DRUG POSSESSION DEFENSES- UNWITTING POSSESSION

As a criminal defense lawyer who handles drug crime cases in Washington, I have a number of defenses at my disposal in challenging a possession charge, whether it be simple possession of marijuana or possession of methamphetamine, cocaine, or heroin with the intent to sell.

The crime of possession of a controlled substance or Violation of the Uniform Controlled Substances Act (VUCSA) is what is called a strict liability offense. What that means is that the prosecutor does not need to prove that you had any INTENT to possess the controlled substance.

Most crimes have some sort of intent element that the prosecutor must prove. For example, in a burglary case, the prosecutor must prove that you intended to commit a crime in the building in which you unlawfully entered. In an assault charge, the prosecutor must prove that there was some sort of intent to inflict injury to another person. In a theft case, the prosecutor must prove that you had the intent to steal something. This is not so with illegal drug possession.

Under Washington law, the prosecutor can prove you are guilty of possession of a controlled substance whether you intended to possess the drugs or not. But there is still the defense of “unwitting possession.” Unwitting possession is what is called an “affirmative defense.” As you may well be aware, the burden is on the state to prove beyond a reasonable doubt that you are guilty of the crime they are charging. With an affirmative defense, the burden is now on you to prove you are innocent.

You may be thinking that this in unconstitutional because you have long heard that we are all innocent until proven guilty. Well, because drug possession is a strict liability crime and the state doesn’t have to prove you intended to possess illegal drugs, the courts say that shifting the burden back to you to prove that you did not know you were possessing a controlled substance is not unconstitutional.

So here’s the good news: you do not need to prove beyond a reasonable doubt that you were unaware that you were in possession of drugs. You only must show by a “preponderance” that you did not know you had possession. That means you are showing the judge or jury that you PROBABLY did not know you were in possession. As you can imagine, this is not always an easy defense, but many drug cases are not easy. A trained and skilled trial lawyer with knowledge of Washington drug laws can help you with this defense and either obtaining a dismissal or a verdict of not guilty.