What Is the Difference Between “Actual” and “Constructive” Drug Possession?

Posted: December 15, 2021 at 12:00 am

The charges for drug possession in Kansas can be severe, so if you are facing charges, then the best thing you can do for your case is to hire a drug offense attorney. With legal representation, you will be able to navigate the complexities of your case. For example, in Lenexa, KS, there may be a difference in the severity of your charges depending on whether you have been arrested for actual or constructive possession.

What Is the Difference Between “Actual” and “Constructive” Drug Possession?

Many people assume that being found in the possession of drugs is a general charge, but there are many nuances to the law that need to be considered. For example, there is a difference between “actual” and “constructive” drug possession, and that will influence the direction of your case.

Actual Possession

Actual possession is when you are arrested with illegal substances found on your person, such as in your pockets, in illicit drug paraphernalia, or even in your hands. With this charge, the implication is that you were actively controlling the use of the illegal drug or you were actively using the drug when you were arrested. Actual possession charges can be difficult to dismiss since there is very little plausible deniability.

Constructive Possession

Constructive possession charges can be easier to work with because the police and prosecution will have to work harder to prove you were using the illegal substance. For this charge, drugs must be found on or around your property, such as your vehicle, your home, or other belongings. In this case, the possession of the drug is determined by your proximity and whether or not the police can prove the drugs were found on property that you own.

Interestingly, multiple people can be charged with constructive possession at a time. For example, if illegal drugs were found in a residence with more than one occupant, all people in the residence will be charged with drug possession. While constructive possession is more nebulous than actual possession, the charges can still be severe in Kansas.

What About Shared Possession?

There is also a third type of possession called “shared” possession, which is closely related to constructive possession. In this scenario, the charges will suggest that the accused and another party had shared possession of an illegal substance. In this case, it’s common for others who are involved in an illegal drug crime but who are not found with direct contact with the drug through their person or possessions may be charged with “shared” possession simply for being present. The prosecution will have to prove that you participated in the illegal drug use, as well.

Does the “Intent to Distribute” Matter?

Intent to distribute is generally a separate charge from simple possession. Many people are charged with possessing drugs without having an intent to distribute them. However, if your case also includes intent to distribute charges, then you can assume the fines, jail time, and other consequences will also increase.

That said, additional intent to distribute charges can be argued against. For example, your attorney can use strategies to create reasonable doubt that you were even aware of the drugs, which can impact your possession charges. Your attorney may also be able to assert that all the drugs found in your possession were intended for personal use, which can be proven with evidence.

What Are the Criminal Consequences of Drug Charges?

Possession of drugs, including marijuana, methamphetamines, and cocaine, each carry different criminal consequences based on the amount of drugs found in your possession. For example, if you are found in possession of a small amount of drugs, you can expect a fine of $1000 and up to six months in prison for a first-time offense. Naturally, the more times you are charged with possession, the harsher your consequences will be.


Marijuana is the most commonly used drug in America, but Kansas laws are particularly harsh. Even though medical marijuana and recreational marijuana are recognized in other states, Kansas sticks to stiffer consequences for possession charges, with or without an intent to distribute.

A level four felony charge has a fine of up to $300,000 with prison time from 14 to 51 months. A level three felony has a fine of $300,000 with prison time of 46 to 83 months. Level two felonies have higher fines of up to $500,000 with 92 to 204 months of jail time. And a level one felony has a fine of up to $500,000 with 138 to 201 months in prison.

Other Drugs

Other drugs such as methamphetamine, cocaine, and heroin, have even harsher criminal consequences. For these drugs, the severity of the charges is closely related to the damage the drug does to the person, particularly because these drugs are addictive. Even if there is no intent to distribute or sell, the consequences for these charges will be high.

A level five drug felony will have a maximum fine of $100,000, 10 to 42 months in prison, and 18 months probation with mandatory drug treatment. A level three drug felony with or without intent to distribute has a maximum fine of $300,000, 46 to 83 months in jail, and up to 36 months of probation. A level two drug felony has a maximum fine of up to $500,000, 92 to 144 months in prison, and a probation period of 36 months if probation is approved.

Do You Have Rights In Drug Offense Cases?

All citizens have rights under the American judicial system, including people who are charged with felony drug crimes like possession and intent to distribute. Many of your rights in your case will revolve around the events of your arrest and the right to a fair trial if you do not plead guilty to the charges against you. Legal representation with a drug offense attorney will ensure that your rights are protected throughout your case.

How Can a Lawyer in Lenexa, KS Help You?

Experienced lawyers have many strategies that can potentially downgrade or even dismiss your drug charges. An excellent legal defense is the best way to minimize the criminal and non-criminal consequences of your charges. For example, there are three main strategies that lawyers will use to suppress your case, such as:

  • Illegal traffic stop
  • Unreasonable detention
  • Non-consensual search

Essentially, the best defense for your drug charges will be related to any violations of your civil rights or normal police procedures during your arrest. The police cannot pull you over without reasonable cause and they cannot detain you for longer than it takes to follow Kansas state protocol for arresting procedures. A non-consensual search of your person or possessions can also be a violation of your rights and may be a way your case can be dismissed.

Let Us Help

Possessing illegal substances and illicit drugs can lead to severe consequences, such as fines, jail time, probation, mandatory drug classes, and non-criminal consequences like the loss of wages or the inability to rent an apartment. If you’ve been charged with a drug crime, the best thing you can do is hire legal counsel as soon as possible so you can use a strategy that will minimize your charges. For more information about drug possession laws in Kansas, please contact Henderson Legal Defense, LLC in Lenexa, KS