Free 10 Minute Consultation

How is Possession of Drugs Proven?

On behalf of Dolan + Zimmerman LLP December 17, 2021

If you’ve been accused of drug possession, there are several specifics the prosecutor must prove in order for you to be convicted. It’s not enough for them to simply show up in court and say that the police found what they believe to be drugs on your person. If you find yourself in this situation you should immediately contact an experienced Boulder criminal defense attorney today.

Elements of possession of a controlled substance 

In order to prove that you possessed drugs or a controlled substance, the following elements must be proven beyond a reasonable doubt:

  • You knowingly possessed the drugs (actual possession, constructive possession, or joint possession)
  • What you possessed were actually illegal drugs 

Possession can be actual, constructive, or joint

It can sometimes be confusing to people that they can be charged with and convicted of drug possession even if the contraband isn’t physically in your possession. If the drugs are on your person or in your possession, this is called actual possession. However, if the drugs are near you and you have the possibility to have control over the drugs, you can be convicted of possession of the drugs based on constructive possession

An example of constructive possession is having drugs in your room on your nightstand that the police find. Even though they weren’t on your person or in your bag or your pocket, you can still be convicted of possessing these drugs. This is true even if other people live in the house or even share that room with you.

An example of joint possession is a couple who keeps their shared drugs in a nightstand by their bed. Both parties can be charged with possession in this case.

Proving that the drugs were actually drugs

In order to prove that you were in possession of a controlled substance, the prosecutor has to prove that what you possessed was in fact an illegal substance. To do this, the drugs are collected and sent to a lab for testing. There must also be a proper chain of custody, meaning there has to be a record of who possessed the drugs, who tested them, where they went after they were tested, etc. in order to prove that the drugs tested are the same items that the defendant had on their person or were nearby when they were arrested. In other words, the drugs must be accounted for from the moment they were confiscated until the exact second they were locked away into police custody.

Potential Penalties

If you’re charged with possession of drugs, you can be facing either a misdemeanor or a felony, depending on the amount and type of substance you’re accused of possessing. If you’re charged with a misdemeanor, you could face between six and 18 months in jail and a fine of up to $5,000. If you’re convicted of felony drug possession, you will be looking at between six and 12 months in prison, one year of parole/probation, and up to $100,000 in fines, among other charges and fees associated with your case. 

Contact a lawyer today

It’s obvious that being convicted of drug possession is very serious. It can have many adverse consequences, including negatively impacting your job search, , to affecting where you’re able to live if a background check is submitted. If you have questions regarding whether drug possession is a misdemeanor versus a felony or you need legal help related to any criminal matter, contact a lawyer right away.