Mobile Menu

Call today at

Possible Defenses for Drug Charges

Getting arrested or charged with a drug offense can be a scary and stressful event. With the nation waging a “War on Drugs” since the 1980s, states have enacted tough drug laws that provide for serious penalties upon conviction. Even after you’ve served your jail time or paid your fines, drug convictions can have far-reaching consequences for your life, and be a roadblock when you try to get a job, rent housing, get a professional license, or get a college degree. Under current Ohio law, you’ll also lose your driver’s license for anywhere from six (6) months to five (5) years with a drug conviction.

Because of the possible consequences and how they can negatively affect your life for years to come, it’s important when you’re arrested — or even being investigated — for a drug offense that you get an experienced and qualified Columbus drug lawyer to represent you. Defenses to drug charges often turn on nuances of the law or on making a case that investigators violated your constitutional rights. A good Columbus drug lawyer will know how to find the weaknesses in the case built by police and prosecutors and defend you vigorously in court.

Any good defense strategy is always going to be highly individualized and depend on the facts and evidence in your unique case. However, there are some common themes in defending drug charges, and one or more of them may be useful in attacking the charges against you.

Possession Defenses

In drug possession cases, a prosecutor must prove beyond a reasonable doubt that you knowingly possessed an illegal substance and that you intended to possess it. A criminal charge breaks down into elements, and all of the elements must be proven in order for a jury to convict you. In a drug possession charges, those elements are:

  • You knew what the substance was
  • You had it in your possession
  • You intended to have it in your possession

A good defense against a possession charge will work to show that one or more of those things isn’t true in your case. Because knowledge and intent are fairly subjective concepts, those can be challenging for a prosecutor to prove — but also for you to defend against. If, for example, police search you and find a rolled-up joint in your jeans pocket, it may be difficult to argue that you didn’t know what it was or didn’t intend to have it, unless maybe you have a witness who saw someone forcibly shove the joint into your pocket over your objection right before police searched you.

Where there may be more leeway to defend against a possession charge is the concept of possession itself, which isn’t always as simple and straightforward as police finding pot in your pocket. In many cases, police may conduct a search of your vehicle or your residence and find drugs there that belong to someone other than you. If it’s your car or your apartment, they’re probably going to arrest you and charge you with possession even though the drugs weren’t on your person.

Generally speaking, possession breaks down into two concepts: actual possession and constructive possession. Actual possession is a scenario like the one above in which marijuana is in your pocket or otherwise on your person. If a cop walks up and finds you holding a needle full of heroin in your hand, or you have meth in a backpack that you’re carrying, that’s actual possession.

Constructive possession is more complicated, and involves the ideas of dominion and control. A prosecutor will argue constructive possession when the drugs are found in your home or your car, or maybe in a backpack that you left in a locker but aren’t actually carrying. To be in possession of a substance that isn’t on your person, you have to be able to reclaim it at any time. That’s what dominion and control means. So if you can reach into your backseat or get the backpack out of the locker and then have actual possession of the drug, you may be deemed to have constructive possession. The idea of constructive possession also applies when you give the substance to someone else to hold temporarily. If you have the ability to get it back from them, you have dominion and control.

Constructive possession tends to be the form that’s easier to defend against. Remember that your defense strategy just has to provide reasonable doubt that you possessed the drug. If, for example, the drug was found in your apartment, but was in your roommate’s bedroom or a common area that your roommate also had access to, there could be an argument made that you were not the one in possession.

Factual Defenses

Sometimes police and prosecutors make mistakes and misidentify a drug, or incorrectly interpret evidence or events in your case. They may even mistake you for another person. When there are mistakes in the facts of your case, your defense attorney may be able to get your charge dismissed or reduced.

Affirmative Defenses

An affirmative defense is one that admits you were in possession of a substance, but negates legal consequences of otherwise unlawful conduct. While the prosecution has the burden of proving that you violated the law, if you make an affirmative defense that burden of proof transfers to the defendant to prove by a preponderance of the evidence that their conduct was not unlawful.

Some examples of affirmative defenses include:

  • Medical Marijuana – Eligibility for possession and use of medical marijuana may be proven with a doctor’s certificate or note stating that you have a qualifying medical condition, the physician has reviewed risks and benefits with you, and the physician thinks those benefits outweigh the risks.
  • Unwitting Possession – Although you may have actually possessed a controlled substance, if you were unaware of the nature of that substance or did not intend to possess it, you did not willingly violate the law.
  • Valid Prescription – If you were in possession of controlled prescription drugs, but can show that you had a valid prescription at the time, your conduct was not unlawful.

