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
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.