Drug charge defenses in South Carolina
Can you be charged with drug possession when they’re not your drugs? Unfortunately, yes. But, importantly, that doesn’t mean you’ll be convicted. Hi, my name is Dale Savage and I’m a criminal defense attorney here in Charleston, South Carolina. And today we’re talking about drug possession charges when they’re not your drugs and, more importantly, what defenses you can assert against those particular charges.
In the state of South Carolina, you can possess drugs under our laws under two separate ways:
- actual possession or;
- constructive possession.
Actual possession means that you had physical custody of the drugs, meaning that they’re on your person. That’s not what we’re talking about today. What we’re talking about today is constructive possession. Constructive possession is when you don’t have physical custody of the drugs, but you do have control of the drugs or the premises on where the drugs are located. There are three common defenses to constructive possession cases.
- First is that the search or seizure was unlawful;
- Second is that you were merely present at the location; and
- Third is that you didn’t have possession at all.
Under search or seizure arguments, for police to conduct that search, they have to have a valid legal reason or you give them consent to conduct that search. Now, consent means that whether you knew it or not, you’ve told police you can go ahead and search and that you don’t need a legal reason to go ahead and do that. But, if the challenge is based on lack of probable cause, that means police have asked you, most likely, to conduct that search and you’ve told them no. Now, they must have a valid legal reason to conduct that search. And if they don’t, the prosecutor or the court will most likely suppress those drugs found as a result of that constitutional violation and the good chances are, the case will be dismissed against you.
The second is merely present. Mere presence means that you are in close proximity to the drugs, but you weren’t in possession of them. This typically happens when you’re a passenger in a vehicle, but you’re not the owner or operator of the vehicle and the drugs weren’t found on your person. Without more, our courts have said that’s not enough to establish constructive possession. The state has to show more than just being merely present where the drugs are.
And lastly is to make a challenge based on the lack of constructive possession at all. For the state to establish constructive possession, they have to show that you had the right or authority to exercise dominion and control over the drugs or the property where the drugs are located. So if we’re talking about a residence where the drugs are found and you were inside that residence at the time, and that’s the basis for the arrest, if you do not own that home, our courts have said in a number of circumstances without more, you have access to that home, but you do not have the right to exercise dominion and control over the property within that home. And therefore you can’t establish constructive position.
Charleston, SC Criminal Defense Attorney
And the same goes with a vehicle. Even with a passenger in a vehicle, and you’re not the owner and operator of that vehicle and you don’t have physical custody of those drugs, again, without more, our courts have said that’s not enough for the state to reach a conviction. Doesn’t mean you’re not going to be arrested, but it does mean that the chances of getting convicted of those charges are very small without more. So if you have a drug possession case based on constructive possession and would like to know more, please give me a call at (843) 530-7813. I hope this video was helpful and thanks for watching.