Today we’re talking about possession of cocaine and what your options are if you’re facing this charge. Hi, my name is Dale Savage and I’m a criminal defense attorney here in Charleston, South Carolina and in this state for the prosecutor to establish a possession of cocaine charge, they have to show that you are in possession of less than one gram of a controlled substance and in this case that substances cocaine.
What is Cocaine Possession?
For a first offense, it’s a misdemeanor offense and you are facing up to three years in prison. For a second offense, it’s a felony and you’re facing up to five years in prison. And for a third offense, it’s a felony and you’re facing up to 10 years in prison. As you can see, even though probation is an option on all three of these, you’re certainly facing significant prison time as well, so they do need to be taken seriously.
Two Ways to mount a Defense
One of the most important things that is worthy of noting in possession charges is that even if you only are found with a trace amount of cocaine, meaning that the amount is so small that it’s insufficient to be weighed, you can still be charged with possession of cocaine. When defending these types of cases, there’s typically two ways in which to handle them. First and foremost is to challenge any illegal search and seizure issues based on any violations committed by law enforcement under the Fourth Amendment. If your attorney is successful under these claims, then the evidence collected by police, meaning the cocaine will be inadmissible against you and most likely the charges will be dropped against you.
What is Possession?
Second, it’s critical that your attorney looks at the legal basis in which the state is claiming that you had possession of cocaine. There are two ways for possession to be obtained in this state. One is by actual possession, meaning that you had physical custody of the cocaine, that it was on your person either in your pocket, in your wallet, in your purse, a bag in your sock, in your underwear, some way that it’s actually physically on your person. The second way is through constructive possession and this is where your lawyer’s most likely going to have a better chance of establishing some type of defense against you. Constructed possession means that you don’t actually have physical custody of the cocaine and that you are in a place where you can exercise dominion and control over the cocaine. Now, under this legal theory, more than one person can be in possession of the substance, in this case cocaine.
Defense – Mere Presence
Good lawyers know that one of the most effective defenses against constructive possession of cocaine is that you are merely present. What mere presence as the defense means is that you were in proximity of the cocaine that was found, but you didn’t have the right to exercise dominion and control over the substance. This can typically be asserted in cases where there’s a search warrant on a residence that you may be there and it’s not a place where you live, or another common occurrence is in a vehicle where you are a passenger and you are not the owner or operator of that vehicle. If you fall under one of those two categories, then it’s not enough evidence for the state to establish position to reach a conviction. However, if you are the property owner or you are the owner and operator of that vehicle, the state can establish constructive possession against you and that can be enough to establish a conviction at trial.
Charleston, SC Criminal Defense Lawyer
As you can see, there are a number of legal issues that need to be reviewed when you’re charged with this type of case in South Carolina. So, if you are facing one of these charges and would like me to have a review your case and the facts in it, please give me a call at (843) 530-7813. I hope this video was helpful and thanks for watching.