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Internal Possession of Drugs - Utah Criminal Defense

Can I be charged with drug possession if I fail a drug test in Utah?

In Utah drug cases, the term "internal possession" is sometimes used to describe a drug possession case where drugs are found in a defendant's blood or other body fluids. The law on this subject has changed over time. But prosecutors may be able to file criminal charges in some circumstances based on internal possession of a controlled substance, as shown by the results of a failed drug test.

If you are being prosecuted for a drug offense or other criminal charges, it is critical to have the assistance of an experienced criminal defense attorney. Based in Salt Lake City, criminal lawyer Stephen Howard has spent his career defending the rights individuals facing criminal prosecution in Utah. Contact us now to arrange for a confidential consultation.

Drug Possession Types in Utah

Utah Prescription Fraud Defense AttorneyUnder Utah criminal law, drug possession can be charged as either a felony or misdemeanor. Utah's drug possession charges can be filed for illegal "street drugs" or for possession of many prescription drugs without a prescription.

Most drug possession cases in Utah involve questions of "actual possession" and "constructive possession." Actual possession typically involves drugs that are found under the person's immediate control (such as in a pocket of clothing worn by the person). Constructive possession cases commonly involve drugs found under a car seat, in a glove box, in a shared bedroom in a home or apartment, or in another location where it is not immediately clear who has control over the drugs.

Under provisions of the Utah Controlled Substances Act, a person can be charged with a crime for "any measurable controlled substance in [his or her] body." Some drug possession cases involve a controlled substance found concealed inside a body cavity. These cases are typically considered "actual possession" cases. An "internal possession" case typically will involve drug testing that reveals a controlled substance in the defendant's blood or other bodily fluids.

History of "Internal Possession" in Utah

Defense attorneys successfully challenged the concept of "internal possession" of a controlled substance in the Utah Court of Appeals case of State v. Ireland (2005 UT App 22). In this case, the defendant had been charged with possession or use of a controlled substance based on the presence of marijuana and methamphetamine in a blood sample drawn following a traffic accident. The trial court in Ireland ruled that the term "consumption" of a drug as used in the drug possession statute included the process of metabolizing the drug inside the human body. The Utah Court of Appeals reversed the conviction, ruling that the trial court had erred in interpreting the statute.

The Court of Appeals in Ireland instead held that the term "consumption" under Utah Code 58-37-2 refers to methods of introducing a controlled substance into the human body. In order for the trial court to have jurisdiction over the case, the prosecutor must have been able to present some evidence that the defendant had consumed the drugs within the territorial borders of the State of Utah. Without such evidence, the Court of Appeals ruled that the trial court had no jurisdiction over the alleged offense of possession or use of a controlled substance. The Court of Appeals' decision was later affirmed by the Utah Supreme Court (2006 UT 17).

While Ireland may have appeared to have been the end of internal possession cases in Utah, laws were soon changed by the Utah Legislature to restore internal possession as a viable criminal charge in Utah. In apparent response to the Ireland cases, the Legislature amended the definition of "consumption" under Utah Code 58-37-2 to include either "ingesting" a controlled substance or "having any measurable amount of a controlled substance in a person's body." (This definition specifically excludes metabolites from the definition of consumption.)

This change to the statute made it a crime in Utah for a person simply to have an unlawful controlled substance in his or her body. Internal possession cases are rarely filed in most Utah jurisdictions. And concerns continue to exist about the wisdom of this charge. In the Court of Appeals decision, Judge Thorne noted the "absurd result" possible under an internal possession scheme, where a person who is walking down the sidewalk with a controlled substance in his system would be subject to felony charges and potential prison time, while a person with the same amount of drugs in his system who chose to put himself behind the wheel of a car would face a less serious misdemeanor charge.

Internal Possession as a "Status" Crime

Internal possession cases also raise questions regarding the constitutionality of so-called "status"crimes. The Utah Supreme Court addressed this issue in the case of State v. Robinson (2011 UT 30), issued on June 10, 2011. The Utah Supreme Court affirmed a district court decision that held that charging a person with possession of a controlled substance based on a failed drug test did not violate constitutional protections regarding "status" crimes.

The defense in Robinson argued that the new statute created a "status" crime by punishing a person who merely has the status of having previously consumed drugs rather than the act of consuming or using drugs. The thrust of the defense argument in Robinson was that a person who had consumed drugs previously, perhaps even in another jurisdiction where such consumption was legal, could nevertheless be punished once coming to Utah on the basis of internal metabolization processes over which the person had no conscious or intentional control. Prosecutors countered by arguing that because the term "consumption" includes the presence of a measurable controlled substance, and that the period of metabolization and intoxication is perhaps the most dangerous period of drug use.

The Utah Supreme Court noted that the statute does not criminalize the mere presence of a controlled substance metabolite in a person's blood, but instead criminalizes only the presence of the active controlled substance itself. The Court further noted that if mere metabolite were criminalized, then the defense claim of an unconstitutional "status" crime might have more merit. But because the statute specifically excludes mere metabolite from prosecution, the Court held that the statute did not create an unconstitutional "status" crime.

Distinguishing Controlled Substances from Metabolites

Some Utah criminal statutes make no distinction between an active controlled substance and a controlled substance metabolite. For example, Utah's DUI/Metabolite statute makes it a crime to drive or be in actual physical control of a motor vehicle with any measurable amount of an illegal controlled substance OR controlled substance metabolite in the driver's system.

The Utah Supreme Court's decision in Robinson seems to leave open the question of whether Utah's DUI/Metabolite law creates an unconstitutional "status" crime when enforced against a person who drives only with the inactive metabolite of a controlled substance in his or her system. This is a question that has yet to be resolved by Utah's appellate courts.

Finding a Criminal Defense Attorney in Salt Lake City

Utah Criminal LawyerStephen Howard is an experienced criminal defense attorney in Salt Lake City, Utah. He is one of only a few criminal defense attorneys in private practice in Utah who has extensive experience inside Utah's felony drug court system.  

If you are facing prosecution for drugs or other criminal charges, contact us now to schedule a confidential initial consultation.


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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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