Mere Presence as a drug possession defense in South Carolina?

Mere presence is a legal defense you can assert in drug possession cases but not all drug cases. Today where going to about when you can and cannot use this defense and the reasons why.  Hi, my name is Dale Savage and I’m a criminal defense attorney here in Charleston, SC. Today we’re talking about defending drug charges asserting mere presence as a defense and how it can help you in your case.

What is Mere Presence?

So, what is mere presence?  Mere presence is a legal defense to possession of drugs where the state must present evidence of more than just a person’s mere presence where drugs are found. 

The reason for this is that a fact finder, either a jury or judge, cannot convict you based solely from your presence in the proximity of drugs.

The most important word in that last sentence is solely.  And I’ll explain why it’s important as we talk about how mere presence works.

How It Works

So, when can you argue mere presence as a legal defense in drug cases?  To know this, you must first understand that possession can be either actual or constructive.

Actual Possession

Actual possession is when the drugs are found in the actual physical custody of a person.

Because physical custody is more than just your proximity to the drugs you cannot argue mere presence in these cases.  Another way to say this is that possession is not based solely on your proximity to the drugs as you have physical custody.

Actual possession cases are common in two scenarios, first is when police recover the drugs from your person, the second scenario are drug throw down cases where police see you throw the drugs to the ground.  You cannot argue mere presence in these types of cases because they are based on physical custody.

Constructive Possession

However, under constructive possession you can argue mere presence.  Constructive possession is when a person has dominion and control or the right to exercise dominion and control, over the drugs or the premises on which the drugs are found.  In other words, you do not have physical custody of the drugs.

The most common types of constructive possession cases are when you are a passenger in someone else’s vehicle or inside someone else’s residence.  The reason that mere presence is appropriate in these circumstances is that can be a legal issue as to whether you had dominion and control over the premises where the drugs were found or had knowledge that the drugs were there.  That burden is on the state to prove beyond a reasonable doubt that you were more than merely present.

Charleston, SC Drug Crimes Attorney

If you are facing a drug charge and believe mere presence may be an issue in your case, please call me at (843) 530-7813.  I hope this video was helpful and thanks for watching.