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Utah Drug Crimes

Definition of Possession

A person “possesses” [a controlled substance] [drug paraphernalia] when the person has the ability and the intent to exercise control over it. Factors relevant to deciding possession may include the following:

  • ownership and/or occupancy of the [residence] [vehicle] [property] [personal effects] where the [controlled substance] [drug paraphernalia] was found;

  • whether that ownership or occupancy was exclusive;

  • presence of the [controlled substance] [drug paraphernalia] in a location where Defendant had special control;

  • whether other people also had access to the location of the drugs;

  • presence of Defendant at the time the [controlled substance] [drug paraphernalia] was found;

  • Defendant's proximity to the [controlled substance] [drug paraphernalia];

  • previous drug use;

  • incriminating statements or behavior; or

  • any other factor related to whether Defendant had the ability and intent to exercise control over the [controlled substance] [drug paraphernalia].

The defendant’s mere presence at the place where the [controlled substance][counterfeit substance][paraphernalia] is located is not sufficient on its own to prove that the defendant was in possession of the [controlled substance][counterfeit substance][paraphernalia].

In order to convict for possession, the prosecution must establish that a defendant knowingly and intentionally possessed a controlled substance. Possession can be proven by actual possession of a controlled substance or by constructive possession.


To establish constructive possession of a controlled substance, the state must prove that there was a sufficient nexus between the accused and the drug to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug. 

Defenses to Possession


There are generally two categories of defenses to possession: (1) motions to suppress and (2) lack of constructive possession.  Motion to suppress surround some type of behavior by police that violate a defendant's rights; Miranda warning violations and illegal searches are the most common categories. The lack of constructive possession defense is based on the fact that while the controlled substance may be in the immediate area of the defendant's person or an area in which the defendant controls, there is insufficient evidence for a conviction.  See the discussion of "Definition of Possession" on this page.


Motions to Suppress​/Motions in Limine


Motions to suppress/in limine are pleadings filed with the court to keep certain pieces of information out of evidence.  The evidence might be statements by the defendant, the seizure of the drugs, or tests that confirm the existence of drugs.  The basis for the motion to suppress might be a bad traffic stop, the duration of the stop, the manner in which the officer made contact with the defendant, the duration of the stop, the necessity of a warrant, the sufficiency of information used to challenge a warrant, the manner in which a search is made, the handling of the evidence, or the interview of suspects. Every case is different and only a trained attorney can identify a potential motion to suppress.  Effective motions to suppress are the most powerful pretrial tool in a defense attorney's arsenal; the suppression of evidence frequently leads to dismissals of cases by the prosecution or very favorable plea deals. 



Possession of controlled substances are enhanceable offenses.  The enhanceability provisions are set forth in UCA 58-37-8.  If a person possesses marijuana, the first or second conviction is a class B misdemeanor.  A third conviction is a class A misdemeanor and fourth conviction or beyond is a 3rd degree felony. For a schedule I or II drug such as methamphetamine, cocaine or mushrooms, a first or second conviction is a class A misdemeanor, a third conviction is a 3rd degree felony.

*Plea in abeyances are NOT considered convictions for enhancement purposes.



Drug Court

Many courts have an alternative disposition known as drug court.  A person pleads guilty and the plea is either held in abeyance or jail and other punishment is withheld if the person participates in a drug treatment program that is completed in conjunction with the court.  People in drug court make frequent court appearances to check on their progress in the program and to provide support through other drug court participants.   

Possession with Intent to Distribute

In order to convict for possession with the intent to distribute, the prosecution must demonstrate both: (1) that the defendant knowingly and intentionally possessed a controlled substance; (2) that the defendant intended to distribute the substance to other people.

In proving that the defendant intended to distribute the controlled substance, the prosecution might rely on the defendant's own statements that he intended to share the drugs with friends (distribution does not have to be in exchange for value).  The state might also rely on the testimony of police officers regarding the quantity of the drugs, the variety of the drugs, or the presence of items indicating packaging for sale, such as baggies, scales, and large amounts of cash, for example.

Amount of Drug Necessary to Convict for Posession

It is well settled in Utah that in order to be convicted of possession of a controlled substance, the only minimum amount of substance is that amount required for testing, not a usable amount.  State v. Warner.  As such, even a crumb of marijuana or residue on a heroin spoon will be sufficient, if testing identifies the substance as a controlled substance.

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