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Drug Possession

Also called simple possession, drug possession consists of knowingly having an unlawful drug and having a usable quantity. 

Traces of having an unlawful drug is not sufficient for drug possession.  Depending on the jurisdiction, usually different prosecutorial agencies have set measurable amounts for considering a quantity to be a usable amount.  Usable amount does not mean enough to actually affect the user; it is not necessary to have an amount one can actually get high off of to still constitute a usable amount.

An unlawful drug would be one that you do not have permission to have and/or have a prescription for.  Drugs which can be obtained by prescription are still unlawful if one does not have the prescription for it, ie. Vicodin. 

If you did not know you had the drugs (forgot it was in your purse, someone placed it in your bag), or if you did not know it was a drug (thought it was “bunk” or thought your marijuana was cat nip), you cannot be convicted of simple possession. 

One of the defenses to simple possession is transitory possession.  In order to prove this defense, one must show your only purpose in possessing the substance was to destroy it or somehow get rid of it.  For example, defendant’s friend has a meth problem so defendant decides to take all of his friend’s meth and dispose of it at a different location secretly.  Defendant would know that it’s a drug, would possess it and it would be a usable amount, satisfying all elements to be convicted of drug possession. However, if the defendant is possessing only momentarily for the purpose of disposal, it is a defense.  Momentarily generally means only so long as to dispose of it as reasonably possible.  Putting it in one’s pocket, walking away and then waiting a week when defendant is then caught with it in their pocket, stating they intended to dispose of it, would not qualify as a defense, or it would be highly unlikely a jury would think of that as plausible. 

Elements and crimes vary from state to state.  If you or someone you know is charged with any crime, as always, you should consult your local state Barred attorney, preferably one practicing only criminal law.  You can always look for your local criminal attorney at

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