Drug Induced Homicide Defense Toolkit
jurisdictions have not yet resolved this question. Although a majority of courts to have considered the issue have held that both users must be physically present at the sale for the joint-user defense to apply, there are strong policy and doctrinal arguments in favor of a broader application of the defense. a. The constructive possession doctrine It is well established in law that a person can constructively possess an item that has not yet been delivered into his or her actual possession. Indeed, in possession prosecutions, the government often argues for a broad construction of constructive possession. These cases have led courts to hold that “a defendant also may be convicted of possession . . . of a controlled substance when his or her dominion and control are exercised through the acts of an agent.”187 For instance, in People v. Konrad,188 the Michigan Supreme Court held that the defendant constructively possessed cocaine where the evidence showed he “had paid for
187
People v. Morante, 975 P.2d 1071, 1080 (1999) (citations omitted). This has the possible benefit of offering juries a compromise lesser included offense, and it is possible that a defense under a Good Samaritan law might apply (see Section VII.B), or that the lower charge opens the possibility of a treatment-oriented disposition rather than incarceration. 188
536 N.W.2d 517 (Mich. 1995).
Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition
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