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Drug Possession: 3 Potential Defenses

By Tanya Roth, Esq. on March 13, 2013 | Last updated on March 21, 2019

So, you've been caught with weed, meth or crack, and don't know how to talk your way out of this one.

They didn't catch you taking the drug, or dealing it. They just caught you with it. It's called drug possession, and it's a crime.

But as with any crime, there are some potential defenses that you may be able to raise.

Laws About Drug Possession

The possession of illicit drugs is illegal under both federal and state laws. Illicit drugs include methamphetamine, cocaine, LSD, and heroin, among others.

Cannabis (i.e., marijuana) is still listed as a prohibited substance under federal law, though some states allow for medical and recreational use of the drug (you can check your state's pot laws here). Furthermore, the amount of marijuana possessed by an individual -- even in a state that permits it for recreational use -- might be cause for legal concern.

So, how do you get yourself out of this mess?

Possible Defense Strategies

For starters, you need to talk to a criminal defense attorney. It's not really a "do it yourself" type of thing to talk your way out of a drug offense, even if you think you've dealt with this sort of situation before.

What are some common defenses to drug possession charges? Depending on your specific situation, they may include:

  • No knowledge of the drugs. One of the elements of the crime of drug possession is that it was willfull possession. How can it be willfull if it wasn't yours and you didn't even know you had it?

  • The Constitution. The good ol' Constitution comes in handy in more ways than one. For example, if officers performed an unlawful search and seizure, then you might be able to exclude the evidence from the search. And that could include the drugs seized as the result of a bad search.

  • The seized substance is not drugs. Some substances may appear similar to drugs, but they really aren't. Also, any breaks in the chain of custody between the seizure of the alleged drugs and the laboratory where the drugs are tested may raise questions about reliability. So it's worth it for your lawyer to have a look at the lab tests.

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