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Innocent Possession - Utah Drug Defense Attorney

Innocent Possession in Controlled Substance Cases - Salt Lake Defense Lawyer

While the defense of "innocent possession" is not expressly stated in the Utah criminal code, it is a valid defense that has been recognized by Utah's appellate courts in drug and controlled substance cases. Mounting a successful innocent possession defense requires a thorough understanding of relevant case law, and can involve complicated factual issues. When successfully presented, innocent possession can serve as a complete defense to a drug charge, resulting in dismissal of charges or a not guilty verdict at trial.

If you are facing drug possession or paraphernalia charges, an experienced criminal defense attorney can make all the difference for your case. Based in Salt Lake City, criminal lawyer Stephen Howard has spent his career defending the rights of clients facing serious felony and misdemeanor offenses in Utah. Contact us today to arrange for an initial consultation.

Elements of an Innocent Possession Defense

As a general rule, a prosecutor must prove knowing and intentional possession of a controlled substance or drug paraphernalia in order to obtain a conviction in a Utah drug case. But even if the evidence is sufficient to prove knowing and intentional possession, the principles of innocent possession can still provide the basis for a complete defense.

Salt Lake Drug Defense LawyerThe Utah Supreme Court acknowledged the validity of an innocent possession defense in the case of State v. Miller (2008 UT 61). The defendant in Miller had been convicted of two felony counts of possession of a controlled substance. The defendant appealed the trial court's refusal to give the jury a requested instruction on innocent possession. The Supreme Court ultimately acknowledged the validity of an innocent possession defense, and reversed the convictions.

The instruction originally requested in Miller had its origins in a opinion from the Court of Appeals addressing the concept of innocent possession in the context of a charge for possession of firearms. The Utah Supreme Court modified the elements of this defense slightly to fit the context of a controlled substance possession charge, ultimately holding that the defense of innocent possession applies if: 1) the controlled substance was attained innocently and held with no illicit or illegal purpose; and (2) the possession of the controlled substance was transitory. In defining what is meant by the term "transitory," the court stated that this requires a defendant to take adequate measures to rid himself of possession of the controlled substance as promptly as reasonably possible.

Application of the Innocent Possession Defense

An innocent possession defense can apply in both actual possession and constructive possession cases. Whether drugs are found in a person's immediate and actual possession, or police find evidence indicating an intent and ability to exercise control over the drugs (constructive possession), principles of innocent possession can provide a complete defense to a drug charge. Consider the following hypothetical case:

Arthur has suspected for some time that his son Bob has been experimenting with prescription pills that Bob has been purchasing from friends he has met at the local college campus. Arthur arrives home early one day, and finds a variety of pills in a baggie on the kitchen table. Arthur grabs the pills, intending to take them to the local police department's medication disposal program site. While driving to the police station, Arthur is stopped by a police officer for a minor traffic violation. During the course of the traffic stop, the officer notices the bag of pills sitting on the passenger seat. The officer asks Arthur what is in the bag, and Arthur responds that they are pills he got from his son. The officer asks Arthur if he has a prescription for the pills, and Arthur says no. The officer then asks Arthur to step out of the vehicle, and proceeds to put Arthur in handcuffs. Arthur protests, stating that he had obtained the pills solely for the purpose of disposing of the pills. The officer does not believe Arthur, completes the arrest process by booking Arthur into jail, and submits the case to the prosecuting attorney's office for the filing of formal felony charges.

This hypothetical presents one of the key issues involved in many innocent possession cases - the credibility of the defendant. In this hypothetical, the police officer did not believe Arthur's claim that he had taken possession of the pills only for the purpose of guaranteeing proper disposal. But if a jury finds the story credible, or if the jury is left with reasonable doubt regarding the elements of innocent possession, a not guilty verdict should be rendered.

Finding a Utah Criminal Defense Lawyer in Salt Lake City

Utah Criminal Defense AttorneyCriminal defense attorney Stephen Howard has a track record of achieving real results. He has spent his career defending the rights of clients facing serious felony and misdemeanor charges. If you are facing prosecution for drug charges, Stephen Howard has the skill, experience, determination, and knowledge necessary to help you achieve the results you need. Based in Salt Lake City, Mr. Howard provides legal services to clients throughout Utah.

Contact us today to arrange for an initial confidential consultation.


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  • Selected Victories
  • Criminal Defense Trial AttorneyNot Guilty - Client was charged with aggravated assault for alleged attack using broken bottle as a weapon. Despite the testimony of numerous prosecution witnesses, thorough defense investigation to support a self-defense claim resulted in acquittal by jury at trial.
  • Minor Possession Alcohol - MIP AttorneyDismissed - Minor in possession charge (MIP) was dismissed by prosecutor when defense analysis demonstrated that the police had failed to obtain necessary evidence against client. Police had raided a large party involving underage drinking. Several individuals were charged, but police did not obtain evidence showing that client had personally consumed or possessed alcohol. Case was dismissed.
  • Utah Expungement Attorney Expungement - Worked to restore client's expungement eligibility through 402 reduction process, then filed successful expungement petitions in multiple courts obtaining expungement orders and clearing client's official criminal history.
  • Utah Burglary Attorney Not Guilty - Client was charged with residential felony burglary and theft charges. Effective cross-examination of alleged victim at preliminary hearing resulted in an admission by the alleged victim that the charges were based on a false report to police, made for the purpose of getting revenge against the defendant. Case was dismissed outright.
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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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