Constructive Possession – a potential defense to drug possession charges in Indiana

A conviction for drug possession may rest upon proof of either actual or constructive possession. Actual possession occurs when a person has direct physical control over the item. The drugs being in your pocket, purse, or even hand are good examples of actual possession. The State will argue that they know you possessed the drug because you were found with it.

Constructive possession is more complicated. A defendant is in the constructive possession when the defendant has both (i) the intent to maintain dominion and control over the drugs and (ii) the capability to maintain dominion and control over the drugs.

The capability prong is satisfied when the State shows “proof of a possessory interest” regardless of whether possession of the premises is exclusive or not. Think about a common room or roommate situation.

Intent is a much greater hurdle for the State when possession of the premises is not exclusive and requires a showing of “additional circumstances.”

These additional circumstances can include:

(1) incriminating statements made by the defendant, (2) attempted flight or furtive gestures, (3) location of substances like drugs in settings that suggest manufacturing, (4) proximity of the contraband to the defendant, (5) location of the contraband within the defendant’s plain view, and (6) the mingling of the contraband with other items owned by the defendant.

If the State is proceeding under a theory of constructive possession and does not have any of the aforementioned additional circumstances, they cannot prove their charge beyond a reasonable doubt.

This could result in a complete dismissal of your charges!

Call Rebecca Gray today for a free consultation if you believe your drug possession charge is one of constructive possession. Contacting an attorney at the outset of your case is imperative in constructive possession cases. She will be able to review your case and hold the state to their burden.

What does “operating” a vehicle mean in Indiana?

To begin, it is important to understand that you do not need to be driving to be “operating” a vehicle under Indiana law. So what does qualify as “operating?” The "operator" of a motor vehicle is, in pertinent part, "a person ... who ... drives or is in actual physical control of a motor vehicle upon a highway...." I.C. 9-13-2-118(a)(1). The long and the short of it is that the analysis is very fact-specific, and the below is a summary of what courts have said qualifies as “operating” a vehicle in Indiana.

Being in a parked car, even with the keys in the ignition and the engine running, is not enough to show “operation.” The State must present some evidence, either directly or circumstantially, that the suspect actually “operated” the vehicle. For example, courts have held that there is sufficient evidence of “operating” where suspects have been found asleep or sitting in a traffic lane or a highway median.

The State must prove that you “operated” a vehicle to prove OWI. If you think that there may be problems with the operation element of your OWI case, call attorney Rebecca Gray today 24/7 for a free consultation. She will review your case and file the appropriate motions on your behalf. 

✋ If the State cannot prove that you “operated” a motor vehicle, your case may be dismissed.

Conditional Discharge for Marijuana

A first-time Possession of Marijuana (less than 30 grams) charge is a class B misdemeanor in Indiana. A class B misdemeanor carries a maximum penalty of 180 days in jail and/or a $1000 fine. 
But there are ways to avoid a conviction and potential jail time for first-time marijuana offenders in Indiana. One is what’s commonly referred to as the conditional discharge.
IC 35-48-4-12 states:  “If a person who has no prior conviction of an offense under this article or under a law of another jurisdiction relating to controlled substances pleads guilty to possession of marijuana, hashish, salvia, or a synthetic drug or a synthetic drug lookalike substance as a misdemeanor, the court, without entering a judgment of conviction and with the consent of the person, may defer further proceedings and place the person in the custody of the court under Indiana Code 2015 conditions determined by the court. Upon violation of a condition of the custody, the court may enter a judgment of conviction. However, if the person fulfills the conditions of the custody, the court shall dismiss the charges against the person. There may be only one (1) dismissal under this section with respect to a person.”
So what does that mean for you? It means the court has the power to dismiss a possession of marijuana charge if the defendant pleads guilty and complies with all court-ordered conditions for up to a year. Conditional discharges can apply to defendants who have previous convictions and otherwise don’t qualify for a state-run pre-trial diversion program.
However, if a defendant fails to abide by the terms of his or her conditional discharge, the court can enter a judgment of conviction at that time and proceed to sentencing under the criminal sentencing laws.

A knowledgeable attorney like Rebecca Gray will be able to review your case and decide whether pursuing a conditional discharge is the best course of action for you. Call today for a free, no strings attached, consultation. She is available 24/7 to ensure that you get the real representation you deserve.

What can a “lawyer dog” teach us about invoking your right to counsel?

Anyone who has ever watched an episode of Law and Order has heard of the Miranda rights. Indeed, the right to remain silent and the right to court-appointed counsel are some of the biggest protections afforded in our criminal justice system.

As a general matter, it is important to know that if you are being questioned by police in a custodial setting you have the right to request an attorney, and this request will cease all questioning by law enforcement officers. However, if your invocation is not clear and unequivocal in nature, it can have serious implications for your case because it will allow police to continue questioning, potentially extracting incriminating statements to be used at trial.

But how do you make your request properly? A recent case out of the Louisiana Supreme Court that captured the attention of social media tells us just how clear your request has to be.

Warren Demesme, a 22-year-old rape suspect, was being interrogated by New Orleans police when he grew frustrated and stated:


This is how I feel if y'all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog 'cause this is not what's up.


Warren never got his attorney, confessed to the crimes, and is now facing trial for two counts of rape. His attorney filed a motion to suppress, arguing that Warren had clearly and unequivocally invoked his right to counsel. The Louisiana Supreme Court disagreed, highlighting the ambiguity of the phrase “lawyer dog.”

I would argue that it isn’t Warren’s use of the phrase “lawyer dog” that caused his headache. Instead, his problem is that he communicated to the officers that whether he actually wanted a lawyer was dependent on their subjective beliefs. In short, he left open the argument that officers might have been confused about what he was requesting. 

What did we learn from Warren?

When you are being questioned by police regarding your involvement in a criminal matter, invoke your right to counsel clearly and unequivocally. Using phrases like “I think I may need an attorney” or “maybe I want an attorney now” just don’t cut it. Make sure there is no way for the State to argue that the officers were reasonably confused about what you want. Assert your rights.

If you have questions about your rights, contact Rebecca Gray today for a free consultation. Having an attorney who is knowledgeable about the protections afforded to you is imperative to defending your case. Call now!