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Saturday, January 29, 2011

Possession by consumption... is there really such a thing?

Recently I have been seeing more and more defendants being charged with "possession of a controlled substance by consumption".  Many of these individuals have been pleading guilty because either they assume that if a urine test shows positive for a controlled substance they must be guilty, or because they do not know the true ramifications of pleading guilty to a drug related charge in Utah. 

First, the simple drug tests used in most law enforcement field tests are inadmissible in court.  In order for this type of scientific evidence to be allowed in court, law enforcement would need to send the urine sample to the State Crime Lab of Utah (this takes several months for results).  For many low level cases, this is just not routinely done.  Further, these tests quite often test for metabolites (chemical byproducts that result from the body's break down of the substances).  Many times, these metabolites are not controlled substances in and of themselves (I would caution that driving with metabolites in blood or urine is a crime in Utah).  So if the state does not actually have a controlled substance in your urine, you can not be prosecuted for possession of a controlled substance.

  But most importantly, controlled substances in the urine does not automatically equate to possession of a controlled substance.  First, the state would need to also prove that the controlled substances was consumed in Utah in order for Utah to have jurisdiction.  The state would also be required to prove that the controlled substance in the blood is in a form that could actually be consumed.  From my experience this is very rare.

Most often, the urine test is helpful to law enforcement when it is obtained in conjunction with controlled substances being found in the proximity of a defendant.  In short, the urine test could be used to show a defendant's intent to exercise dominion or control over the controlled substance that was found near a defendant.  ie. drugs found in the console of a car that contains five occupants and nobody claims possession of the drugs.  For this reason it is important to never give an admission to law enforcement or even speak with them before talking to an attorney.  If found in this position, a potential defendant should cooperate with giving their name and date of birth, but ask to speak with an attorney before answering any other questions.  This request to speak with an attorney will stop law enforcement from pursuing any further questions of you.  For a greater explanation of your constitutional rights I will discuss this issue further in another post.

And lastly, remember that in Utah, a persons driver's license will be automatically suspended for a conviction of possession of a controlled substance.  For many people this means that they will lose their job or at least greatly limit their job opportunities.  Also, a drug conviction will also make a college student ineligible for federal financial aid.

Before going to court on these types of charges you should always consult with an attorney to explore your options.  Your options would include, but not be limited to, a request to suppress the evidence due to a violation of your constitutional rights, Jury or bench trial and plea agreements such as a plea in abeyance that will allow you keep your license. 

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