Search and Seizure Defenses

Many drug cases are defended based on flaws in the process, such as the police arresting you without reasonable suspicion that you committed a crime, or searching your home or vehicle without a warrant and without probable cause that you were engaged in criminal activity.

The reason these kinds of procedural issues can be used to defend you against criminal charges is that the amendments to the U.S. Constitution are designed to protect you against the police overreaching or abusing their powers. In particular, the Fourth Amendment, which is part of the Bill of Rights, protects you against unreasonable searches and seizures. The amendment says that the people have a right to be secure in their “persons, houses, papers, and effects.” What this means in general is that to search you or your property, police first must obtain a search warrant, and the amendment says that to get a search warrant, police have to have probable cause.

However, there are some exceptions. Police can search your car or home without a warrant if there is evidence of criminal activity in plain sight, such as a bag of cocaine sitting out on the passenger seat of your vehicle when you get pulled over for speeding. Police also don’t need a warrant if you consent to a search, but it’s important to note that you are not required to voluntarily consent to a search. You have the right to refuse.

The Fourteenth Amendment guarantees you the right to due process before you are deprived of “life, liberty, or property” and says that all people must have equal protection under the law. That has been applied to hold states to the same standards as the federal government in terms of constitutional protections. It also means that both state and federal governments must use fair procedures before sentencing you to jail, i.e. depriving you of liberty, or before seizing your property in a search.

Some practices that may violate the protections built into the Fourth and Fourteenth Amendments include:

  • Warrantless Searches — As noted above, the Fourth Amendment requires police to get a search warrant before searching your home, car, or other property unless you voluntarily consent to the search. If police conduct a search without a warrant, then the burden is on them to prove that an exception applied and that the search is valid. If the court decides that the search was illegal, any evidence obtained from the search may be kept out of court.
  • Illegal Surveillance or Wiretapping — The reason the Fourth Amendment protects you from unreasonable searches and seizures is that people have certain rights to privacy from government intrusion, Surveillance or wiretapping invade a person’s privacy, and also require a warrant when used in criminal investigations. When police obtain evidence by listening to your telephone calls or using other forms surveillance without first getting a warrant, evidence obtained may be kept out of court.
  • Illegal Stops — The police are only allowed to stop you on the road when there is reasonable and articulable suspicion that your vehicle and or the occupants are violating the law, either by criminal activity or a traffic violation. However, a recent U.S. Supreme Court case says there doesn’t have to be an actual violation if police have reasonable mistake about the law, e.g., a police officer could stop you for having one busted tail light if he or she thinks that is a violation even if it actually isn’t.
  • Canine Searches — Police can’t use a canine to go on a fishing expedition. The officer has to have reasonable suspicion that there are drugs before bringing in a drug-sniffing dog to conduct a search. If you’re searched as part of a traffic stop, courts have said that your simply acting nervous isn’t enough to give reasonable suspicion for a canine search.
  • Illegal Seizures or Arrests — Police must have reasonable suspicion that you’ve committed a crime for an arrest. Courts have said that police can’t stop you on a mere hunch that you might be engaged in criminal activity, and can’t stop you just because you’re in a bad neighborhood where criminal activity occurs. If you make statements while you’re being detained illegally, those may not be admissible in court even if you made them voluntarily.

The consequences for police and prosecutors of these kinds of violations is that evidence obtained through these methods, including illegal substances that were seized or confessions that were made, may not be admissible in court. Without evidence, a prosecutor’s case crumbles and your defense lawyer may be able to get your charge dismissed or reduced.

Contact us today!

Charged with a drug crime? Contact us.

Drug charges are extremely complex and require a careful analysis of the evidence and a strong defense to achieve the best possible outcome. At Luftman, Heck & Associates, we will work on your behalf every step of the way to fight for your charges to be reduced, and at times we can achieve a dismissal. Contact us at or for a free consultation with a Columbus drug lawyer. We are available 24/7 to help you.

Get In Touch

Contact Us

Luftman, Heck & Associates LLP
580 E Rich St Fl 2
Columbus, OH 43215-5335


FAX: (614) 413-2886