Possession crimes account for the bulk of the violations charged under the Health and Safety Code. The elements of the crime of possession for personal use are that the defendant: (1) exercised control over, or the right to control, the drug in question; (2) had knowledge of its presence; (3) had knowledge of its nature as a controlled substance; and (4) the substance was in an amount sufficient to be used as a controlled substance. Dominion, control and knowledge are the essential elements of possession.

Possession of a controlled substance can either be actual or constructive. In cases of actual possession, the element of dominion and control is obviously not problematic. In those cases, the controlled substance is generally on the person, in their pockets, in their hands, clothing or somewhere within their reach at the time of arrest. In constructive possession cases, however, the element of possession is a fertile ground for litigation. Often the controlled substance is found within a car, a residence, or public place within the apparent control of many people.


You may have a defense to the charge if the drug was found in your car, but:

  • The car had been left unattended for a period of time, which another could place the drug in the car.

  • The car windows were open or doors unlocked.

  • Other people were in the area.

  • Others had been in the car with or without you present.

  • Your transitory possession was for the sole purpose of disposing the drug.

Furthermore, mere proof of access to the place in which drugs are found is insufficient for a finding of illegal possession. Likewise, mere presence at a place where narcotics are discovered is insufficient to prove possession. Even when the accused resides at the location where the drugs were found, it is insufficient to establish possession if other people had access to the location. In short, defendant’s “mere proximity to the drug, presence on the property where it is located, or association with the person who controls the drug is insufficient to support conviction for possession.”

If you are under investigation or have been charged with possession of a controlled substance, you need a criminal defense attorney on your side. Call the Law Office of Brett Parker Davison for a free consultation today for a free consultation!