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Actual v. Constructive Possession

Actual v. Constructive Possession

By Megan Matteucci, Michael Bixon

You are driving around town with your friends when you hear the roar of sirens behind you. You were driving a few miles over the speed limit. The officer is about to finish writing you a speeding ticket when he suddenly sees some marijuana in the car console between you and your friend.

It does not matter who the marijuana belongs to. You and your friends are all arrested and taken to jail.

Drug possession cases like this can be found daily in courtrooms throughout Georgia – and the U.S. The question is not really who owned the marijuana, but how the individual possessed it.

When it comes to narcotics, there are two types of possession: actual and constructive. One of these must be present to be charged with drug possession in Georgia. The type of possession, however, can sometimes impact the outcome of an individual’s case and the severity of their possible sentence.

Actual possession occurs when an individual actually possesses the drugs. This means that the individual is physically holding the drugs in their hand or on their person, and no one else has access to the drugs. To have actual possession, the individual must have direct physical control over the drugs. The defendant also must know about the drugs’ presence and that the substance is illegal. This can include drugs stashed in the individual’s purse, wallet or another place they have direct control over.

Constructive possession is the situation referenced above in the car. It occurs when an individual has the power or intention to control the drugs. This usually applies when multiple people have access to the same drugs. However, constructive possession also can occur when only one person is present. To prove constructive possession in Georgia, the prosecution must show that the individual had the power to control the drugs, knew the drugs were present and knew that it was an illegal substance.

In Georgia, a conviction of possession of less than an ounce marijuana carries a punishment of up to one year in prison and a maximum fine of $1,000. If convicted of possessing more than an ounce of marijuana, that punishment can go up to a maximum of 10 years in prison. Anyone convicted of possessing marijuana in Georgia also will have their driver’s license suspended for at least 180 days. These punishments can increase depending on the amount of drugs, as well as the defendant’s prior record or if a weapon was present with the drugs.

If you or someone you know has been arrested for drug possession, call Bixon Law at 404-551-5684. Bixon Law provides aggressive legal representation and fights for clients’ rights. Call for a free consultation.

Categories: Criminal Defense