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Constructive Possession - Utah Drug Crimes Defense

Can I be charged for drugs found in my car?

Many Utah controlled substance possession cases begin when a police officer finds drugs in a vehicle during a traffic stop. Often times, drugs or drug paraphernalia are found in a bag, backpack, purse, etc. that is tucked under a seat, on the floor, on an unoccupied seat, or even in a trunk. In cases where multiple people are present in a vehicle when drugs are found, questions arise as to who is guilty of possessing the drugs or paraphernalia.

If you are facing criminal prosecution for drug possession or paraphernalia charges, contact us today to see what the right attorney can do for you.

Clients sometimes report that police officers have tried to intimidate them by making assertions along the lines of, "If nobody admits that the drugs belong to them, I will just go ahead and charge everyone here with possession." Such a threat may convince a vehicle occupant to take responsibility for the drugs. But it is not an accurate statement of the law. Utah courts have held that, considered alone, co-occupancy of a vehicle is not sufficient to establish constructive possession of contraband. More evidence is required to establish the required connection between the defendant and the drugs or paraphernalia found by police.

Elements of Constructive Possession in Utah

The key elements that a prosecutor must prove in order to establish a sufficient nexus between a defendant and either drugs or paraphernalia are: 1) the power and ability to exercise control or dominion over the item; and 2) the intent to exercise control or dominion over the item. There are a variety of factors that can be considered by a court or by a jury in determining whether these elements have been proven. Some of these factors are discussed below.

Proximity to Drugs or Paraphernalia

A jury or court may consider the proximity of the defendant to the drugs or paraphernalia. For example, a jury may be more likely to find constructive possession when drugs are found on a seat immediately next to a defendant as compared with finding drugs on the back seat of a car when the defendant is a front seat passenger.

Other Drugs or Paraphernalia in Defendant's Possession

A jury or court may also consider whether the defendant was found in actual possession of other drugs or paraphernalia. For example, if a defendant is found to have rolling papers or a marijuana pipe in his pocket, a jury may find it more likely that the defendant also had constructive possession of marijuana found under his car seat.

Defendant's Drug History

A jury or court may consider whether a defendant has a prior history of drug use or drug possession convictions. For example, when a defendant has a past history of marijuana possession convictions, a jury may find it less likely that a defendant did not know what the “green leafy substance” was that was found on his kitchen table.

Ownership or Control of Area

A jury or court may also consider the ownership of the vehicle where drugs were found. For example, if police find drugs under the driver seat of a vehicle that is owned by the defendant, a jury may find it to be more likely that the defendant had constructive possession of the drugs or paraphernalia than if the police found items in a vehicle where the defendant was merely a passenger.

Exclusive Control of Area

A jury or court may consider whether the defendant had exclusive control over the area where drugs were found, as compared to a case where multiple people had access to the area. For example, a jury may be more likely to find constructive possession in a case where drugs were found on the kitchen counter of an apartment where defendant is the only resident and is home alone than if police found drugs on the counter of an apartment with multiple occupants.

Other Items Connected to Defendant

A jury or court may also consider whether other items connected to the defendant were found along with the drugs or paraphernalia. For example, a jury may be more likely to convict for constructive possession where police find drugs and paraphernalia in a backpack that also contains the defendant’s driver license, credit cards, and other identifying documents than if the drugs and paraphernalia were found in a backpack with no other items.

Other Individuals Present

A jury may consider whether other individuals were also found with drugs or paraphernalia. For example, a jury may be less likely to convict a defendant of possession of drug paraphernalia under a constructive possession theory when only a drug pipe is found in a vehicle, but another passenger is found to have marijuana, baggies, papers, and other paraphernalia in actual possession.

Other Incriminating Conduct

A jury or court may also consider a defendant’s incriminating behavior or conduct relevant to possible drug possession. For example, a jury may be more inclined to infer knowledge or intent relating to drugs or paraphernalia when a defendant runs from his car and police subsequently find drugs and paraphernalia in the vehicle.

Finding a Criminal Attorney for Utah Drug Charges

Utah Criminal Defense LawyerCriminal drug cases in Utah can include felony or misdemeanor charges. The consequences of conviction can be serious, including jail time, potential felony convictions, loss of a driver license, and more. Hiring the right criminal defense attorney can be the key to achieving the best results in your case. Contact us today to see how an experienced criminal lawyer can help you.


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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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