Skip to Content
L. Patrick Mulligan & Associates, LLC L. Patrick Mulligan & Associates, LLC
Call Us Today! 937-685-7006

Common Defenses for Drug Possession Charges


Drug possession charges typically involve individuals having a controlled substance in their possession. However, it's crucial to note that these charges aren't limited to illegal drugs. They also encompass having legal substances without a valid physician's prescription.

Understanding common defenses for drug possession charges is paramount. It empowers individuals to recognize that they have avenues to fight these allegations. This awareness is the first step in building a solid defense. It involves strategically examining the case's facts and developing a customized strategy to address their situation.

L. Patrick Mulligan & Associates, LLC provides legal representation in Dayton. Contact us at (937) 685-7006 today.

Understanding the Elements of Drug Possession

Ohio Revised Code § 2925.11 covers drug possession, which expressly prohibits the obtaining, possessing, or using controlled substances. The government regulates these drugs, encompassing both illegal substances and those with recognized medical uses. Importantly, even legal substances may be subject to possession charges if they require a doctor's prescription for lawful acquisition and use.

Differentiating Between Actual and Constructive Possession

Differentiating between two distinct but significant concepts is crucial concerning drug possession charges: actual possession and constructive possession.

Actual possession refers to situations where the individual physically had the drug on their person. For example, they might have carried it in a bag or pocket.

In contrast, constructive possession occurs when the drug is not on the person but is nearby, and the person can take control of it. For instance, the drug is in a vehicle's glove compartment, and the individual has access and control over the vehicle.

Whether the possession is actual or constructive can significantly impact the legal arguments and defenses.

Possible Defenses Against Drug Possession Charges

Various defenses can be raised when confronting drug possession charges, each rooted in legal nuances and case-specific circumstances. In this section, we will explore a few of these defenses, shedding light on the strategies individuals might employ to challenge allegations and safeguard their legal rights.

Prescription Defense

In Ohio, individuals facing drug possession charges can mount a robust defense if they possess a valid prescription for the controlled substance in question. This defense hinges on the legal principle that if a person has a valid prescription, they should not face conviction, as they lawfully obtained and possessed the drug.

Section (B)(1)(d) of the Ohio Revised Code § 2925.11 provides that the statute does not apply to individuals who had the substance per a valid prescription by a licensed health professional.

However, for this defense to hold, specific criteria must be met:

  • Legitimate medical purpose: The controlled substance must have been prescribed for a legitimate medical purpose. This requirement underscores the importance of the medical necessity for the prescribed substance, ensuring that it is not being used unlawfully.
  • Prescription integrity: The prescription itself must not have been altered, forged, or obtained through deception. This requirement emphasizes the need for the prescription to be genuine and lawfully issued by a licensed healthcare professional.

Unlawful Search and Seizure Defense

The Fourth Amendment grants individuals the right to privacy of their person and possessions. According to this constitutional protection, law enforcement officials must have probable cause or a valid warrant to search and seize items. A judge or magistrate must issue the warrant, and it must be specific in detailing the areas to be searched and the items to be seized. Notably, authorities must conduct the search within the scope of the warrant.

If the search and seizure were conducted unlawfully—without probable cause or a valid warrant—this can be a potent defense strategy in drug possession cases. Evidence obtained through an unlawful search and seizure may be deemed inadmissible in court.

The exclusion of unlawfully obtained evidence can have profound consequences, potentially leading to the dismissal of charges. Without crucial evidence, the prosecutor's ability to substantiate the allegations is compromised, weakening their arguments and overall proof.

Lack of Knowledge Defense

One viable defense strategy in drug possession cases revolves around a lack of knowledge. In certain situations, individuals may find themselves facing possession charges despite being unaware of the presence of drugs in their vicinity.

Scenarios involving lack of knowledge include the following:

  • Unintentional possession: Individuals may unknowingly come into possession of controlled substances. For instance, if a friend leaves drugs in a shared vehicle or living space without informing the person, they might be unaware of the presence of the substances.
  • Inadvertent transport: Another scenario involves unwittingly transporting substances. For instance, if someone borrows a vehicle or carries an item for a friend without knowing its contents, they may face possession charges.

Establishing that the accused had no awareness or control over the presence of the controlled substances is crucial to employing a lack of knowledge as a defense. This step can involve providing evidence that supports the claim of innocence, such as demonstrating that someone else left the drugs or that the accused had no reason to suspect their presence.

Chain of Custody Defense

In drug cases, the proper handling of evidence, often referred to as the chain of custody, plays a pivotal role in establishing the reliability and integrity of the evidence. This process is crucial from when evidence is collected to its presentation in court.

Law enforcement officials are bound by strict protocols when collecting, recording, and analyzing evidence. The chain of custody is a documented trail detailing the evidence's chronological history. This history includes who had custody of the evidence, where it was stored, and any transfers or changes in possession.

Mishandling of evidence can introduce contamination, a critical concern in drug cases. Contamination may occur at various stages, from collection to testing. Possible contamination is particularly significant in cases where substances need to be tested to determine their nature. If the chain of custody is compromised, it can lead to contamination.

Contamination can potentially produce inaccurate testing results, indicating the presence of a drug when, in fact, there might not be one. This error introduces a significant degree of doubt regarding the reliability of the evidence presented by the prosecution.

Defending Against Drug Possession Charges

For individuals navigating drug possession charges, it is crucial to recognize the complexity of legal proceedings. Each case is unique, and seeking personalized legal advice tailored to specific circumstances is imperative. Criminal defense lawyers can assess the intricacies of the case and guide individuals through practical strategies.

L. Patrick Mulligan & Associates, LLC stands ready to assist individuals in Dayton facing drug possession charges. Contact us online or at (937) 685-7006.