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The difference between actual and constructive drug possession

On Behalf of | Aug 31, 2023 | Drug Charges

A possession offense is the most basic drug charge that Minnesota prosecutors can file against an individual. When police officers encounter someone in possession of a controlled substance or a drug banned by state law, they can arrest that individual and seize the contraband that they find.

Possession charges can range from simple first-time offenses to life-altering allegations of possession with the intent to sell those drugs to others depending on the weight of the drugs found, their classification under the law and numerous other factors, such as someone’s prior criminal record. Broadly speaking, there are two different, very distinct types of possession that can lead to charges. The state can prosecute someone for either actual possession or constructive possession.

What is the difference between the two?

Actual possession is straightforward. For the state to accuse someone of actual possession of drugs, police officers will need to find those substances in someone’s immediate physical control. That will usually mean the drugs are in their pocket or in a bag that they carry. Items directly on someone’s person at the time of their arrest will potentially lead to charges of actual possession.

Constructive possession is the legal term for a situation in which officers find drugs near a person but not on their actual body. For example, if police officers find a baggie of prescription pain pills in the backseat of a vehicle, they might charge the driver with possession using claims of constructive possession. The assertion by the prosecutor will be that the driver must have known about the presence of those drugs and had control over them.

Those accused of constructive possession, in particular, can sometimes use the details of the situation as a basis for their defense. A lack of fingerprints, the placement of the contraband and many other seemingly minor elements can raise viable questions about whether the defendant knew about and had control over the drugs in a case involving claims of constructive possession.

People sometimes have unrealistic ideas about how to defend against drug charges because they do not understand Minnesota law. Learning about the crucial differences between constructive possession and actual possession may help those facing drug charges plan a more effective defense strategy with the assistance of a skilled attorney.