noted the "absurd result" possible under an internal possession scheme, where a person who is walking down the sidewalk with a controlled substance in his system would be subject to felony charges and potential prison time, while a person with the same amount of drugs in his system who chose to put himself behind the wheel of a car would face a less serious misdemeanor charge.

Internal Possession as a "Status" Crime

Internal possession cases also raise questions regarding the constitutionality of so-called "status"crimes. The Utah Supreme Court addressed this issue in the case of State v. Robinson (2011 UT 30), issued on June 10, 2011. The Utah Supreme Court affirmed a district court decision that held that charging a person with possession of a controlled substance based on a failed drug test did not violate constitutional protections regarding "status" crimes.

The defense in Robinson argued that the new statute created a "status" crime by punishing a person who merely has the status of having previously consumed drugs rather than the act of consuming or using drugs. The thrust of the defense argument in Robinson was that a person who had consumed drugs previously, perhaps even in another jurisdiction where such consumption was legal, could nevertheless be punished once coming to Utah on the basis of internal metabolization processes over which the person had no conscious or intentional control. Prosecutors countered by arguing that because the term "consumption" includes the presence of a measurable controlled substance, and that the period of metabolization and intoxication is perhaps the most dangerous period of drug use.

The Utah Supreme Court noted that the statute does not criminalize the mere presence of a controlled substance metabolite in a person's blood, but instead criminalizes only the presence of the active controlled substance itself. The Court further noted that if mere metabolite were criminalized, then the defense claim of an unconstitutional "status" crime might have more merit. But because the statute specifically excludes mere metabolite from prosecution, the Court held that the statute did not create an unconstitutional "status" crime.

Distinguishing Controlled Substances from Metabolites

Some Utah criminal statutes make no distinction between an active controlled substance and a controlled substance metabolite. For example, Utah's DUI/Metabolite statute makes it a crime to drive or be in actual physical control of a motor vehicle with any measurable amount of an illegal controlled substance OR controlled substance metabolite in the driver's system.

The Utah Supreme Court's decision in Robinson seems to leave open the question of whether Utah's DUI/Metabolite law creates an unconstitutional "status" crime when enforced against a person who drives only with the inactive metabolite of a controlled substance in his or her system. This is a question that has yet to be resolved by Utah's appellate courts.

Finding a Criminal Defense Attorney in Salt Lake City

Utah Criminal LawyerStephen Howard is an experienced criminal defense attorney in Salt Lake City, Utah. He is one of only a few criminal defense attorneys in private practice in Utah who has extensive experience inside Utah's felony drug court system.  

If you are facing prosecution for drugs or other criminal charges, contact us now to schedule a confidential initial consultation.

RELATED CRIMINAL DEFENSE TOPICS


Best Rating
Make a Payment to Your Account
Contact a Lawyer
** All fields are required. **
Name: Email: Phone: Describe your legal needs here:
I accept the disclaimer below.
Disclaimer: No attorney-client relationship is established by the use of this form. Confidential or time-sensitive information should not be submitted through this form. By clicking 'submit' I am only requesting that I be contacted for the purpose of obtaining legal services.

This form protected by reCAPTCHA.

  • Selected Victories
  • Utah Burglary Defense Attorney Not Guilty - Client was charged with second-degree felony residential burglary and facing potential prison time. Investigation by the defense revealed multiple witnesses, missed by police and prosecutors, who supported client's claim of innocence. At trial, the jury returned a "not guilty" verdict on all charges.
  • Drug Crimes Defense Attorney Utah Dismissed - Client facing first-degree felony drug distribution charge and potential life in prison. Charges were based on allegations that client had sold drugs to an undercover police officer, then made a full confession. Successful mitigation work resulted in negotiated offer of misdemeanor plea-in-abeyance and ultimate dismissal of case.
  • Felony Attorney Utah Dismissed - Client facing first-degree felony charge and possible life in prison for child kidnapping. Full defense analysis of the case revealed critical legal flaws in the prosecution's case. When confronted with the defense legal analysis, the prosecutor agreed to dismiss the case outright without trial.
  • Violent Crimes Assalt Defense UtahDismissed at Preliminary Hearing - Client charged with aggravated robbery and facing life in prison. Full case analysis and consultation with client allowed the development of a strong defense strategy. Effective cross-examination of the alleged victim at the preliminary hearing resulted in an outright dismissal of all charges by the judge.
  • Utah Probation Attorney Released - Client absconded for more than 10 years from felony probation with Adult Probation and Parole. At an order to show cause hearing, prosecutor argued aggressively for prison. Based on effective mitigation efforts by the defense, the judge agreed to release client without further jail.
  • Recent Posts
  • What to Do When Arrested for DUI What should I do if I am arrested for DUI? - Many DUI cases begin as minor traffic stops. But the consequences of a DUI conviction are much more serious than an ordinary traffic citation. If you are pulled over for a suspected DUI, you have specific important constitutional and statutory rights that can protect your. . . .
  • Utah Misdemeanor Attorney Salt Lake Can I handle a Utah misdemeanor from out-of-state? - Even if you do not intend to take your case to trial, a misdemeanor criminal offense in Utah can require multiple court appearances to reach a resolution. If you have been charged with a crime in Utah, but are not a Utah resident, an experienced criminal defense attorney may be able to help you resolve the case without returning to the state. . . .
Best Criminal Defense Strategy

Aggressive is good. Effective is better. The best defense strategy in any given criminal case can require in-depth analysis of the facts and a thorough understanding of applicable statutes, case law, and complex procedural and evidentiary rules. Having an experienced attorney on your side....

Strategy »
Salt Lake Criminal Defense Attorney Profile Utah

Choosing the best criminal defense attorney for your Utah criminal case can be the single most important decision you make. Before hiring any lawyer, there are a number of important factors to consider. The person you select as your criminal defense attorney will be responsible to defend your case and protect your rights....

Experience »
Conviction Consequences - Utah Criminal Defense

In Utah, even a "minor" misdemeanor conviction carries the potential for jail time and significant fines. A felony conviction carries the potential of lengthy prison terms and the various consequences that come with being labeled as a convicted felon. Never plead guilty without first finding out....

Consequences »
Utah Criminal Defense Attorney - Reasons to Hope

Being charged with a crime is not the same as being convicted. But just being charged can affect more than you may have imagined - jail, job, family, bills, rent or mortgage. It can feel like everything has gone wrong, and may you wonder if anything can go right. But facing criminal prosecution does not mean giving up hope....

Reasons to Hope »
Home | Attorney Profile | Case Results | Criminal Code | FAQ | Legal Resources | Defense Strategy | Contact Us

Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
340 East 400 South, Suite 25, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

The materials in this website are intended for informational purposes only, and are not legal advice. Viewing or responding to materials in this site does not create an attorney-client relationship. Read Full Disclaimer.