Feb 13

“Possession” of Drugs Does not Mean Drugs in Your System

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A driver can be charged with a DWI involving drugs. Minn. Stat. § 169A.20, subdiv. 1 states:

Driving while impaired crime; motor vehicle. It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles, within this state or on any boundary water of this state when:

(1) the person is under the influence of alcohol;
(2) the person is under the influence of a controlled substance;
(3) the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person’s ability to drive or operate the motor vehicle;
(4) the person is under the influence of a combination of any two or more of the elements named in clauses (1) to (3);
(5) the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more;
(6) the vehicle is a commercial motor vehicle and the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the commercial motor vehicle is 0.04 or more; or
(7) the person’s body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.

Obviously, a person can be charged with possession of a drug. See Minn. Stat. §§ 152.021, subdiv. 2 (first degree drug possession); 152.022, subdiv. 2 (second degree drug possession); 152.023, subdiv. 2 (third degree drug possession); 152.024, subdiv. 2 (fourth degree drug possession); 152.025, subdiv. 2 (fifth degree drug possession).

The first degree drug possession jury instruction states:

In order to find the defendant possessed _______, it is not necessary that it was on the defendant’s person. The defendant possessed _________ if it was in a place under the defendant’s exclusive control to which other people did not normally have access, or if found in a place to which others had access, defendant knowingly exercised dominion and control over it.

CRIMJIG 20.04—Controlled Substance Crime in the First Degree—Possession—Elements. See also CRIMJIG 20.14—Controlled Substance Crime in the Second Degree—Possession—Elements (same); CRIMJIG 20.20—Controlled Substance Crime in the Third Degree—Possession—Elements (same); CRIMJIG 20.32—Controlled Substance Crime in the Fourth Degree—Possession—Elements (same); CRIMJIG 20.36—Controlled Substance Crime in the Fifth Degree—Possession—Elements (same).

In State v. Lewis, the defendant was charged convicted of drug possession, in violation of Minn. Stat. 152.09, subdiv. 1(2), which is now repealed. 394 N.W.2d 212, 212 (Minn. Ct. App. 1986), review denied (Minn. Dec. 12, 1986). At the time of the case, that statute read, “Except as otherwise provided in this chapter, it shall be unlawful for any person, firm or corporation to . . . (2) Possess a controlled substance, except when the possession is for his own use and is authorized by law.” Id. at 213 (quoting MINN. STAT. § 152.09, subdiv. 1(2) (1984)). The defendant appealed, arguing that “mere presence of morphine within a person’s body does not constitute ‘possession.’” Id. The defendant had been in a car accident, was brought to a hospital, and gave a urine sample, which showed traces of morphine. Id. at 212. The court of appeals considered the supreme court’s definition of “possession”: “[I]n order to convict a defendant of unlawful possession of a controlled substance, the state must prove that defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance.” Id. at 213 (quoting State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975)). The court also considered a Washington case’s position: “a defendant could not be convicted for possession of alcohol merely because the defendant had alcohol within his system because ‘[o]nce it is within a person’s system, the power of a person to control, possess, use or dispose of it is at an end.’” Id. (quoting State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71, 75 (1986)). The court also cited Nethercutt v. Commonwealth, 241 Ky. 47, 43 S.W.2d 330 (Ky. 1931) (alcohol consumed and in the stomach does not constitute “possession” within the meaning of a statute prohibiting unlawful possession of intoxicating liquor). The court distinguished between cases where the drug was in the person’s system and where the drug was stored in the person’s body. The court wrote:

Both cases were smuggling cases involving drugs concealed in balloons placed in the smugglers’ alimentary canals. Both defendants were arrested while the balloons were still within their bodies. Although the convictions in those cases were reversed on search and seizure issues, neither of the defendants challenged the charges based on possession. Neither decision is applicable under the facts of this case. The drugs in those cases obviously were not readily accessible and were within the defendant’s bodies, however, the defendants intended and did retain the potential to exercise dominion and control over the substances. Cocaine packaged and concealed in the alimentary canal is retrievable. Morphine consumed and broken down into metabolites in urine is not. ‘Obviously, after a drug is ingested or injected into the human body, the host body can no longer exercise dominion or control over it.’

Id. at 215 (quoting State v. Downes, 31 Or. App. 1183, 572 P.2d 1328, 1330 (1977)). Regarding statutory interpretation, the court wrote:

The usual and ordinary meaning of the term ‘possession’ does not include substances injected into the body and assimilated into the system. After a controlled substance is within a person’s system the power to exercise dominion and control necessary to establish possession no longer exists. Moreover, the particular terms of the statute suggest a legislative intent to regulate the physical movement and transfer of controlled substances between different persons. Consequently, once a controlled substance is within a person’s system the substance is beyond the scope of regulation contemplated by the statute.

Id. at 217. Finally, the court warned, “Our holding in this case is narrow. We find that evidence of a controlled substance in a person’s urine specimen does not establish possession within the meaning of Minn. Stat. § 152.09, subd. 1(2), nor is it sufficient circumstantial evidence to prove prior possession beyond a reasonable doubt absent probative corroborating evidence of actual physical possession.” Id.

In State v. Flinchpaugh, the defendant caused a car accident and consented to a blood draw, which revealed cocaine and/or a metabolite of cocaine was found. 232 Kan. 831, 832, 659 P.2d 208 (1983). The defendant was charged with cocaine possession based solely on that that was found in her blood. Id. The court stated, “Once a controlled substance is within a person’s system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body. The ability to control the drug is beyond human capabilities.” Id. at 834. “Evidence of a controlled substance after it is assimilated in a person’s blood does not establish possession or control of that substance.” Id. The court differentiated similar cases upholding possession convictions by stating that there must be some other proof that the person possessed the drug other than sole presence in the person’s system, such as an admission of possession, displaying symptoms compatible with having taken the drug, evidence of a drug transaction, evidence of drug injection, and so on. Id. at 834–35. The court said, “Discovery of a drug in a person’s blood is circumstantial evidence tending to prove prior possession of the drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt. The absence of proof to evince knowledgeable possession is the key. The drug might have been injected involuntarily, or introduced by artifice, into the defendant’s system.” Id. at 835.

See also State v. Stigen, No. A11–452, 2012 WL 686079, *4 (Minn. Ct. App. Mar. 5, 2012), review denied (Minn. May 30, 2012) (“A positive test does not, by itself, constitute possession. . . . However, the evidence of a positive test is relevant in proving possession of the substance appellant tested positive for.”).