Utah's Innocent Possession Defense

The possession statute, Utah Code Ann. § 58–37–8(2)(a)(i), only provides for one affirmative defense for a possession charge. When the controlled substance "was obtained under a valid prescription or order, directly from a practitioner," the accused may use this as a defense. Although Utah's drug possession statute does not explicitly contain an innocent possession defense, it implicitly includes an innocent possession provision.

The Innocent Possession defense applies to many drug cases in Utah. Under this defense, the defendant is not required to prove that he or she innocently possessed the substance. Instead, the State must prove beyond a reasonable doubt the defendant did not innocently possess the drug. In other words, the State has the burden of proof at all times.

The proposed jury instructions for the innocent possession defense provide that a person innocently possesses a substance if:

  • the accused obtained the substance innocently and possessed it with no illegal purpose; and
  • the accused took or was taking adequate measures to rid himself or herself of possession of the substance as promptly as reasonably possible.

The innocent possession defense applies to charges such as possession of a controlled substance, possession with intent to distribute a controlled substance, and even the possession of firearm statutes in Utah.

Attorneys for the Innocent Possession Defense in Utah

If you were charged with felony possession of a controlled substance in violation of Utah Code section 58–37–8(2)(a)(i) (the “possession statute”), then contact an experienced criminal defense attorney in Salt Lake City, Utah, to find out more about the innocent possession defense.

We can use this defense to help negotiate a better outcome in your case or fight for the "not guilty" verdict at trial. Under this defense, the jury must decide whether the prosecution has proven that the defendant did not innocently possess the controlled substance, chemical substance or counterfeit substance.

Let us put our experience to work for you. Call (801) 532-5297 today.

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Proposed Jury Instruction for the Innocent Possession Defense

Utah Code section 58–37–8(2)(a)(i) provides that a defendant is guilty of the crime of possession if he or she:

  • possesses a controlled substance; and 
  • the possession was knowing and intentional.

The Controlled Substance Act at § 58–37–2(1)(ii) defines “possession” using terms such as “retaining” and “maintaining,” and it provides that possession may be inferred if the person charged has “the ability and the intent to exercise dominion and control over” the item.

This definition does not, however, clarify whether the term “possess,” as it is used in the possession statute, includes the type of innocent possession at issue here—temporary possession for the purpose of returning a controlled substance to its lawful owner. 

As explained by the Utah Supreme Court in State v. Miller, 2008 UT 61, ¶ 21, 193 P.3d 92, 96 (2008):

“Strictly construing the term 'possess' to include every type of possession, whether culpable or innocent, contradicts the legislature's directive to avoid strictly construing the code, and it is contrary to the policy goals of safeguarding faultless conduct and promoting justice. This is most apparent in the many examples of injustices that may result from strictly construing the term 'possess.'

A daughter who no longer lives at home but who picks up her sick mother's prescription medication and drives it to her mother's home, for example, could be guilty of felony possession under a strict construction of the term 'possess…..' [A] house guest who inadvertently leaves a prescription bottle of pills at a homeowner's home creates an impossible situation for the homeowner wherein she could do nothing short of immediately fleeing her home to avoid 'possessing' the pills. 

Because construing the term 'possess' to include brief, innocent possession contradicts the legislature's interpretative guidelines and creates a myriad of absurd prosecutorial possibilities, we hold that the term 'possess,' as it is used in section 58–37–8(2)(a)(i), excludes transitory possession of a controlled substance for the purpose of returning it to its lawful owner. That is, we hold that the possession statute implicitly includes the defense of innocent possession.

The proposed instructions on the defense of innocent possession provide that:

  • the drugs were attained innocently and held with no illicit or illegal purpose; and
  • the possession of the drugs was transitory, that is that the defendant took adequate measures to rid himself of possession of the drugs as promptly as reasonably possible.

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Policy Reasons for the Innocent Possession Defense

Across the United States, courts that recognize an innocent possession defense cite public policy reasons for doing so. The main public policy reason for the innocent possession defense is to “prevent a conviction for an innocent act.” People v. E.C., 195 Misc.2d 680, 761 N.Y.S.2d 443, 445 (Sup.Ct.2003). 

For instance, in People v. E.C., the New York appellate court recognized an innocent possession defense. The court explained that a juror who handles illegal drugs as part of a review of the evidence would be guilty of possession under a strict interpretation of the possession statute. Id.

The State of California also recognizes the innocent possession defense and applies it to “fleeting and transitory” possession of illegal drugs “for the purpose of disposal.” People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081, 1088–89, n. 9 (2001).

The courts in Utah have explained that the Utah legislature recognizes the statutory defense of justification that protects a person from prosecution conduct that is “justified for any ... reason under the laws of this state.” Utah Code Ann. § 76–2–401(1)(e). The broad catchall provision under the innocent possession defense allows the courts to make sure that justice is done.

This article was last updated on Thursday, March 8, 2018.