Can I be Charged with Possession if the Drugs Were Not on Me?

A question we’re frequently asked is, “Can you be charged with drug possession if the drugs aren’t physically on you?” In Georgia, the answer is yes. The Georgia government can charge you with drug possession for drugs that aren’t on you. They only need to be in the vicinity close to you for a drug possession charge to be valid. In this blog post, we’ll explain how these charges work and how you can defend against them.

How Do Possession of Drugs Charges Work?

Possession of drugs charges are outlined in Georgia Code § 16-13-30, which says the following: “Except as authorized by this article, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance.”

When it comes to possession of drugs that weren’t actually on you, “have under his or her control” is the key phrase here. You are assumed to have control over the vicinity you’re in, especially if it’s something you own, like your car or home. They call this the power and intention to exercise control over drugs. This argument connecting you to contraband that is not on you is called constructive possession.

What Is the Best Defense In a Possession of Drugs Case?

If you’re charged with drug possession on the basis of constructive possession, you want to hire an experienced defense lawyer who knows how to defend you on drug charges. The argument they’ll make is that all the government has is mere spatial proximity. They don’t have hard evidence that you purchased the drugs, possessed them, or had them under your control. They’ll need to show more to definitively prove your guilt. You need a criminal lawyer who’s well-versed in drug possession cases enough to raise this mere spatial proximity defense.

What Are the Types of Drug Possession Charges?

The severity of a drug possession charge is determined by the schedule that drug falls into. There are five schedules: I, II, III, IV, and V. These are ordered based on the likelihood for that drug to be abused from greatest to least, with Schedule I drugs having the highest abuse potential.

Are There Exceptions to Schedules? 

Some drugs are exempt from schedules based on an allowance in Georgia Code § 16-13-29.1 (2022). This lists a series of non-narcotic substances that would ordinarily fall under a schedule. However, they are exempt because they are sold as over the counter medications. These include everything from certain asthma inhalers to cough syrups. You cannot be charged for drug possession if you purchase and possess any of these medications.

What Are the Consequences of a Drug Possession Conviction in Georgia?

All drug possession cases, regardless of the schedule the drug falls under, are considered felonies in Georgia. Most offenses carry a minimum of one year in prison, but possessing schedule I or II drugs comes with a minimum of five years in prison for the first offense, and a minimum of 10 years for any subsequent offense. There are a few specific exceptions based on the amount and type of schedule I or II drug possessed, however. For example, possessing between one and four grams of most schedule I or II drugs comes with a minimum of one year in prison, much like for schedule III, IV, and V drugs.

Don’t Let a Drug Possession Conviction Change Your Life — Contact Brett Willis Law Today

Since drug possession cases are considered felonies, they can change your life in the blink of an eye. Going to prison, temporarily losing your right to vote, facing limited schooling options upon release, being separated from family and friends, all come with disastrous consequences. At Brett Willis Law, we specialize in drug law and have defended countless clients in the past. We’ll use every defense with the aim of getting your life back. Contact us today if you need help with your possession of drugs case.