Drug possession is a serious crime in Virginia. Under Commonwealth law (Code of Virginia § 18.2-250), unlawful possession of Schedule I substance or Schedule II substance can be charged as a felony offense. This raises an important question:
The answer is that you can still be arrested for drug possession. However, you can only be convicted of the charge if prosecutors can prove all of the elements of “constructive possession.” In this article, our Richmond, VA drug possession defense attorneys explain what you need to know if police find drugs inside your vehicle.
First and foremost, it is important to understand that actual physical possession of a controlled substance is not required to be arrested for and convicted of drug possession in Virginia. There is another type of possession known as “constructive” possession. Essentially, it is a form of non-physical possession that occurs when a person knows about and controls drugs without having them in their hands or on their person.
If drugs are discovered in your vehicle, Virginia prosecutors may decide to bring constructive possession charges. As an example of how this works, imagine that officers from the Richmond Police Department find illegal drugs in a glove box of a vehicle that you own. Although those drugs are not in your hands or on your person, police and prosecutors could still potentially hold you responsible for them.
That being said, they can only do so if they can prove that the banned substance is actually yours. When bringing a constructive possession case against a defendant who allegedly had illegal drugs in their car, prosecutors have the burden of proving the following two things:
1. Knowledge: Drug possession requires knowledge. You are not in possession unless you know about the presence of the banned substance. Lack of evidence of knowledge may result in constructive possession charges being dismissed outright.
2. Dominion & Control: Virginia prosecutors must also establish that the accused had dominion and control over the drugs. In other words, prosecutors must prove that the drugs, at least on some level, were “your” drugs. Notably, Virginia courts consistently ruled that it is possible for two defendants to collectively exercise control over the same drugs.
To be clear, a defendant is not automatically guilty of drug possession simply because they were inside of a vehicle in which drugs were found. Indeed, you are not automatically guilty even if drugs were found in a vehicle that was registered in your name. Prosecutors must prove knowledge and control beyond a reasonable doubt.
Constructive possession cases are notoriously complex. As explained in the Virginia Court of Appeals case of Barlow v. Com., 494 S.E.2d 901, a defendant will only be convicted of constructive drug possession if the Commonwealth can present evidence in the form of conduct, statements, or circumstances that strongly suggest both knowledge and control. Some of the most common types of evidence used to support constructive possession include:
- Statements or admissions by the defendant
- Witness testimony
- Written documents/records, such as purchase receipts
- Law enforcement officer observations
- Circumstantial evidence, including specific positioning of the drugs and
- Distinctive drug odors
As an example, in the case of Ervin v. Commonwealth, a Virginia appeals court ruled that the officer’s observation of a very strong smell of marijuana in a vehicle was sufficient to prove that the driver was in constructive possession of the marijuana that was discovered in the glove box of the vehicle.
The bottom line: If you are found in a vehicle with illegal drugs, you may be arrested for drug possession. However, the presence of drugs within a vehicle is not, by itself, sufficient to prove that you were in unlawful possession. Defendants arrested on constructive possession charges should call an experienced Richmond, VA defense lawyer right away.
At Bain Sheldon, our Richmond drug possession defense lawyers are aggressive, skilled advocates for our clients. If you were charged with constructive possession after drugs were found in your vehicle, we are ready to help.
For a completely confidential consultation with an experienced criminal defense attorney, please do not hesitate to contact us today. We serve communities throughout the Greater Richmond area, including in Chesterfield County, Henrico County, and Hanover County.