Drugs: Simple Possession

by Jamison Koehler on October 12, 2009

There are two basic drug offenses in the District of Columbia: (1) drug possession, and (2) drug dealing. Today’s entry will deal with the misdemeanor offense of drug possession.

The crime of drug possession requires: (1) knowing or intentional (2) possession of (3) controlled substance. The defendant can use the affirmative defense that the contraband was possessed pursuant to a valid prescription.

First, the prosecution needs to prove that the defendant “possessed” the substance. This could be actual possession. The defendant could, for example, have the drugs in his hands or in his pocket at the time he is stopped by police. Alternatively, the drugs could be in the defendant’s “constructive possession.” This means that, while the contraband may not actually be on the defendant’s person, the defendant knew where the drugs were and had both the ability and the intent to exercise control over the drugs.

The second thing the prosecution must prove is criminal intent, or mens rea. There could be “negligent” possession in which the defendant should have known that the substance he possessed was contraband. There could be “reckless” possession in which the defendant disregarded specific indications that he possessed an illegal substance. Or, as in this case, the prosecution is required to prove “knowing” or “intentional” possession by the defendant; that is, that the defendant knew very well that the substance he possessed was contraband and that he intended to possess it.

Since no one can read the defendant’s mind to determine exactly what he knew or intended, the prosecution will use circumstantial evidence to prove this element of the offense. If the defendant is holding the contraband in his hand, the judge or jury can fairly assume that the defendant knew about the drugs and intended to have them in his hand. That would be knowing or intentional possession. The judge or jury can also look to the defendant’s behavior. Did he run away or attempt to hide the drugs when confronted by the police? Such actions could indicate consciousness of wrong-doing.

At the same time, the defense can attempt to prove that, while the contraband may in fact have been in the defendant’s possession, this possession was not knowing or intentional. Say, for example, that the defendant borrowed a friend’s coat and, unbeknownst to the defendant, there was contraband in one of the pockets. If the defense is successful in convincing the judge or jury of this explanation for the defendant’s possession of the contraband, the prosecution will have failed to make out the necessary mens rea.

The third and final element the prosecution must prove is that the drug recovered from the defendant is a “controlled substance”; that is, that it is included on the list of substances that are proscribed for personal possession without a valid prescription by the D.C. Controlled Substances Act.

The Controlled Substances Act groups substances that a person is not allowed to possess without a valid prescription into five categories – or “schedules.” Schedule I includes those substances (e.g., LSD and certain opiates) for which the legislature has determined there is a high potential for abuse and no accepted medical use in treatment. Schedule II includes substances (e.g., oxycodone, amphetamines, PCP, and some opiates) for which there is high potential for abuse and only severely restricted uses in medical treatment. And so on to Schedule V, which includes controlled substances with a low potential for abuse, many uses in medical treatment, and low potential for physical or psychological dependance.

In order to prove this element of the crime of illegal possession, the prosecution must prove two things. First, it must prove that the contraband recovered from the defendant is in fact one of the substances included in the Controlled Substances Act. It can do this by admitting the results of a laboratory test proving that the substance recovered from the defendant was, for example, heroin, marijuana, or cocaine. Second, the prosecution must prove that the substance that was tested was in fact the substance that was recovered from the defendant. While a fuller discussion is beyond the scope of this entry, this is what is known as the “chain of custody.”

Given the complexity of the prosecution’s burden of proof, you can see that there are many opportunities for defense counsel to challenge the prosecution’s case. In addition to each of the three elements of the crime of illegal possession described above, defense counsel can also make the affirmative defense that the defendant had a valid prescription at the time he was stopped by police. I will deal with affirmative defenses in later entries.

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