If the police find marijuana in a car who is charged?

A common occurrence is for the police to find marijuana in a car. Many times there are two, three or more people in the car and a question arises as to who should be criminal charged. The common solution to this dilemma for the police is simply to arrest or ticket everyone - leading to scenarios where it is necessary to challenge improper marijuana arrests in Court.

In South Carolina the law regarding possession of marijuana makes it illegal to either be in actual possession or constructive possession of marijuana.

Actual possession means that you have immediate and direct control over the marijuana. Examples would be marijuana that is in your hand, pocket or purse.

Constructive Possession means that you have the ability to exercise actual possession of the marijuana at your discretion. You would need to have knowledge of the marijuana and access to it. Examples would be marijuana that is in a trunk, glove box or underneath a car seat.

When someone is charged with marijuana in a car the police must prove in Court either the actual or constructive possession of marijuana. This must be done in one of two ways:

The marijuana is "on" them

or

The defendant knows about the existence of the marijuana, and;
The defendant could access and control the marijuana if they wanted.

If this seems like a complicated analysis - it doesn't have to be. I've argued to Court's before that you can substitute "money" for "marijuana" in determining possession. If someone has a $100 bill in their purse or luggage compartment that doesn't mean that everyone in the car is in possession of the money.

If the police make a marijuana arrest and then later can't actually prove either actual or constructive possession in Court then the charge should be dismissed.


If you are facing any drug crime contact Lexington Criminal Defense Lawyer James Snell at 1-888-301-6004. We provide initial consultations in our office at no cost to those seeking to hire an attorney for their case.

Categories: Drug Crime Defense
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