A former USC and Raider quarterback was recently charged with having methamphetamine and drug paraphernalia in his possession, and other charges. According to reports, he was found in the backyard of a home, which was not his own, trying to dispose of a bag containing meth and marijuana.
This case raises an interesting but seldom used defense in drug cases called “transitory possession”. Under this defense, an individual will not be found guilty for possession if he can establish, beyond a preponderance of the evidence, that:
- For a momentary or transitory time the person had possession of it
- The defendant was only in control of it while trying to get rid of it
- The defendant did not intend to obstruct law enforcement from getting it
This defense comes from a case that was decided in the 1970s where the California Supreme Court found that drug possession offenses were not meant to include situations where a person was attempting to dispose of drugs and only held the drugs while disposing of them [see People v. Mijares].
If you believe that this defense is applicable to your case, you should speak with an drug possession attorney experienced in handling drug possession cases. Raising this defense is difficult because it requires an admission to the crime. In stating that you were attempting to get rid of drugs, you admit that you had drugs and that they were, in fact, drugs.
Additionally, this defense is risky because it shifts the burden from the prosecution to the defense. What this means is that the defendant will have to prove that he was trying to dispose of the drugs or else he will be found guilty. Ordinarily, the defendant does not have to prove any portion of a case and is presumed to be innocent until proven guilty by the prosecutor. Because of this burden shift, this defense carries a number of substantial risks. Naturally, this defense should only be attempted by an experienced attorney.
Raising This Defense
The defense of momentary possession is not typically available in all possession in cases. It relies heavily on the details of the case and requires the careful analysis of an experienced defense lawyer before using it.
If you are charged with a Drug offense in California, the defense attorneys at Gurovich, Berk & Associates can provide a free consultation at (213) 385-1555 to help you better understand your options in cases similar to this involving drugs.