The charge of constructive drug possession is one that frustrates a lot of defendants because it's an effective charge that prosecutors can level equally at everyone within range of a stash of drugs, even though it's clearly likely that only one person was the actual owner.
Constructive drug possession is basically a legal fiction that says that someone has actual control over the drugs even if he or she doesn't have them in his or her actual possession.
For example, say that you share a dorm room with another student. He uses marijuana. You know about it, because the room smells faintly of marijuana from time to time, but you don't say anything to your roommate because you figure that it isn't your business.
Unfortunately, if the dorm's resident assistance informs the police about the marijuana odor wafting from your room and the police show up with a search warrant, you could end up charged alongside your roommate if he suddenly swears the drugs aren't his.
Whether or not you get charged could depend on several different factors:
-- Where the drugs were found. If they were found in a community area of the dorm room, like the study area or bathroom, the prosecutor may have an easier time proving constructive possession against you both, rather than actual possession against your roommate. If they're found tucked in your roommate's sock under his mattress, the evidence would tend to favor an actual possession charge against your roommate.
-- How well the prosecution can prove that you knew about the drugs. It may be hard to deny your knowledge if you've complained about the smell, mentioned it to others or been there when the drug was being smoked. If you've never mentioned it to anybody, and you never actually saw your roommate smoking the drug, it may be difficult for the prosecution to prove you knew the drugs were there.
Constructive possession charges are circumstantial cases—so the exact situation has to be examined carefully in order to find weaknesses in the prosecution's case. However, since Texas has some of the stiffest penalties in the nation for drug possession, it's important to have an experienced defense attorney on your side.
For more information on our approach to drug charges, please visit our page.