Possession of Drugs: Defences

Possession of Drugs: Defences


If you are charged with drug possession, either for personal use or with the intention of selling them, a lawyer can determine which defenses might apply in your case if you plead not guilty. Different states have addressed the problem of illicit drugs in different ways, while the federal government tends to have the strictest guidelines for prosecuting drug cases. However, the defenses for possession of drugs are fairly universal in all states. Some defenses challenge the facts stated, the testimonies or the evidence of the cause; others point to errors of procedure, generally to violations by search and seizure; and some defendants dispute the charges for possession of drugs by appealing to an affirmative defense, such as the right to use medical marijuana in some states.

Here are some defenses to charges of drug possession, some more frequent than others:

Search and seizure improper

The fourth amendment of the Constitution of the united States guarantees the right to due process of law, including legal procedures of search and seizure before an arrest. The problems of search and seizure are quite common in cases of possession of drugs. Illegal drugs discovered in “plain view”, such as in the glove compartment of a car after a traffic light legal, can be seized and used as evidence. However, the drugs discovered in the trunk of a car after it is opened with a lever, with the assumption that the suspect did not grant permission, may not be submitted as evidence. If they violated the rights of the defendant under the fourth amendment, the drug may not be used in a trial, and is generally dismissive of the charges.

Drugs belonging to third parties

A defense common to any criminal charge it is simply to say that you did not. The equivalent of the possession of drugs is to say that the drugs are not yours or that you had no idea that they were in your department, for example. A defense attorney will pressure prosecutors to prove that the marijuana discovered in the car really belonged to their client and not to one of the other three passengers.

Forensic analysis

Just because something appears to be cocaine or LSD, doesn’t mean it is. The prosecution must prove that a substance seized it really is the illicit drug that they claim it is to send the evidence to a forensic laboratory for analysis. The analyst of the forensic laboratory must testify in a trial so that the prosecution can prove their accusation.

Drugs missing

A good lawyer will ensure that the attorney can have with the drug is real for which you are charged to your customer. Similar to the need for a forensic analysis, the prosecutor’s office that lose or do not have the drug is real risk the dismissal of your case. The drugs seized are generally moved several times before ending at the box of tests, for which you should never assume that the tests still exist during the trial.

The drug tests are fake

This can be difficult to verify, since the affidavit of the police officer has a lot of weight in court. Also, other officers may refuse to snitch on one of their peers. However, your attorney can file a notice that, in case of receiving the judge’s approval, requires the department to release the statement of the official in question. This file contains the names and contact information of those who made the demand, to those who may question your lawyer or a private investigator.


Although the police officers can organize operations surprise, the ambush occurs when officers or informants induce a suspect to commit a crime that otherwise would not have committed. If an informant pressures a suspect to sell drugs to a third party, for example, this could be considered a trap. As a general rule, the ambush occurs when the state provides the drugs in question.

The exception of medical marijuana

The medicinal use of marijuana should never constitute a defense in a federal court, but it can be in states in which medical marijuana is legalized. States with such exceptions to marijuana laws typically require the recommendation signed by a medical doctor. However, some of these states also provide an affirmative defense if arrested on charges of possession of marijuana can prove a medical necessity clearly and convincingly.

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