Feb, 2018

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posted in Wilka, Welter & Ash LLP Law Blog.

Illegal/Legal Possession in South Dakota

Illegal/Legal Possession in South Dakota

Laws come from two main sources, the legislature and the judiciary through court rulings and opinions. When the legislature drafts a bill, and the governor signs that bill, the terms and rules stated become the law. However, often times the interpretation of the law is called into question due to the generality of the law and the specificity of the situation to which the law applies.

Illegal possession is one such law. With regard to the possession of illegal substances or firearms, there are several codified law titles and chapters that contain the many laws within a particular chapter. For purposes of this blog, we will look at South Dakota Codified Laws Title 22 “Crimes,” Chapter 42 “Controlled Substances and Marijuana.” Each Chapter usually starts with a subsection entitled “Definition of terms.” These terms are used throughout the chapter within the context of each law. The terms are as important as the laws themselves, because the meaning of words changes the law.

Sometimes words that are important are not defined. Possession is not defined within Chapter §22-42. So what does it mean to possess a controlled substance in South Dakota and how is the term defined? Since the legislature chose not to include a definition, it has been up to the courts to define possession. There are two types of possession, actual physical possession and constructive possession. The courts have not taken much time to define actual possession because it is fairly self-explanatory. If you have drugs on your person, you are in actual physical possession. Constructive possession is more difficult.

The Supreme Court has ruled that a person is in constructive possession if they have dominion or right of control over a substance with knowledge of its presence and character. For example, if you are riding in a car and drugs are in the car, or at a house and drugs are in the bathroom you can be charged as if you were in actual possession. This seems to solve the issue if you are riding or living alone; however, what happens if there are more people involved?

In order to further define constructive possession, the Court has had to define “control.” There are also two types of control. Exclusive control such as sole ownership of a car or home, or joint control. If you are driving your friend’s car, or staying at someone else’s home, you are in joint control. This distinction becomes important because of the knowledge requirement. If you are in exclusive control of property, knowledge of what is in your car or home is inferred. You know or should know that if there are drugs in your home, and thus you are in possession of whatever is found therein. However, if you are in joint control, it is possible that you may not know what is in the car; perhaps you borrowed it from a friend. In order to be in possession when the premises is controlled jointly, the prosecution must establish your knowledge of the presence of the drugs by proof. In order to prove you knew of the drugs and were in possession, the state must either prove you actually knew, or the circumstances were such that would allow a judge or jury to infer the knowledge. Such circumstances might be that you were caught with other drugs or paraphernalia, how close you were to the drugs when they were found, or a
urinalysis that proves the drugs were ingested by you.

But what about legal drugs, such as a prescription? Although South Dakota law does not specifically define who may possess prescription drugs other than the person to whom the prescription was written, it does state the person who possesses the drugs must be an “ultimate user.” SDCL §22-42-1(11) defines ultimate users as “a person who lawfully possesses a controlled drug or substance for that person’s own use or for the use of a member of that person’s
household or for administration to an animal owned by that person or by a member of that person’s household.” So you may pick up a prescription for your wife or child, assuming they are a part of your household and you may lawfully possess that drug for the purpose of providing it to the family member or pet.

When it comes to the law, words matter. The definition of words can mean the difference between what is legal and illegal. No one situation is exactly like the next. That is why you need the experience of the legal team at Wilka and Welter to define the law in your case.