Definition of "Possession" for MIP (or Marijuana or Controlled Substances)

Question: My daughter was in a car that was pulled over and one of the passengers had been drinking.  When the car was pulled over, it was searched and there were several unopened beers present. 

My daughter was being driven to a restaurant from school and did not know alcohol was present in the vehicle when she entered.  All of the passengers were charged with MIP.  3 of them have already pleaded guilty.

Is she automatically guilty of MIP if she is in proximity of alcohol?

Answer: Absolutely Not. And I don’t just mean that in the ‘gut instinct’ criminal defense lawyer ‘no-one-is-automatically-guilty’ of anything way. There’s more to it than that.

To prove any charge involving possession, whether it’s for a minor and alcohol, or an adult and marijuana, cocaine, etc., the State needs to prove that the defendant knowingly or intentionally possessed the contraband.

If a jury, or a judge in a bench trial, believes that the accused did not knowing possess the substance they are charged with possessing, they will be duty bound to acquit.

On a charge that is ‘only a Class C misdemeanor,’ it is sometimes easier, and undoubtedly less expensive, to sign up for a deferred disposition, than it is to hire a lawyer to go to trial.

But on cases like Class B misdemeanor Possession of Marijuana (or higher felony possession charges), where you need a defense lawyer, unknowing possession is always a valid defense.

See also:  Jury Selection and the Unwitting Possession Defense and Definition of Possession in the Texas Penal Code

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Comments (6) Read through and enter the discussion with the form at the end
Steve - April 19, 2008 9:45 PM

How about a PDP where the person was taking the DP away from his house to dispose of it, having made the decision to stop doing D, and gets pulled over and subsequently searched?

Obviously, knowing and intentional possession, but “mens rea” /intent?

There is a lot more to the story relative to at least 7 other tags, but I was just curious what your thoughts would be pertaining to this post.

Donna - April 24, 2008 9:20 AM

My 20 year old son was pulled over in Eastland county, TX, for speeding and less than 1/2 an ounce of marijuana was found in the glove box when the vehicle was searched. The passenger admitted it was his and was put in the glove box several days before and he forgot about it. My son didn't know it was there. Both were arrested. The DA offered my son 1 year probation and loss of licence. My son said he'd like to consult an attorney and the DA said if he did that, they'd take probation off the table and go for 6 months maximum in the state prison. I found out later than this crime would put him in the county jail, not state prison. Now 4 months after caving in to the D.A.'s threats, it has cost him his license, therefore his insurance, therefore his vehicle, therefore his job as a courier in Houston. Also, with no vehicle he is not able to meet the probation requirements (60-80 job contacts per month which is crazy, and 8-10 AA meetings 25 miles each way plus his fees). Now he is in danger of not meeting his probation requirements, getting sent back to Eastland and getting the maximum 6 months in jail, and missing the birth of his first child. What little money he has been trying to save to take care of their baby is going to the courts. This is RIDICULOUS. You take a young person who is trying to get started in life and do what he is supposed to do, and the DA under the cover of law lies to him, takes away every tool he has to support him and his family, and possibly prevents the bonding experience with his child at birth. How is this supposed to help society? I imagine there must be people who have had this happen to them, and since they lost all their legal means of making a living, are forced to do whatever it takes to get money and drive with no job and no insurance. How short-sited is this by the court system?? The punishment for this type of crime is so disproportionate. And the laws that say you lose your license even if you were not actually using or in possession of a drug is also senseless. This just causes more crime by people driving illegally. My son wants to just go back and serve his time out in Eastland county, but I am trying to figure out how this can be done without his missing his child's birth in 5-1/2 months. Why can't the courts see how much residual damage is done to society by this? The actions of the court to my son has not stopped a problem or prevented a problem to society. It actually prevents people from being productive members by knocking them down and making is so hard to get back up. And how can probation requirements be based on the whims of the court in whatever county a person is arrested in (60-80 documented job contacts a month)????

marissa - August 8, 2009 2:20 PM

My son and I live in the state Michigan. He and his friends were at a park that was known for kids going there to drink or use drugs. The police showed up and asked them if they were smoking pot. Some were smoking pot, and admitted to it. My son admitted to it as well. All the parents of the children were called to pick the children up from the park. My son told me he was scared because he knew one of the boys did have pot in the park, and because I always told him that even if he was not doing anything, if he was with someone that had drugs he would get in trouble too no matter what he said, he told the cop he was smoking too. There was no test taken at the scene. Afe days later we recieved aletter in the mail stating that there was a warrent for his arrest for possession of marajauna. My son is 17 years old, he plans on attending college next year. I feel like I should get a lawyer for him but I'm not sure if this this situation requires a lawyer, or if he should plead not guilty because he did not have marijauna. He has learned his lesson and I do not want to leave him open to having a judge make an example of him, nor do I want this incident to effect his future.

bill - October 24, 2012 7:45 AM

i was pulled over in my car for eating a red light says the cop he searched my car and found a roach in between the seat and consol and i was arrested for possession of marajuana.i tried to tell the cop that it wasn't mine.what can i do

jamie - December 5, 2012 12:55 PM

i was weith my sister and friends we where p[arked and amoking weed in a car the cops came buy and asked the driver if we been smoking the driver said no the cop gave him one last chance and he sauid no again they then started arresting all of us we got a book and realese the hole time i was honst and respectful to the officers the courts date is on the 17th in missourie i liver in washingtoin ium hear on vacation and im supost to leave the 11th idk what to do??

Ricardo - December 8, 2012 2:24 AM

babbsf / September 11, 2011On most cases Legal Aid attorneys will fight just as hard as one you spend a arm and a leg on and they chose to help peolpe whom could not afford an attorney and went to the same schools, etc, just want to sacrifice the plush life to help others. Some legal aid Attorneys charge a fraction of what so ever if it is a settlement involved for the procedures,etc. But most Will help minorities and those whom otherwise would not have legal representation as they can not afford it. There is a Legal Aide office in most states and can be found in the yellow and white pages and not usually by Attorneys names,Reply

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