The Difference Between Actual and Constructive Possession

Lerner & Rowe Law Group
Phoenix Criminal Attorneys | Drug & Weapon Charges

Proof of possession is a key element in most drug and weapons offenses. In Arizona, there are two types of possession: Actual and Constructive. It’s important to hire a Phoenix criminal attorney who understands the different types of possession and their application to your case.

Actual Possession vs. Constructive Possession

Actual possession is proved when the state establishes the accused had the drugs or the weapon on his or her person during a lawful search.

Constructive possession, however, is harder to prove. By its very nature a constructive possession case is likely to be circumstantial. Constructive possession is established by showing the accused exercised dominion and control over the item or the location in which the item was found.

Say you have one or more occupants in a vehicle and with a baggie of marijuana in the center console. Arguably, both occupants are in constructive possession of the marijuana baggie. More than one person can constructively possess the same item. Additionally, the state must demonstrate the accused had knowledge the marijuana was in the vehicle.

How to Challenge the Element of Possession

Our Phoenix criminal attorneys have handled hundreds of drug and weapon possessions cases, and know how to challenge the element of possession. One possible defense: argue you were merely present at a location where a prohibited item is located. Mere presence is insufficient to show that a defendant knowingly exercised dominion or control over an item; police must show specific facts or circumstances of dominion or control.

Additionally, the state may have difficulty proving constructive possession; specifically beyond a reasonable doubt without a statement of the accused or other witness. The state’s failure to prove actual or constructive possession by the defendant beyond a reasonable doubt may lead to a dismissal of the charges. A defense to the element of possession applies equally to simple possession and possession for sale.

If you have been charged with illegally possessing a drug or firearm, contact our skilled team of Phoenix criminal defense lawyers who know how to defend against drug and weapon possession charges and will vigorously defend your case. Give us a call at 602-667-7777 to schedule your free consultation. We’re available 24/7 to take your call. We offer affordable payment plans.