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Drug Possession Defenses

If you're charged with possession of drugs, either for personal use or with intent to sell, a criminal defense attorney can determine which defenses might apply to your case. Some defenses challenge the stated facts, testimony or evidence in the case. Others target procedural errors. Some defendants challenge drug possession charges on the basis of an affirmative defense, meaning they introduce their own evidence that shows they were acting legally or the prosecution otherwise doesn't have a case.

This article discusses drug possession defenses, ranging from rare defenses to the more common strategies such as attacking the prosecution's case or an affirmative defense.

Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution provides citizens protection from the government. Under only certain circumstances is it legal for authorities to search a person's body or property. Search and seizure challenges are common in drug possession defense cases.

Illicit drugs found in "plain view," may be seized and used as evidence in a drug case. An example of plain view might be drugs or drug paraphernalia on a car's dashboard while an officer conducts a legal traffic stop. Another example would be a marijuana field that is visible to a plane overhead.

Consider the possibility that an officer pries open a car's trunk — without permission — and finds drugs. Or, for example, a low-flying drone is flown over a specific location and photographs a hidden marijuana field. These are a couple examples of searches that would be illegal without a search warrant.

If authorities find evidence through illegal means, the court will exclude that evidence at trial. Because the evidence found in an illegal search is often hugely important to the prosecution's case, the government will often drop its case if police violated your Fourth Amendment rights.

Drugs Belong to Someone Else

Criminal defendants facing drug charges often want to claim that the drugs do not belong to them, or that they had no idea the drugs were in their possession. But, this might not as strong of an argument as you might think. 

Police do not necessarily have to find drugs on your body or directly in your possession in order for you to be convicted on drug possession charges. Instead, prosecutors must usually only show that you had control of or access to the drugs.

At trial, a defense attorney might argue that there is a reasonable doubt that you knew about the drugs. However, this can be difficult if, for example, a passenger in your car was using drugs just prior to or at the time of your arrest. That is why it is a good idea to always speak to a criminal defense lawyer before you make any claims or arguments to the police.

Crime Lab Analysis

Not all supposed evidence is what it looks like. Just because it looks like cocaine or LSD doesn't mean it necessarily is. The prosecution must prove that a seized substance is indeed the illicit drug it claims it is by sending the evidence to a crime lab for analysis. A criminal defense lawyer can raise issues about errors or discrepancies in the crime lab analysis report. If there are issues, the defense can require the crime lab analyst to testify at trial.

Chain of Custody Problems

Another drug possession defense is that the drugs are missing. After drugs are seized during an arrest or upon execution of a search warrant, police usually secure them in an evidence room or locker. At trial, a defense attorney can challenge whether the drugs presented as evidence are in fact the ones taken from the defendant (and not from a different case).

This is often referred to as an attack on the chain of custody. Other chain of custody attacks involve the accusation that one of the officers who handled the drugs throughout the course of an investigation did so improperly. The likelihood that such a tactic will succeed depends on how many officers handled the drugs, and how well the police create and maintain records of such activity.


While law enforcement officials are free to set up sting operations, entrapment occurs when officers or informants induce a suspect to commit a crime he or she otherwise would not have committed. If an undercover officer scores drugs from or sells drugs to a suspect, that action is not necessarily entrapment.

When authorities go so far as to harass or threaten someone into committing a drug crime, entrapment might be a possible defense. This is a complicated matter of the law that a drug crime defense lawyer will be able to help navigate.

Medical Marijuana Exception

The medical use of marijuana is never a defense for federal drug possession charges but might apply in states where medical marijuana has been legalized. States with such exceptions to marijuana laws typically require a doctor's signed recommendation. But some of those states also provide for an affirmative defense by those arrested on marijuana possession charges who are able to show clear and convincing evidence of medical necessity.

Need Help With Drug Possession Defenses? Contact an Attorney

If you're facing drug possession charges, you may have defenses available to you that aren't immediately apparent. There are also other defenses not discussed here that may apply to your case. For example, the law generally assumes you are selling drugs if you have over a certain amount of the drug in your possession. However, you can argue that the drugs are for personal use, which could potentially reduce the penalties and may involve drug treatment as part of your sentence instead of more time behind bars. Other potential arguments include claiming you were under duress or threatened by others.

A criminal defense attorney can often reveal holes in the prosecutor's case. If you're dealing with a criminal matter, it's in your best interest to contact an experienced, local criminal defense attorney as soon as possible.

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