Can I be charged with drug possession if someone else took
Under Utah criminal law, it is possible for two people to be charged
possessing the same drugs. It is possible, even if one person takes
responsibility or claims ownership of the drugs, for another person
also to be charged with possession
of a controlled substance
. If you are facing criminal drug
charges, an experienced
Utah criminal defense attorney
ensure that your rights are protected. Stephen Howard has defended
Utah drug charges ranging from first-degree felony
distribution to misdemeanor
us today for an initial consultation.
The most common scenarios in which two people could be charged with
possession of the same drugs would likely involve either accomplice
liability or constructive possession. To understand how this can
happen, principles of "actual" and "constructive" possession
should first be understood.
Utah Drug Possession Law - Actual v. Constructive Possession
law relating to drug possession involves two different kinds of
possession: "actual" possession and "constructive" possession. Both
kinds of possession carry the same potential consequences
Utah law. "Actual" possession is a relatively straightforward concept
- someone has actual
possession of drugs, in their hand, in their pants pocket,
etc. Laws relating to constructive
are more complicated, and can result in multiple
individuals being charged with possession of the same drugs.
A person is considered to be in constructive possession of a controlled
substance under Utah law if the person knows of the drugs, has
both the ability and the intent to exercise
the drugs. Because it is possible for two people to have both the
ability and the intent to exercise control over the same item, two
different people can both be charged with possessing the same drugs.
Consider the following hypothetical examples:
Suppose that a police officer stops a vehicle for a traffic violation.
The occupants of the vehicle are the driver/owner and a
passenger in the front seat. During a search of the vehicle
(assume for purposes of this example that the officer had
sufficient probable cause or reasonable suspicion to justify the
search), the officer finds a small bag of marijuana under the front
passenger seat. Suppose next that the driver/owner of the
vehicle tells the officer that he is aware of the marijuana in the back
seat, and intends to smoke it when he gets home. The
passenger invokes his right
to remain silent
and says nothing about the marijuana.
The officer would likely charge the driver of the vehicle
, even though the officer never observed the
driver in actual possession of the marijuana.
Assume the same set of facts, but this time the passenger admits that
he knows about the marijuana and that he intended to smoke it when he
got home. This time, the driver invokes his Miranda
and chooses to remain silent. Under these circumstances, the
police would probably charge the passenger with drug
under a theory of constructive possession.
Assume now that both the passenger and the driver admitted to the
police that they knew about the marijuana and that they intended to
split up the stash when they got home. In this situation,
both the driver and the passenger could be charged with possession of a
controlled substance. (It is also possible that both could be
charged with possession
with the intent to distribute
, based on the argument that
splitting the marijuana between the two people constituted
"distribution" under Utah law.)
This time, assume that both the passenger and the driver invoked their
and said nothing about the
marijuana. This makes a charge of possession difficult to
prove against either person. On the one hand, the passenger
is sitting immediately above the marijuana. But there is no
evidence to indicate he was aware of it's presence or intended to do
anything with it. On the other hand, the owner/driver of the
vehicle probably has a stronger claim of right to items found in his
vehicle. But without any statements or admissions from the
owner, it is difficult for a prosecutor to prove that he even knew
about the marijuana. In either case, if a jury is left with a
reasonable doubt about whether the driver or passenger was aware of and
intended to exercise control over the marijuana, a not guilty verdict
should be returned.
Consider one final scenario. Again, the police pull
vehicle over for a traffic violation. This time, the officer
the vehicle and sees the passenger holding a bag of marijuana in his
hand. The passenger is in "actual" possession of the
marijuana and could be charged. Next, assume that the driver
of the vehicle tells the officer, "Don't charge him, that's my stuff."
Now the driver has admitted to constructive possession of the
marijuana. Both the driver and the passenger can now be
charged with possession of marijuana.
fact that the driver has claimed responsibility for the drugs does not
negate the fact that the passenger was in actual possession of the
drugs. If the elements of actual possession or constructive
possession can be proven against both people, both can be charged.
Accomplice Liability for Drug Possession
Utah law provides a second alternative under which a person could be
charged for drug possession even if another person had claimed
responsibility. Under Utah's accomplice liability statute
, a person can
be convicted for a crime committed by another person under certain
circumstances. If a defendant "solicits, requests, commands,
encourages, or intentionally aids another person to engage in conduct"
that constitutes a criminal offense in Utah, then that defendant may be
convicted for the crime committed by the other person.
A second key element of accomplice liability under Utah law is that the
person charged as an accomplice must also act "with the mental state
required for the commission of an offense." This "mental state"
requirement can be particularly relevant in cases where possession with
the intent to distribute is charged.
Penalties for Drug Crimes in Utah
penalties for drug crimes in Utah can be severe, and can include jail
time, prison time, and potentially thousands of dollars in fines. The
maximum potential penalties can depend on the specific drug involved as
well as the conduct committed.
Possession of drug
paraphernalia or possession of less than one ounce of marijuana are
both considered class B misdemeanor charges, punishable by a maximum of
up to 180 days in jail. Simple possession of small amounts of most
other "street" drugs (e.g. cocaine
as well as the unlawful possession of many prescription medications
will often be filed as third degree felony charges, punishable
up to five years in prison. Distribution charges in most Utah drug
cases begin at the second degree felony level, with a potential penalty
of up to 15 years in prison. Enhancements for possession or
distribution within a drug
or an enhancement
convictions can increase the penalties substantially.
In addition to jail, prison, and fines, a drug conviction in Utah can
also carry collateral consequences. One of the most common consequences
outside the courtroom is the loss of a driver license. Without any
order from the court, Utah's Driver License Division is authorized to
suspend a defendant's driver license following a drug conviction. A
driver license suspension can often be avoided by negotiating a plea in
abeyance, or by obtaining an order from the court with a formal finding
that the drug offense did not involve a vehicle and that the defendant
is engaged in drug treatment.
Finding a Utah Criminal Defense Attorney in Salt Lake City
you are facing prosecution for drug possession or other crimes in Utah,
an experienced criminal defense lawyer
help ensure that your rights are protected. Contact Salt
Lake City criminal defense attorney
Stephen Howard today to
arrange for an initial consultation and analysis of your Utah criminal