Possession
When dealing with these charges, the State must prove that the accused was actually in possession of the substance in question. There are two types of possession that can be argued by the State:
(1) Actual possession – this occurs when the substance is found on your person, such as in a pocket, backpack, handbag, etc.
(2) Constructive possession – this is when the substance is found nearby, in an area you can reasonably assume to have dominion over, such as the glove compartment in a car.
While these types of possession are functionally the same in the eyes of the law, constructive possession requires the State to prove that you were in a position with both thepower and intention to exercise control over the substance.
Additionally, the State must prove that the drug is what they claim it to be, and the amount in question matches the charges being filed. In Georgia, testing these factors usually happens through GCIC, the Georgia Crime Information Center. Without official testing of the substance, it is much more difficult for the State to prove you were actually in possession of whatever substance you are being charged with possessing.
Defenses
There are a number of viable defenses in Georgia for someone charged with felony possession of marijuana. Some of the typical defenses are as follows:
(1) Unwitting Possession – this is applicable if you were unaware that you are in possession of the substance in question. For example, a package for a house two blocks over is incorrectly delivered to your doorstep. You drive the package to its intended recipient, and in the process, you run a stop sign and are pulled over. The officer searches your car and finds marijuana in the package. Your lawyer can use this to prove you never intended to possess the marijuana.
(2) Lack of Possession – this defense is applicable if the State intends to charge you with constructive possession. Your lawyer can argue that proximity to the drug alone does not satisfy the requirements for constructive possession. For example, if you are at a friend’s house for a party, and the cops arrest you near a hidden stash of marijuana, they may have difficulty proving constructive possession, as proximity alone does not satisfy the requirements for the charge.
(3) Illegal Search and Seizure – If marijuana is discovered on your person during a search by police, an experienced attorney can investigate whether the police officers had a constitutional basis for performing the stop and search. If the search is found to be unconstitutional, then as a result, everything discovered as a result of the search is inadmissible in court. As a result, your case can be thrown out due to lackof evidence.
