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What Defenses Can Be Used in a Drug Possession Case?

by | May 16, 2023

If you face charges for possession of a controlled substance, it’s crucial to understand that an arrest does not mean a conviction. While this offense is taken very seriously in New York, there are several defense strategies that can be used to fight the charges against you — depending on the facts of the case. Importantly, some defenses can challenge the facts or evidence in the case, others can be asserted based on procedural errors or Constitutional violations.

Here are some of the most common defenses that an experienced criminal defense attorney may raise in a drug possession case:  

Legal Prescription

If you had a legal prescription for the drug, you are considered to be in lawful possession and the charges against you would have to be dismissed. For instance, there are certain controlled substances that are legal if they have been prescribed by a doctor, such as OxyContin and Vicodin. If you can show that you had a prescription for the drug in question, you have a valid defense.   

Illegal Search and Seizure

The Fourth Amendment to the U.S. Constitution protects from unlawful search and seizure by the government. If the police conducted an unlawful search and seizure of your person, vehicle, or home, resulting in a violation of your Constitutional rights, the prosecution may not be able to use the evidence that was obtained. This can lead to a dismissal of your case. Drugs found in “plain view” may be seized and used as evidence — otherwise, a search warrant would be required.

Insufficient Quantity

One of the elements of many drug possession crimes under New York law is the requirement that you possessed a certain amount of the drug. The case will have to be dismissed if the prosecution cannot prove that you possessed the amount for the specific charge that was brought.

Lack of Dominion or Control

The prosecution must be able to prove that you had actual or constructive possession of the drugs in order to obtain a conviction. While actual possession means you had the drugs on your person, constructive possession means that you had the ability to exercise dominion and control over the drugs or the location where they were found. If dominion and control cannot be established, the prosecution’s case against you cannot stand.   


The defense of entrapment can be raised in a drug possession case if you engaged in the alleged criminal conduct due to being induced or encouraged to do so by law enforcement for the purpose of obtaining evidence. This is an affirmative defense, meaning criminal liability can be negated — even if you committed the offense. A defendant has the burden of proof to prove an affirmative defense by a “preponderance of the evidence,” a much lower standard than that which the prosecution must satisfy. The burden of proof then shifts back to the prosecution who must disprove the affirmative defense “beyond a reasonable doubt.”    

Emergency Treatment

Generally, under New York law, you cannot be charged with a drug possession crime in cases where you are seeking emergency medical attention for an overdose. This law also applies in cases where you are assisting someone else obtain medical care in situations involving an overdose. But while this law protects you from being arrested for possession of a controlled substance under eight ounces, it does not apply in cases involving A1 felony possession of a controlled substance in an amount of eight ounces or more. 

Contact an Experienced New York Criminal Defense Attorney

If you’re facing charges for possession of a controlled substance, it’s critical to have a knowledgeable drug crimes attorney by your side who can fight for your Constitutional rights and work to obtain a favorable outcome in your case. The criminal defense attorneys at D’Emilia Law offer high-quality legal representation for those who have been arrested or are being investigated for a wide variety of drug crimes and work to obtain the best possible results for every client. To schedule a consultation, contact us at 1-888-DEMILIA.  

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