Understanding Constructive vs. Actual Drug Possession in Kentucky

In Kentucky, you can be arrested for drug possession if drugs were found on your body, but you also can be charged with possession if drugs were found in your house or your car, even if the drugs did not belong to you.  This is called constructive possession, and is treated just as if the drugs were found in your pocket, even if the drugs did not belong to you.

Both constructive and actual drug possession are criminal offenses that bring serious repercussions. Punishments can be severe, involving fines and jail time. In addition, a conviction means you will have a permanent criminal record that can negatively impact every area of your life, including your employment, education and housing opportunities, and your relationships.

While it is important to understand the difference between constructive and actual drug possession, in both situations it is difficult to try to fight charges on your own. Fortunately, there is help available from an experienced drug possession attorney who can explain the charges against you and the potential consequences of a conviction and provide guidance on the best course of action to take based on the specifics of your case. The Lexington drug possession lawyers at Dan Carman, PLLC provide skilled, aggressive legal representation to ensure that clients facing actual or constructive drug possession charges have been treated fairly; they will work tirelessly to get your charges reduced or dismissed.

Constructive vs. Actual Drug Possession in Kentucky Explained

In Kentucky, drug possession is defined as the knowing and intentional possession of a controlled substance such as marijuana, cocaine or heroin, and medications like OxyContin and Adderall without a valid prescription. Possession means the drugs are in your custody and under your control. If law enforcement officers find illegal drugs in your possession, they will be looking for signs that could indicate you were involved in distribution or even drug trafficking. The charges and consequences would then be ramped up considerably.

Actual Possession

Actual possession occurs when someone knowingly has direct physical control over a controlled substance. Examples include:

• The drugs are found on your body, such as being found in a pocket during a search by law enforcement.
• You are caught holding the drugs, injecting drugs or smoking drugs.
• The drugs are in a container you are carrying, such as a backpack or purse that also contains personal identification, like a driver’s license.

Constructive Possession

Constructive possession applies when a person does not physically hold the drugs but still knowingly exercises control over the drugs, and has the power and intent to control them. To be charged, you must simply have the drugs under your control; it is not necessary that they be found on your person. This can happen in situations where someone has access to a location where the drugs were found, such as in a car’s glove box, or in a storage unit belonging to you, or in a shared apartment or house.

The key difference between actual and constructive possession is that actual possession involves direct physical control of the drugs, while constructive possession means that while the drugs were not on your body, you were aware of them and had control over them because they were in an area you had access to.

Punishments for Drug Possession

Drug possession can be charged as either a felony or a misdemeanor. The seriousness of the charges depends on factors such as what substance is involved, whether this was your first offense or you had a previous criminal record, the circumstances involved (such as if you had drugs near schools or around minors), and the amount of the drug found in your possession.

Kentucky follows the federal schedules with some exceptions and divides controlled substances into five drug schedules. Schedule I drugs are considered the most dangerous and bring greater penalties, while Schedule V drugs are the least dangerous and bring lesser penalties.

Possession of Schedule I Drugs such as heroin, LSD, methaqualone, and ecstasy and Schedule II Drugs such as cocaine, methamphetamine and oxycodone bring Class D felony charges under KRS 218A.1415, punishable by 1–5 years in prison and fines of up to $10,000.

Possession of Schedule III Drugs such as ketamine, anabolic steroids and some codeine-containing medications, and Schedule IV Drugs such as Xanax, Valium and Ambien is a Class A misdemeanor for the first offense, punishable by up to 12 months in jail and a fine of up to $500. A second offense is a Class D felony.

Second degree or third degree drug possession. These charges include some prescription drugs and may be charged as a Class A misdemeanor, punishable by up to 12 months in jail and a fine of up to $500.

Possession of Schedule V Drugs, such as cough syrups with codeine, is a Class B misdemeanor, bringing up to 90 days in jail and fines of up to $250.

Marijuana Possession. Possession of up to 8 ounces is a misdemeanor with a penalty of up to 45 days in jail and a fine of $250.  Possession of more than 8 ounces means you have presumed intent to sell or transfer, leading to harsher drug-trafficking penalties.

While first-time offenders may qualify for deferred prosecution or probation instead of incarceration, for repeat offenders penalties often escalate to felony charges, even if the first was a misdemeanor, and penalties may double for subsequent convictions.

Defenses for Constructive and Actual Drug Possession

There are some differences in building a defense strategy for constructive or actual drug possession. As in any criminal situation, prosecutors have the burden of proving drug possession beyond a reasonable doubt. It is more difficult for them to prove constructive possession, because they would have to show that you had both knowledge and control of the drugs.  In some situations, there might be other people who had access to the location where drugs were found. While it is more difficult to defend actual possession, there are still valid defenses that an experienced criminal defense attorney can use to challenge the charge.

The following are some defenses used in drug possession cases:

• Violations of your constitutional rights: This would include illegal search and seizure, failure to obtain a warrant for entry, obtaining an improper confession, or failure to have your “Miranda rights” read at the time of the arrest. Evidence that was obtained unlawfully may be inadmissible in court.
• Lack of knowledge: You were unaware of the presence of drugs, or the drugs belonged to someone else. Prosecutors often use circumstantial evidence to establish knowledge, and this may not hold up.
• Lack of control: You did not have the ability to control the drugs, or another person had actual control over them. Prosecutors must demonstrate you had control over the property where the drugs were located, such as ownership, occupancy, or unrestricted access.
• Insufficient evidence: The prosecution has not proven your knowledge or control of the drugs.
• Problems with law enforcement: You may claim entrapment or that evidence was improperly handled, analyzed or stored.

Get Legal Assistance Now

If you or a loved one has been charged, or you suspect that you will be charged with drug possession in Kentucky, there is help available from the skilled and experienced drug defense attorneys at Dan Carman, PLLC. Kentucky criminal defense lawyer Dan Carman has decades of experience representing people arrested for drug crimes. At Dan Carman, PLLC, we know your rights and the rules and regulations police officers must follow; we also know how to use their mistakes to build your defense. We look for weaknesses in the prosecutor’s case, negotiate to get your drug charges reduced or dismissed, utilize expert witnesses, and are fully prepared to take your case to trial if necessary.

Time is of the essence when you are placed under arrest, so contact us immediately for a confidential consultation to begin building a strong defense strategy. Having our skilled and experienced legal team on your side can make all the difference in securing the best results possible.

Call Dan Carman today at 859-685-1055 for help.