Drug Crimes

JOINT POSSESSION, DIRECT POSSESSION AND CONSTRUCTIVE POSSESSION OF DRUGS OR PARAPHERNALIA.

Constructive Drug Possession.  A person can constructively possesses drugs, drug paraphernalia or other contraband when there is a sufficient nexus between the defendant and the contraband to permit an inference that the defendant had both the power and the intent to exercise dominion and control over it.

When a jury is asked to convict someone of constructive possession of drugs the jury will conduct a fact-specific inquiry and may consider the following nonexclusive list:

(1).  Did the defendant own or occupy the location where the drug paraphernalia was found?

(2).  Did the defendant have a special or exclusive control over that area where the drug paraphernalia was found?

(3).  Did the defendant make any incriminating statements or behaviors?

(4).  Did the defendant have previous convictions for drug possession of similar contraband

(5).  This list is not exhaustive, nor is each factor always pertinent.

Extreme examples could be where the defendant is arrested in Provo for drug possession, but the actual drugs where found at this house in Orem that was just raided.  LUCERO Case

Joint Possession of Drugs.  You can also be charged with jointly possessing the same marijuana pipe.  It is sufficient if the person participated with one or more persons in the possession of a controlled substance with knowledge that the activity was occurring, or the controlled substance is found in a place or under circumstances indicating constructive possession.

Direct, Exclusive Drug Possession.  Direct, exclusive drug possession is the classic situation where the Orem police stop your car and find Marijuana therein.  No one else is in the car.

INNOCENT POSSESSION DEFENSE TO DRUG PARAPHERNALIA POSSESSION.

Utah law recognizes the “Innocent Possession” defense to drug paraphernalia possession.    The charge to the jury reads:

You must decide whether the State has proven that the defendant did not innocently possess the marijuana pipe.  The defendant is not required to prove he innocently possessed the marijuana pipe. Rather, the State must prove beyond a reasonable doubt the defendant did not innocently possess the marijuana pipe. The State has the burden of proof at all times.

A person innocently possesses a substance if he obtained the marijuana pipe innocently and possessed it with no illegal purpose; and the defendant took or was taking adequate measures to rid himself of possession of the substance as promptly as reasonably possible.

MERE PRESENCE NOT EVEN TO CONVICT FOR DRUG POSSESSION.

In addition to the “Innocent Possession” defense, mere presence where drugs are located is not enough to convict.   Here the jury instruction reads:

CR1211 Mere Presence is Not Sufficient.

The defendant’s mere presence at the place where the drugs were located is not sufficient on its own to prove that the defendant was in possession of the drugs.

ENHANCEABLE DRUG OFFENSES.

Most drug offenses are enhanceable.  Meaning that second and subsequent offenses will be charged at one or more higher grades.

First offense simple marijuana possession is charged as a Class B. Misdemeanor.   Upon a third conviction the person is guilty of a Class A. Misdemeanor, and upon a fourth or subsequent conviction the person is guilty of a Third Degree Felony.

DRUG FREE ZONES.

Imagine heading to an elementary school around 8 p.m. on a Saturday night.  School is clearly not in secession and you are some scumbag pushing marijuana to kids.  You and your buddy decide to smoke a marijuana joint on way through the school soccer fields.  Suddenly a Provo police officer stops you and you are cited for simple marijuana possession and told to contact the Provo City Justice Court.

Instead you receive a notice of a Class A Misdemeanor being prosecuted in the Provo District Court for violation of a drug free zone.  I.E., the school soccer fields.  Your license is at stake and this is your first criminal charge.

UTAH DRUG FREE ZONE CRIMINAL DEFENSE LAWYER.

If you are charged with simple marijuana possession, a Class B Misdemeanor, but the offense occurs in a drug free zone, then the charge is upped one grade in severity to a Class A Misdemeanor.

WHAT IS A DRUG FREE ZONE UNDER UTAH LAW?

Utah’s drug free zone is defined at Utah Code Ann. 58-37-8(4) (2018).   Here is a list of drug free zones in Utah.

(i)            in a public or private elementary or secondary school or on the grounds of any of those schools during the hours of 6 a.m. through 10 p.m.;

(ii)           in a public or private vocational school or postsecondary institution or on the grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;

(iii)          in or on the grounds of a preschool or child-care facility during the preschool’s or facility’s hours of operation;

(iv)          in a public park, amusement park, arcade, or recreation center when the public or amusement park, arcade, or recreation center is open to the public;

(v)           in or on the grounds of a house of worship as defined in Section 76-10-501;

(vi)          in or on the grounds of a library when the library is open to the public;

(vii)         within any area that is within 100 feet of any structure, facility, or grounds included in Subsections (4)(a)(i), (ii), (iii), (iv), (v), and (vi);

(viii)        in the presence of a person younger than 18 years of age, regardless of where the act occurs; or

(ix)          for the purpose of facilitating, arranging, or causing the transport, delivery, or distribution of a substance in violation of this section to an inmate or on the grounds of any correctional facility as defined in Section 76-8-311.3.

As you can see there are a lot of drug free zones.   A good drug possession criminal defense attorney will challenge the measurements for the 100 foot radius at the trial, or preliminary exam.  Call/TXT Jake Gunter.