Legal Blog

Can You Be Charged with Possession of Drugs When They Are Not Yours?

Author Postali Admin
Posted July 29, 2022
Category blog, Criminal Defense, Drug Charges

Yes. You can be charged with criminal possession of drugs if you were in a car with multiple passengers and a controlled substance is found. Even if you didn’t know about the drugs, you could still face charges for drug possession.

Contact a drug defense lawyer at Clark, Clark & Noonan, LLC if you find yourself in this situation. Our attorneys have more than 30 years of experience that we will use to help you get the best outcome possible in your case. Call us at 732-303-7857 .

Actual vs. Constructive Possession in New Jersey

There are different types of possession recognized under New Jersey laws that can lead to the arrest of everyone in a car, regardless of whether you knew about the drugs. Possession can be broken down into two main categories: actual possession and constructive possession. However, each type has components that can lead to charges for multiple people at once – sole possession and joint possession.

What Is Actual Possession?

Actual possession is what you typically think of when you consider who will be charged with owning the drugs. It means a person has possession of the drugs on their physical person.

Under New Jersey law, a person is in actual possession of drugs when they have knowledge of the substance and that it is on their person.

Actual possession may include having drugs in a jacket pocket or tucked inside a shoe.

What Is Constructive Possession?

Constructive possession is often used as the basis of criminal charges when multiple people in a motor vehicle are arrested for drug possession. For constructive possession, you do not have to have the drug on your person in order to be charged with the criminal offense.

New Jersey law states that a person in constructive possession of a drug must know what it is and have intentional control. That means, you must simply have the ability and intention to control the item, even through someone else. You can be charged with drug possession if it is found in the car where you are riding, even if it was not directly on your physical person.

Constructive possession may include drugs being stored in a car trunk or a bag within the main cabin of the vehicle.

Sole Possession vs. Joint Possession

If one person alone has actual or constructive possession of a drug, then they are considered to have sole possession. Joint possession describes a situation where two or more people share actual or constructive knowing possession of drugs.

If you are alone in your vehicle and drugs are found in your pants pocket, you will be found to have sole actual possession. If there are multiple people in the car and drugs are found, then you all may be charged with joint constructive possession.

Did the Officer Conduct an Illegal Search?

One of the best defense strategies against drug possession charges is targeting the legality of the search conducted by the police officer. The Fourth Amendment to the U.S. Constitution guarantees you rights against unreasonable searches and seizures. Before a police officer can ask you questions, enter your home, or search your vehicle, they must have probable cause that you are engaged in illegal activity.

If a police officer asks you to search your motor vehicle, you have a right to say “no.” You may also ask why they have pulled you over or why they are at your home. If they do not have a warrant or exigent circumstances that allow immediate search, then they cannot legally search or seize anything in your home or car.

If a police officer conducts an unlawful search and seizure, that evidence may be excluded from your trial. You should not physically try to stop them. However, you should tell your attorney that you did not consent to the search.

Penalties for Drug Possession in New Jersey

If you are convicted of drug possession in New Jersey, you could face up to five years in prison and a fine of up to $35,000. The exact consequences of your sentence will depend on the type (or schedule) of drug as well as the quantity found. Schedule I drugs are considered the most dangerous with schedule V drugs being the least addictive and having lesser penalties.

Possession of schedule I, II, III, and IV controlled dangerous substances, including counterfeit versions of these drugs, can result in a third-degree offense. Penalties include three to five years in prison and up to $35,000 in fines.

Possession of schedule V drugs, such as prescription drugs with codeine and opium, is considered a fourth-degree offense. This is punishable by up to 18 months in prison and a fine of up to $15,000.

Penalties for second and subsequent offenses may be doubled. Even first-time offenders may get more severe penalties if the offense occurs in a school zone, public housing project or public park.

Marijuana is still federally classified as a schedule I drug. However, because recreational marijuana is legal in New Jersey, an adult may possess up to one ounce without criminal penalties.

What to Do If You’re Charged with Possession of Drugs That Aren’t Yours

If you are arrested and charged with possession of drugs that aren’t yours, you have options. Here are some actions you should take:

  • Stay calm – Don’t run or resist arrest.
  • Remain silent – You are only required to give the police your name and your driver’s license, vehicle registration, and proof of insurance (only if you were driving).
  • Do not answer any questions from the police officer.
  • Do not consent to a search of your vehicle or home.
  • Immediately ask for an attorney.
  • Ask for a phone call. – The police cannot listen to your phone call if you call an attorney. They can listen if you call anyone else. Do not admit anything over the phone.

Possible Defenses to Possession of Drugs

Your drug defense attorney can help you develop strong defenses against your charges. By gathering all of the evidence in the case and conducting an independent investigation, your lawyer can figure out how to support your arguments.

Some common defenses you may use against drug possession charges include:

  • Evidence was obtained in an unlawful search and seizure.
  • You did not consent to the search.
  • You did not know what the item or substance was that was in your possession.
  • You did not know that the item or substance was in your possession.
  • You were not read your Miranda rights or were coerced into answering questions.
  • You were not provided with an attorney upon your request.

A Drug Defense Lawyer Can Help with Drug Possession Charges

Clark, Clark & Noonan, LLC have helped countless clients facing drug possession charges. We are familiar with the laws and elements that must be proven beyond a reasonable doubt. We know how to create doubt that leads to the dismissal of charges or an acquittal by a jury. Call us today for a consultation to learn more about your case: 732-303-7857 .