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Close, But No Cigar (Or Alcohol)

If I’m not holding it, can I still get in trouble for it?

Quick Answer: Yes. Under the legal doctrine of constructive possession “when a person knowingly exercise[s] dominion and control over an object, even though the object may not be within the person’s immediate physical possession,” the person can be found to be “possessing” alcohol, drugs, or other potentially illegal items. Even if the police do not directly see you exercising this “dominion or control” (meaning even if they do not see you holding the item) they can infer it from circumstantial evidence (where you are, what you are doing).1

Imagine this scenario: you are out at a bar with friends, all of whom are underage. You all are sitting around a table, and there is a cup of beer in the middle of the table. The police approach; who can be charged with possession of the beer? Potentially everyone at the table, because each person could be in constructive possession of the beer given each person’s location around the table and presence at the bar. This is especially true if one or more members of the group possess a Fake ID, or possess inaccurate over/under-21-year-old markings on their hands or wrists, as this could be viewed as additional circumstantial evidence of possession. Similarly, as I write this blog post I’m not holding my office phone (located about a foot away from me), but I would likely be found to be in constructive possession of it nonetheless.

Miami University will similarly apply this principle in discipline situations (even though this doctrine is not expressly outlined in Miami’s Code of Conduct…). Disciplinary charges for Prohibited Use of Alcohol (105(b)), and Possession of Drugs (106(A) and (B)) are the main culprits here. Be careful of what you or your roommate have in your dorm room.

Constructive possession can seem like an inescapable threat, and perhaps in some ways it is, but the lesson here is ultimately one you know: be aware of your surroundings.

Falsely accused of a crime or disciplinary infraction based on constructive possession? Contact a member of our Oxford, Ohio, team today.


1 Ohio Jur. 3d Criminal Law: Substantive Principles and Offenses § 1327

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