What’s the Difference Between “Actual” and “Constructive” Possession in Virginia?

In Virginia, an officer can charge you with possession even if you don't have drugs on your person. The presence of other forms of evidence can also lead to possession charges.

Drug possession charges in Virginia are generally based on either the “actual” or “constructive” possession of a certain controlled substance.

If you are charged with actual possession of an illegal substance, it (usually) means that an officer found drugs on your person.

For example, if an officer finds drugs in your pocket, purse, or wallet, they don’t need to “prove” that the drugs are yours.

This is because the drugs were technically in your possession when the officers found them.

On the other hand, an officer may charge you with constructive possession when there are other forms of evidence that point to you having “control” over illegal drugs.

For example, if an officer finds drugs in your car, they might charge you with possession on the assumption that these drugs belong to you.

While actual possession is relatively easy to prove (since an officer only needs to find drugs on your person), construction possession is a whole other matter entirely.

In this article, we’ll discuss the differences between these two different types of possession.

We’ll also go over what the requirements are to prove each type of possession under Virginia law.

Defining Constructive Possession in Virginia

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As noted above, constructive possession essentially means that an officer found drugs near you (or otherwise in a location you “control”), but not on your person.

For example, if the officer finds drugs in your house or in the glove-box of your car, they could choose to charge you with constructive possession.

In this scenario, the prosecution would have to rely on corroborating evidence to convict you.

According to Virginia law, there are two requirements the prosecution must prove to charge someone with constructive possession of an illegal substance:

  1. The defendant must have knowledge of both (1) the presence and (2) the type of the drug (its “nature” and “character”).
  2. They must have “dominion and control” over the substance. For example, if it’s in your car, and you have a key to your car, the substance is in your control.

Or, as noted in the often-cited case Drew v. Commonwealth:

“To support a conviction based upon constructive possession, the commonwealth must point to evidence of facts, statements, or conduct of the accused, or other facts or circumstances, which tend to show that the defendant was aware of both the presence and character of the substance, and that it was subject to his dominion and control.”

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)

But what if someone left drugs in your car or house without your knowledge?

What if you’re throwing a party and someone decides to smoke marijuana in the bathroom? Can you still get a constructive possession charge?

The answers to these questions will depend on how well the prosecution in your case can prove the factors listed above.

Knowledge that the Drug is Present

This is a somewhat difficult element for the Commonwealth to prove.

Essentially, if the police only find drugs near you, this fact by itself isn’t enough evidence to convict you of drug possession.

Instead, they must find other, corroborating evidence that you knew the drug was present in the first place.

This corroborating evidence can take the form of actions, statements, or anything else that shows guilty knowledge.

For example, statements made before or during the discovery of drugs might be taken as proof of knowledge, even if you don’t mention anything specific.

Guilty or suspicious behavior and even hand gestures can also be used as corroborating evidence of knowledge.

As another source of evidence, the officers may look for evidence of the drug’s effects on your behavior or body.

For example, if there’s a strong marijuana odor, or if you show signs of being under the influence, the officers will take note of these facts.

Finally, the actual location of the drugs will also play a significant part in your case.

If the drugs are out in plain sight, or are in a place where people are likely to have seen them, the defense of not knowing they were there becomes weaker.

Control Over the Substance

This requirement is a bit easier for the prosecution to prove than showing you had knowledge of the drug.

Essentially, in order to be charged with the possession of drugs, you must have “control” over them.

This means that they must be in a place that you can easily access.

For example, if an officer finds drugs in your bedroom, this will usually be an indication that you had control over the drugs.

Similarly, if an officer finds marijuana in your friend’s glove-box while you’re a passenger, they may be able to show that you had “control” over these drugs since they were within reach.

On the other hand, if your roommate has drugs locked up in a safe under his bed, it is unlikely that you exerted control over them.

Finally, remember that the presence of residue is sufficient evidence to convict someone of possession in Virginia, even when no larger quantity of drugs is found.

Conclusion

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Actual possession is easier to prove than constructive possession.

In the case of actual possession, drugs are found on the defendant’s person.

For this reason, it’s simple to prove that the accused had knowledge of drugs, since they had actual, active control over the substance.

Constructive possession, on the other hand, is more difficult to pin down.

For this reason, prosecutors often have to use circumstantial evidence to prove constructive possession.

To get a conviction for constructive possession, Virginia law requires that the prosecution prove (1) the defendant knew about the drugs, and (2) that they had control over the drugs.

You’ll want to talk over your options with a lawyer well in advance of your trial in order to find the strategy that works best for your specific situation.

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