If you’re charged with possession, you’re
wondering, “What do they need to prove?” The first thing that they need to prove is that
you possessed the drug. Possession itself can be proved in one of
two main ways in Virginia. There is actual possession, which is literally what it says.
You have it in your hands, in your pocket, in your backpack that belongs to you and you’re
wearing at the time. And then there’s also constructive possession,
which is a much grayer area. In constructive possession, essentially what the commonwealth
needs to prove is that you are aware of the nature and the presence of the illegal contraband
and that at some point, you exerted some dominion and control over that contraband. An example
is if you’re driving in a car and some people are smoking marijuana and you’re just sitting
there in the backseat minding your own business and the police stop you. He notices that there’s
a couple of joints in the ashtray and he charges everybody with it. You make no statements, you say nothing about
the marijuana, you don’t acknowledge that it’s there. It’s going to be very, very difficult
for the commonwealth to prove that you possessed that marijuana. They can prove that you were
aware that it was there, but they will never be able to prove that you had dominion and
control over it.