In this series of blogposts we will be discussing common defenses to crimes in Georgia. If you have been charged with a crime (or even if you are under investigation for a potential crime), it is crucial that you know what your defenses are. Some defenses are quite obvious. For example, you did not commit the crime or someone misidentified you. Or you did the act, but it was an accident (you lacked the necessary criminal intent). While many defenses are a matter of common sense, others are more technical.
Constructive vs. Actual Possession
The legal doctrine of equal access is more technical, but is an extremely important defense in cases that allege possession of illegal contraband. To prove possession of illegal drugs, for example, the state must prove that you knowingly and intentionally possessed drugs. Georgia law indicates that there are two forms of possession, actual and constructive possession.
Actual possession comes about when the illegal item is on your person or in your immediate control. In your pocket, purse, or wallet, etc. Constructive possession occurs when the thing may not be with the person currently, but is still within the person’s control. For example, a person has an illegal firearm in a safe inside their house. Actual and Constructive possession are both enough to prove a crime in Georgia.
Equal Access Defense
The equal access defense comes in when the state alleges that you were in possession of some type of contraband. Perhaps drugs were found in your vehicle, your home, or inside a purse or wallet. If you can produce evidence at trial that someone other than you had the opportunity or “equal access” to the location where the drugs were found, and could have placed them there, then the jury must acquit you of the charge.
A typical example of this would be if you let a friend borrow your car earlier in the day before you were driving it, and drugs were then found in the center consul of the vehicle. You would want to present evidence at trial of the friend having driven the car earlier that day. An even clearer example is when a person borrows the car of another person. This would clearly establish that another person (the owner) would have had equal access to the vehicle.
While getting an equal access jury instruction may save you at a jury trial, prosecutors often won’t dismiss a charge just because there is an equal access argument. It is crucial that you be careful who you ride with and whose possessions you borrow. If you share a car or house with someone who has a drug problem, you may easily open yourself up to liability.
If you have been charged with possession of drugs or contraband, call us today for a free consultation!