Drug Possession

The Code provides that a person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance, except as authorized by law. Actual possession means on one’s person or within easy reach and convenient control. The issue of possession is one of the most frequently litigated issue in drug cases. Possession may be proved circumstantially.⁷ However, to convict under the statute proscribing possession of controlled substances, the state must prove that the defendant consciously and intentionally possessed the substance, either actually or constructively, and was aware of the presence and nature of the substance.⁸ A mental state of recklessness or negligence will not suffice.⁹

579.015. Possession or control of a controlled substance:

1. A person commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance, except as authorized by this chapter or chapter 195.

2. The offense of possession of any controlled substance except thirty-five grams or less of marijuana or any synthetic cannabinoid is a class D felony (prison term up to 7 years).

3. The offense of possession of more than ten grams but thirty-five grams or less of marijuana or any synthetic cannabinoid is a class A misdemeanor (prison term of up to 1 year).

4. The offense of possession of not more than ten grams of marijuana or any synthetic cannabinoid is a class D misdemeanor. If the defendant has previously been found guilty of any offense of the laws related to controlled substances of this state, or of the United States, or any state, territory, or district, the offense is a class A misdemeanor. Prior findings of guilt shall be pleaded and proven in the same manner as required by section 558.021.

5. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this chapter or chapter 195, it shall not be necessary to include any exception, excuse, proviso, or exemption contained in this chapter or chapter 195, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.