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Understanding your Rights When Arrested for Drug Possession

Written by David Jones on September 2, 2018

We never believe we’re going to have an unpleasant encounter with law enforcement and get arrested for drug possession, but it can happen to just about anyone. Whether you’ve been arrested many times, or this is your first run-in with the law, knowing how to respond will lessen your chances of making a costly mistake.

What is Drug Possession?

Possession of certain illicit drugs and substances can violate both federal and state laws. Though the penalties vary from state to state, the elements that lead to an offense are generally similar across the board.

Prosecutors must be able to prove, beyond a reasonable doubt, that the defendant (a) was aware that the drug in question was a controlled substance, and (b) knowingly had possession of the controlled substance. There’s also something called “constructive possession,” in which the defendant has access to the controlled substance (even if it wasn’t necessarily on his or her person).

For example, an individual may be charged with possession if drugs are found under the bed or in the trunk of the person’s car. Drug possession laws typically fall into one of two basic categories: (1) simple possession (for personal use), and (2) possession with the intent to distribute.

The latter category typically carries stiffer penalties upon conviction, compared to simple possession, as the goal is to punish and deter drug dealers,” FindLaw explains. “To prove possession with intent to sell, prosecutors may present evidence such as digital scales, baggies, large quantities of the drug, large amounts of cash in small bills or testimony from witnesses.”

Although possession with the intent to distribute carries far more serious penalties, even a simple possession charge can have negative effects on your personal and professional life.

Knowing Your Rights

If you find yourself in a situation where you’re being questioned, searched, or arrested by the police under suspicion of drug possession, it’s imperative to understand your rights and make smart, clear steps to protect your own best interests.

Here are some of the dos and don’ts:

  1. Remain Calm

Encountering officers when you have drugs in your possession (or when they believe you do) is going make your heart race. The first step is to stay calm. Turning combative will get you nowhere.

  1. Stop Yapping

Most people are aware they have a Fifth Amendment right that guarantee they may remain silent and refuse to speak. They also know that nothing they say after being arrested may be used in a court of law if their Miranda rights haven’t been read to them.

But what you may not realize is that the police do not need to Mirandize you if you haven’t been detained. Many officers delay making an arrest so that they can get the information they need first without having to read Miranda rights.

Any information you provide during this window of time could be used against you. In addition to being quiet, you should ask if you’re free to go.

  1. Don’t Admit Guilt

Unlike courts of law, police assume guilt when they arrest a person,” attorney John Marshall explains. “But, despite what police may tell you about evidence against you, the prosecution knows it must be able to prove its case in court to obtain a conviction.”

No matter how many times a police officer on the scene tells you you’re guilty and you just need to ’fess up, hold your tongue and wait for your day in court. Admitting guilt in the heat of the moment is never a good move.

  1. Contact an Attorney

As soon as it’s made clear that you’re going to be arrested, ask for your attorney. Not only does this mean the police officers may not ask you any more questions, but it also gets the ball rolling in your legal defense.

Look Out for Your Best Interests

Most people expect they will never find themselves being arrested for drug possession, but it can happen. If you’re ever in a situation where the police search for and find a controlled substance in your direct or indirect possession, it’s vital for you to get legal assistance as soon as possible. Any delay could come back to hurt you.