I was arrested for possession of a controlled substance, but the drugs were not mine. What should I do?

I frequently am contacted by potential criminal defense clients that want to know why they have been charged with drug possession when the drugs they are alleged to have possessed were not theirs.

Under Colorado law, possession can be either actual or constructive. Possession is actual where the defendant personally has custody of the drugs. Constructive possession, however, is when the drugs aren’t specifically in the possession of the defendant – so, not in his pocket, or backpack, or wallet. The question then becomes whether the drugs were nearby, and if so, how nearby they were at the time they were located by law enforcement. Were they close enough to you that it can be said that you exercised control over the drugs?

The truth is that law enforcement may not even get that far. The routine response to locating drugs in a car tends to be that all occupants are charged with possession, and the same is true of drugs located in a shared residence – unless, perhaps the drugs are found on someone’s person or somewhere very personal like a woman’s handbag.

Why is this the case? For one, it is certainly easier for police officers to charge everyone than to take the time necessary to figure out exactly what occurred and who is actually responsible. Second, charging everyone may result in the defendants turning against each other and being more willing to provide helpful information to the prosecutor in exchange for a reduced sentence and more favorable plea bargain.

There really is no bright line rule providing clear guidance as to what facts and circumstances are sufficient to constitute constructive possession. If you have been charged with drug possession based upon a theory of constructive possession, it is important to speak with a drug crimes defense lawyer to discuss your case as soon as possible, because the mere fact that the drugs did not belong to you does not mean your case will be dropped.