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Loudoun County Attorneys > Blog > Criminal Defense > If Drugs Were in the Car, Am I Guilty of Possession?

If Drugs Were in the Car, Am I Guilty of Possession?


Not necessarily. Proximity is the major element in a Section 18.2-250 or related matter. However, it’s only one of three elements of possession. The other two are outlined below. The state must establish all three elements beyond any reasonable doubt. So, essentially, prosecutors must amass an overwhelming amount of evidence on each point. Two out of three won’t do.

If a Leesburg criminal defense lawyer lays the foundation for a reasonable donut during the pretrial process, prosecutors normally agree to favorable plea bargain agreements, such as charge reduction plea bargain agreements. Several lesser included offenses are available in drug possession matters, such as reckless conduct. Such lesser included offenses don’t have the same collateral effects as drug possession.


In Virginia, a defendant could literally be sitting on illegal drugs and not “possess” them, at least for criminal law purposes.

Assume Jack is at a house party. He doesn’t know anyone at the party very well and no one is using drugs. Police arrive in response to a noise complaint outside and search the house. They find a stash of marijuana under the sofa where Jack was sitting.

Before this case even makes it to court, prosecutors must prove the search was legal. If officers received a complaint about outside noise, they probably had no business going into the house.

If the judge allows the drugs to be used in evidence, the state must prove, again beyond any reasonable doubt, that Jack knew about the drugs. This is one of those few instances that the “I didn’t know it was there” defense might hold up in court. The circumstantial evidence (no drug use and no close personal connection) points against knowledge.

All bets are off if Jack says he knew about the drugs and the officer properly Mirandized him (you have the right to remain silent, etc.) before they questioned him.

Now assume Jack is in the back seat of a friend’s car. He knows his friend sells drugs on the side and he knows that his friend keeps drugs in the glove compartment. But the glove compartment is locked and Jack doesn’t have a key. Clearly, Jack didn’t control the contents of that glove compartment. His defense is even stronger if someone else was sitting in the passenger seat, denying Jack easy access to the contents.


But, we’re getting a bit ahead of ourselves. In a pretrial hearing, the state must prove, once again beyond a reasonable doubt, that the substance in evidence (marijuana, for example) is the same substance named in the charging instruments,

Marijuana, which is illegal, is physically identical to hemp, which is legal. Only an expensive THC content test determines the difference.

The state might have other illegality issues as well, especially in synthetic marijuana cases. Frequently, the substance that the defendant possessed wasn’t illegal at the time of arrest. Furthermore, unscientific “field tests” are often inaccurate. Sometimes, illegal substances are combined with legal substances, like bartenders water down liquor. Other times, the “field tests” are flat wrong. Not long ago, a Florida man spent several weeks in jail for alleged possession of heroin, a substance that turned out to be Tide laundry detergent.

Connect With a Detail-Oriented Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, home, and jail visits are available.



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