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RBinJax, Lawyer
Category: Criminal Law
Satisfied Customers: 731
Experience:  I am a former Public Defender, and have handled criminal cases for 25 years.
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My brother was cited for a Possesion of Marijuana for a bong

Customer Question

My brother was cited for a Possesion of Marijuana for a bong that was found in his friends car. Both the friend and my brother are being taken to court for the same crime although at the time of the arrest my brother told the officers that it wasn't his and his friend clearly stated that the ownership was his (the frend) the police reports clearly state this and my brother has been asked to present the court with his Non-Limine motions.
Submitted: 8 years ago.
Category: Criminal Law
Expert:  RBinJax replied 8 years ago.

It appears that the police are using the doctrine of constructive possession to bring your brother into the matter, since he was in the car and could have been thought to have possession of the bong. However, based upon the testimony of your brother and the friend, your brother should file a Motion to Dismiss on the ground that mere proximity to contraband, without more, is not a basis to construe possession of the contraband to the person. If the friend will prepare an affidavit stating that the bong was his and that your brother had no control or use of it, that should be enough to prevail on the motion before trial, or at the worst to be given a judgment of acquital at the close of the state's case.

I hope this answers your questions. Please click Accept so that I may be credited for my assistance. Thank you and good luck to your brother.