Many crimes in California involve possession. Examples of possession crimes include, but are not limited to, possession of a controlled substance, possession of child pornography, and possession of an illegal weapon. There are three types of possession – actual possession, constructive possession, and joint possession.
Possession is an essential legal element in many criminal cases. If the prosecution cannot prove possession, your case may be dismissed or acquitted. Keep reading to learn more about constructive possession and how it relates to your case.
What Is Possession?
Actual possession means you have immediate access to or are holding an item. The item could be on your body or something you are wearing or holding.
Constructive possession occurs when you have control of an item or the right to control an item. However, you do not have actual possession of the item. For example, the item could be in your vehicle or home or with someone else.
Joint possession means that two or more people share possession of an item. They may share constructive or actual possession.
Can I Be Arrested for Constructive Possession in California if I Don’t Have the Item on Me?
If you are charged with illegal possession, the prosecutor must prove that you knowingly possessed an unlawful item and knew of its unlawful nature. With constructive possession, you do not need to have immediate access to the item to be guilty of possession. The question is whether you knew the item was illegal and have control over it.
For example, let’s say you have drugs on your office desk. Via the legal theory of constructive possession, it could be reasoned that you had control over your office desk, knew the drugs were on the desk, and knew the drugs were illegal. Therefore, the prosecutor could charge you with constructive possession.
It is important to note that you do not need to be physically present with the item in order to be charged with constructive possession. The question is whether you had the right to control it even though you were not physically present with it.
Another form of constructive possession involves exercising control over an item indirectly. Someone could advise others (i.e., your agents) to do something with the property. For example, let’s say you have illegal drugs at your business, and you tell your employee to remove and dispose of the drugs. This is another scenario in which you could be charged with constructive possession.
You do not need to have exclusive control of a place to be charged with constructive possession. For example, you could be charged with constructive possession for hiding an illegal gun in a public place.
On the other hand, having access to the place where an illegal item is kept is not automatically constructive possession. For example, if your boss was hiding illegal drugs in the office file cabinet, and you used it but did not know about the presence of the drugs, you are not guilty of constructive possession.
What Are the Penalties for Constructive Possession in California?
If the prosecutor proves constructive possession, it has the same legal effect as a charge for actual possession. The penalty depends on the criminal charge.
For example, suppose you have drugs in your glove compartment, and you are charged with simple drug possession under the theory of constructive possession. The charge will likely be a misdemeanor. Therefore, you could be sentenced to a maximum fine of $1,000 and up to one year in county jail.
Now, suppose you have a weapon in the glove compartment instead of drugs. However, you are under a domestic violence protective order prohibiting you from having guns.
This charge is a wobbler. You can be charged with a misdemeanor or felony offense. If the prosecutor proves constructive possession, you could face up to three years in state prison and a $1,000 fine for a felony conviction.
Are There Legal Defenses to Constructive Possession in California?
There are several defenses to charges of constructive possession. The defenses depend on the facts and circumstances of your case. Potential defenses to constructive possession include:
- The item in question is not illegal.
- You did not have control of the item.
- The prosecutor does not have sufficient evidence to prove its case.
- You were legally entitled to possess the item.
- You knew the item was there but did not know what the item was or that it was illegal.
- The item was not yours.
- You did not know the item was there.
- Law enforcement officers violated your constitutional rights.
An experienced criminal defense lawyer will investigate the circumstances leading to your constructive possession charges. They can analyze the evidence the prosecution has against you to identify weaknesses and strengths in your case. Your attorney will also gather evidence to support the defense strategy for your case.
What Should I Do if I’m Charged With Constructive Possession in California?
Try not to panic. Being arrested is stressful, but panicking can cause you to make mistakes that hurt your defense. Instead, focus on what you need to do to protect your rights.
Do not ramble when the police officer asks you questions. If you say too much, you could provide evidence that the prosecution will use against you to prove constructive possession. Even though you may believe you are clearing your name by explaining what happened, you could give the State the evidence it needs for a conviction.
It would be best for you to tell the officer you are invoking your right to remain silent. Contact a criminal defense attorney to discuss your case as soon as possible. An attorney can advise you of your legal rights and the steps you should take to protect yourself. Do not discuss the case with anyone other than your attorney.
Call a San Jose Criminal Defense Law Firm for Help
Contact Ahmed & Sukaram, DUI and Criminal Defense Attorneys at (408) 217-8818 for a free consultation with a San Jose criminal lawyer. Our attorneys have extensive experience handling criminal cases and can help you fight your constructive possession charge.