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Utah Drug Crimes Defense

Can I be charged with drug possession if someone else took the blame?

More than one person can be criminally convicted for possession of the same drugs or item of paraphernalia. Under Utah criminal law, even if one person takes responsibility or claims ownership of the drugs, it is possible for another person also to be charged with and convicted of possession of a controlled substance.

If you are facing criminal drug charges, an experienced Utah criminal defense attorney can ensure that your rights are protected. Stephen Howard has defended Utah drug charges ranging from first-degree felony distribution to misdemeanor marijuana possession charges. Contact us today for an initial consultation.

Scenarios in Which Two People Can Be Convicted

The most common scenarios in which two people could be charged with possession of the same drugs would likely involve either accomplice liability or constructive possession. To understand how this can happen, principles of "actual" and "constructive" possession should first be understood.

Utah Drug Laws - Actual v. Constructive Possession

Utah Drug Crimes Defense Attorney Salt LakeUtah law relating to drug possession involves two different kinds of possession: "actual" possession and "constructive" possession. Both kinds of possession carry the same potential consequences under Utah law. "Actual" possession is a relatively straightforward concept - someone has actual possession of drugs, in their hand, in their pants pocket, etc. Laws relating to constructive possession are more complicated, and can result in multiple individuals being charged with possession of the same drugs.

A person is considered to be in constructive possession of a controlled substance under Utah law if the person knows of the drugs, has both the ability and the intent to exercise control over the drugs. Because it is possible for two people to have both the ability and the intent to exercise control over the same item, two different people can both be charged with possessing the same drugs. Consider the following hypothetical examples:

Suppose that a police officer stops a vehicle for a traffic violation. The occupants of the vehicle are the driver/owner and a passenger in the front seat. During a search of the vehicle (assume for purposes of this example that the officer had sufficient probable cause or reasonable suspicion to justify the search), the officer finds a small bag of marijuana under the front passenger seat. Suppose next that the driver/owner of the vehicle tells the officer that he is aware of the marijuana in the back seat, and intends to smoke it when he gets home. The passenger invokes his right to remain silent and says nothing about the marijuana. The officer would likely charge the driver of the vehicle with possession of marijuana, even though the officer never observed the driver in actual possession of the marijuana.

Assume the same set of facts, but this time the passenger admits that he knows about the marijuana and that he intended to smoke it when he got home. This time, the driver invokes his Miranda rights and chooses to remain silent. Under these circumstances, the police would probably charge the passenger with drug possession under a theory of constructive possession.

Assume now that both the passenger and the driver admitted to the police that they knew about the marijuana and that they intended to split up the stash when they got home. In this situation, both the driver and the passenger could be charged with possession of a controlled substance. (It is also possible that both could be charged with possession with the intent to distribute, based on the argument that splitting the marijuana between the two people constituted "distribution" under Utah law.)

This time, assume that both the passenger and the driver invoked their constitutional privilege against self-incrimination and said nothing about the marijuana. This makes a charge of possession difficult to prove against either person. On the one hand, the passenger is sitting immediately above the marijuana. But there is no evidence to indicate he was aware of it's presence or intended to do anything with it. On the other hand, the owner/driver of the vehicle probably has a stronger claim of right to items found in his vehicle. But without any statements or admissions from the owner, it is difficult for a prosecutor to prove that he even knew about the marijuana. In either case, if a jury is left with a reasonable doubt about whether the driver or passenger was aware of and intended to exercise control over the marijuana, a not guilty verdict should be returned.

Consider one final scenario. Again, the police pull a vehicle over for a traffic violation. This time, the officer approaches the vehicle and sees the passenger holding a bag of marijuana in his hand. The passenger is in "actual" possession of the marijuana and could be charged. Next, assume that the driver of the vehicle tells the officer, "Don't charge him, that's my stuff." Now the driver has admitted to constructive possession of the marijuana. Both the driver and the passenger can now be charged with possession of marijuana.

The fact that the driver has claimed responsibility for the drugs does not negate the fact that the passenger was in actual possession of the drugs. If the elements of actual possession or constructive possession can be proven against both people, both can be charged.

Accomplice Liability for Drug Possession

Utah law provides a second alternative under which a person could be charged for drug possession even if another person had claimed responsibility. Under Utah's accomplice liability statute, a person can be convicted for a crime committed by another person under certain circumstances. If a defendant "solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct" that constitutes a criminal offense in Utah, then that defendant may be convicted for the crime committed by the other person.

A second key element of accomplice liability under Utah law is that the person charged as an accomplice must also act "with the mental state required for the commission of an offense." This "mental state" requirement can be particularly relevant in cases where possession with the intent to distribute is charged.

Penalties for Drug Crimes in Utah

Criminal Conviction ConsequencesThe penalties for drug crimes in Utah can be severe, and can include jail time, prison time, and potentially thousands of dollars in fines. The maximum potential penalties can depend on the specific drug involved as well as the conduct committed.

Possession of drug paraphernalia or possession of less than one ounce of marijuana are both considered class B misdemeanor charges, punishable by a maximum of up to 180 days in jail. Simple possession of small amounts of most other "street" drugs (e.g. cocaine, methamphetamine, or heroin) as well as the unlawful possession of many prescription medications will often be filed as class A misdemeanors, but can in some circumstances be enhanced to third degree felony charges, punishable by up to five years in prison. Distribution charges in most Utah drug cases begin at the second degree felony level, with a potential penalty of up to 15 years in prison. Marijuana distribution charges are the most common exception, usually being filed as third degree felonies. Enhancements for possession or distribution within a drug free zone or an enhancement for prior convictions can increase the penalties substantially.

In addition to jail, prison, and fines, a drug conviction in Utah can also carry collateral consequences. One of the most common consequences outside the courtroom is the loss of a driver license. Unless certain exceptions are met, the Utah Driver License Division is authorized to automatically suspend a defendant's driver license following notice of a drug conviction. A driver license suspension can often be avoided by negotiating a plea in abeyance, or by obtaining an order from the court with a formal finding that the drug offense did not involve a vehicle and that the defendant is engaged in drug treatment.

Finding a Utah Criminal Defense Attorney in Salt Lake City

If you are facing prosecution for drug possession or other crimes in Utah, an experienced criminal defense lawyer can help ensure that your rights are protected. Contact Salt Lake City criminal defense attorney Stephen Howard today to arrange for an initial consultation and analysis of your Utah criminal case.


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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
560 South 300 East, Suite 200, 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

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