I Have Been Arrested and Charged with Simple Possession. Now What?
What is the offense of simple possession?
The offense of simple possession in Tennessee is found in the Tennessee Code at Title 39, chapter 17, part 418, (T.C.A. 39-17-418). Simple possession in Tennessee is a misdemeanor offense punishable by up to 11 months and 29 days in jail and a $2,500 fine.
The criminal offense of simple possession, as the name indicates, usually means that you possessed a controlled substance, but did so for personal use and were not selling the drug. In Tennessee simple possession is defined as:
- Possessing or casually exchanging1 any controlled substance or distributing one half ounce or less of marijuana2
- Without a valid pharmaceutical prescription (Note: some drugs do not qualify as lawful pharmaceutical drugs and may not be possessed under any circumstance).
Simple possession can become a felony in Tennessee upon a third conviction for simple possession, or where there is casual exchange to a minor, or if the drug is possessed in a protected zone, such as near a school.
To determine what defenses may be available, we do what is done with every criminal offense. We look at the facts of the case and compare them to the elements of the crime to determine if there is a viable defense to claim that the client is not guilty. In a simple possession case, the defense will usually involve an assertion of lack of knowledge that the drugs were present or lack of possession of the drugs, even if the defendant knew about the drugs.
The defense of lack of knowledge.
If drugs were located, can it be proven by the State that the client knew the drugs were present? Lack of knowledge is sometimes a viable defense when drugs are located in a house or vehicle in which several people were present or had access.
The element of possession.
The defense of lack of possession. It is possible to know that drugs are present but to not be in possession of those drugs. For example – if a person A shares a home with person B, but they have different bedrooms and person B has not given person A free access to B’s room or control over B’s property, person A is not in possession of B’s drugs simply because A knows about the drugs.
However, be aware of constructive possession. Constructive possession means that person A may not have the drugs in his actual possession, but if he has the ability to take control of the drugs, then he is in constructive possession and can be found to be in legal possession. For example, person A and B share a home and they are hanging out in the living room. B has a pile of cocaine on the coffee table in full view of A. If A could take actual possession of the cocaine whenever he wanted, he is in constructive possession of the cocaine. I will discuss more about constructive possession in a future article.
The defense of a valid prescription.
Sometimes if pharmaceutical drugs are found, but not in a prescription bottle, the police will charge the person with illegal possession. Upon presentation of a valid prescription, the charges are dismissed.
Drugs found as the result of an illegal police stop or search.
It can be a defense if the police conducted an illegal stop or search that resulted in the discovery of the drugs.
Sentencing and Punishment.
If beating the charge is not an option, the good news is that most3 jurisdictions are not insistent about incarcerating first-time simple possession offenders. In Tennessee, there is a mandatory sentence of 30 days jail for possession of meth, but this can usually be avoided by pleading to attempted possession or some other offense agreed upon in a plea bargain deal.
In fact, even when a viable defense does exist, it is often much less expensive and much less time consuming for the client to enter into diversionary plea agreement than to force the case to trial. A diversionary plea agreement means that upon completion of certain conditions, such as a drug education class and payment of court costs, the charge will be dismissed. This type of resolution is available in many jurisdictions for most first-time simple possession offenses.
If the defendant has prior convictions or the circumstances indicate that the defendant has a serious drug problem, a diversionary sentence is less likely and incarceration will be more of a possibility. However, for simple possession charges, incarceration is usually the last option that the system imposes. Before imposing incarceration the courts will usually attempt to impose more intensive probation or other programs like drug court.
Expungement. If a diversionary sentence is obtained where the charges are eventually dismissed, the defendant will be eligible to obtain expungement of the case so that all records of the arrest and court case are erased.
While incarceration is not likely in most cases for a simple possession charge, it is nevertheless important to consult a criminal defense lawyer. A qualified lawyer will make sure, when possible, that you avoid a permanent conviction on your record and have all records of the arrest and court case expunged in order to protect your ability to obtain and to keep good employment. Although most employers do not automatically disqualify a person with a misdemeanor drug offense – some do. Even those employers who do not automatically disqualify someone with a simple possession conviction, many will take the candidate with no criminal record over the one with any criminal record – even a misdemeanor simple possession drug offense. Bottom line: I believe it is always worth the investment to hire a lawyer to protect your future.
Good luck. I hope this information helps.
Brent Horst, Board Certified Criminal Trial Specialist by the NBTA
Licensed in Tennessee and Florida.
Date of Article 08 Jan 2017.
This article is for general informational purposes only and is not intended as legal advise. The author does not warrant that the information is current after the date that the article is first published. Always consult a qualified lawyer to discuss the particular facts of your case.
1Casual exchange means you may have shared or passed some drugs to another person but did not do so for personal or financial gain. Example: passing a joint to a friend.
2Many people assume that because the statute expressly states that distribution of less than .5 oz of marijuana is a misdemeanor offense that possession of more than .5 (one half) ounces of marijuana is a felony offense. I even see arrest affidavits from police officers alleging felony resale because the drug was over one half ounce, and was therefore “felony weight.” This conclusion in incorrect. Possession of more than .5 (one half) ounces of marijuana does not automatically make the offense a felony simply because distributing one half ounce or less is considered simple possession and a misdemeanor. Although T.C.A. 39-17-419 allows the jury to infer from the amount of drugs that the drugs were possessed for sale and not personal use and is therefore a felony offense – this statute does not contain any “magic” number or amount to reach “felony weight.” It is up to the jury to decide, under all the circumstances, including the amount of drugs, whether or not the drugs were being possessed for personal use or for resale. I will discuss more about the presumption statute in a later article.
3There are still a few jurisdictions around that want to throw everyone in jail for anything, including a simple possession drug offense.