Being charged with illegal drug possession in Washington can be more complex than it seems. The prosecution doesn’t always need to prove the drugs were found directly on your person. This is where the legal concepts of “actual possession” and “constructive possession” come into play. If you’re facing a drug possession charge, understanding the difference is the first step toward building a strong defense.
What’s the Difference Between Actual and Constructive Possession?
In Washington State, a conviction for illegal drug possession can be based on either type of possession.
- Actual Possession: This is the most straightforward type of possession. It means you had direct physical custody of the illegal drugs. This could be in your hands, your pocket, a backpack you’re carrying, or anything else that is literally on your person.
- Constructive Possession: This is a more complicated legal concept. It means you had “control” or “dominion” over the drugs or over the area where the drugs were found. This type of possession can be tougher for the state to prove, as it relies on circumstantial evidence rather than a “red-handed” discovery.
How Does “Actual Possession” Work?
Actual possession is often proven by the testimony of the police officer who found the drugs. If the drugs were on your person, the prosecutor will argue you had actual possession. Even if you tried to get rid of the drugs (such as by flushing them or swallowing them), you could still be charged with actual possession based on the circumstances of the incident.
How Does “Constructive Possession” Work?
Constructive possession is used when illegal drugs are found in a location you control, but not on your person. Common examples include:
- Your home or apartment
- Your vehicle
- Your locker or desk at work
- A rental storage unit
If you have control over the space where the drugs are discovered, you may be charged with constructive possession. In cases where you live alone or were the sole occupant of a vehicle, this is often sufficient evidence to prove possession.
However, proving constructive possession can be difficult for the prosecution, especially in situations where a location is shared with others. For example, if you live with roommates and drugs are found in a common area like the living room or kitchen, the prosecutor must provide additional evidence to connect the drugs specifically to you.
What is Considered When a Possession Penalty is Imposed?
When a defendant is convicted of illegal drug possession in Washington, a judge will consider these questions when determining precisely what sentence to impose:
1. What drugs were involved? In what quantity?
2. Were the drugs intended for sale or for personal consumption?
3. What is the defendant’s prior criminal record, if any?
4. Was a weapon involved? Or was a weapon in the defendant’s possession?
5. Is the defendant a juvenile or an adult? Was a juvenile involved with the crime?
Does Washington Offer Alternative Sentencing Options?
In drug possession cases, Washington’s judges now routinely order a chemical dependency evaluation before imposing a sentence. Some defendants will qualify for alternative sentencing.
Washington’s courts offer first-time offender and pretrial diversion programs that stress treatment and counseling over punishment and incarceration.
If you are charged with the possession of illegal drugs in the state of Washington, it is imperative to obtain the advice and representation of an experienced Seattle criminal defense attorney as quickly as possible.
Potential Legal Defenses in a Drug Possession Case
Every drug possession case is unique, and the best defense will depend on the specific details of your situation. An experienced criminal defense attorney can evaluate your case and help determine the most effective strategy. Some common legal defenses include:
- Illegal Search and Seizure: Police may have violated your Fourth Amendment rights by conducting an illegal search to find the drugs.
- Lack of Control: The defense can argue that you did not have exclusive control or dominion over the area where the drugs were discovered, especially if others had access.
- Lack of Knowledge: You were unaware the illegal drugs were present.
- Legal Entitlement: The drugs were legally prescribed to you.
- The Drugs Weren’t Illegal: The substance was not an illegal drug.
- Belonging to Another: The drugs belonged to another person or persons.
Penalties for Drug Possession in Washington
The severity of a drug possession charge in Washington depends on the specific drug, the quantity, and the defendant’s criminal history. Charges can range from a misdemeanor to a felony, with penalties including fines and jail time.
- Misdemeanor: Up to 90 days in jail and a $1,000 fine.
- Gross Misdemeanor: Up to 364 days in jail and a $5,000 fine.
- Class C Felony: Up to 5 years in prison and a $10,000 fine.
- Class B Felony: Up to 10 years in prison and a $20,000 fine.
- Class A Felony: Up to life in prison and a $50,000 fine.
The Importance of Legal Representation
If you are facing an illegal drug possession charge, it is crucial to seek legal advice and representation as soon as possible. An experienced Seattle criminal defense attorney will protect your rights, explain your options, and fight for the best possible outcome.
Your attorney can challenge the evidence against you, argue for a dismissal, or, if a conviction is likely, advocate for a more lenient sentence, such as an alternative sentencing program that focuses on treatment and counseling.
