The Differences Between Actual and Constructive Drug Possession in Wisconsin

 Posted on October 28, 2022 in Drug Charges

When it comes to drug possession charges in Wisconsin, there are two types of possession that can lead to criminal prosecution: actual possession and constructive possession. The type of possession the prosecution chooses to allege will have an impact on what kind of defenses might be available to the defendant. Today, we will look at the differences between these two types of possession, as well as some possible defenses for each.

Actual Drug Possession

Actual drug possession is just what it sounds like—the drugs are found on the person who is charged with possession. This can be in the form of drugs being found in a person's pocket, purse, or even in their hand. If drugs are found in any of these places, it is going to be very difficult for the defendant to assert any type of defense because it is going to be assumed that they knew the drugs were there and that they intended to use them.

Possible Defenses to Charges for Actual Possession

If the police find drugs on someone’s person, that does not mean that a conviction is guaranteed. There are still some possible defenses that can be effective. One such defense is illegal search and seizure. If the police conducted a search without a warrant or without probable cause, anything they found as a result of that search cannot be used against the defendant in court. Another defense is entrapment. This occurs when law enforcement encourages someone to commit a crime they would not have otherwise committed.

Constructive Drug Possession

Constructive drug possession is a little bit different than actual drug possession because it does not require the drugs to be found on a person. Instead, constructive drug possession can occur if drugs are found somewhere else—like in a person's car or home—and there is evidence to show that the person knew the drugs were there and had at least some control over them.

For example, if drugs are found in a car and the defendant was the only one driving the car at the time, it can be assumed that they knew the drugs were there and had control over them. However, if there were other people who had access to the car, it might be more difficult for prosecutors to prove that constructive drug possession occurred.

Possible Defenses Against Constructive Drug Possession

Much like with actual drug possession, there are still some possible defenses that can be asserted even if constructive drug possession is charged. One possible defense is a lack of knowledge. If prosecutors cannot prove beyond a reasonable doubt that the defendant knew that drugs were present, then they cannot be convicted of drug possession. Another possible defense is lack of control. This occurs when there are other people who had access to wherever the drugs were found (like a car or house) and so prosecutors cannot prove that the defendant had control over them. 

Work With a Waukesha Criminal Defense Attorney

If you are facing drug possession charges, an experienced Waukesha County drug crimes defense lawyer from Bucher, Wolff & Sonderhouse, LLP can help protect your rights. Call 262-232-6699 for a free consultation and case review with a member of our team today. 

Sources:

https://docs.legis.wisconsin.gov/statutes/statutes/961/iv/41/3g/e

https://www.law.cornell.edu/wex/constructive_possession