In Wisconsin, it is illegal to be in possession or attempt to be in possession of certain controlled substances, including illegal Schedule 1 drugs such as cocaine, or even certain prescribed controlled substances without a valid prescription. The penalty for possession depends entirely on the type of substance involved. If at any time prior to the current charged offense, you had been convicted of a drug-related felony or misdemeanor, your current drug-related offense can be charged as a second and subsequent, which increases the criminal penalty.
For example, Possession of Heroin or Methamphetamine as a first offense is a Class I Felony with a maximum penalty of up to 3.5 years confinement and/or a $10,000.00 fine if convicted. By contrast, a conviction for a first offense of Possession of PCP, Amphetamine, or Cocaine, the maximum penalty is one year confinement in a county jail and/or a fine of $5,000.00.; however, if charged as a second and subsequent, this offense becomes a Class I Felony, with the same penalties as noted above. The maximum penalty for Possession of THC as a first offense is a fine of $1,000 and/or imprisonment for 6 months; however, if charged as a second and subsequent, this offense becomes a Class I Felony with the same penalties listed above. An Attempted Possession of A Controlled Substance charge means that the State is accusing you of unsuccessfully attempted to possess an illegal controlled substance but you were unable to do so. It carries the same potential penalties, if convicted, as the act of Possession of A Controlled Substance for the type of controlled substance you were alleged to have attempted to possess.
To prove you guilty of Possession of A Controlled Substance, the State must prove beyond a reasonable doubt that: (1) you possessed a substance (meaning you “knowingly” had “actual physical control” of that substance; (2) that the substance was an illegal controlled substance; and (3) you knew or believed that the substance was an illegal controlled substance that was unlawful for you to possess. By contrast to prove Attempted Possession of A Controlled Substances, the State must prove two elements beyond a reasonable doubt: (1) that you attempted to possess a specific controlled substance (meaning that you unequivocally acted to possess that substance but that you were unable to do so because of a third person or another factor prevented you from doing so; and (2) you knew or believed that the controlled substance was an illegal controlled substance.
There are many potential defense to Possession or Attempted Possession of a Controlled Substance that depend on the facts of the specific case. As one example, it is quite common for multiple people to be arrested for possession of a controlled substance found in a house or vehicle when the arresting officer is unsure of which person owned or controlled the controlled substance. Although in some cases, more than one person can be held legally responsible for possessing the same controlled substance, you cannot be guilty for example if the police found your roommate’s drugs in your house. In Int. of R. B., 108 Wis. 2d 494, 496, 322 N.W.2d 502, 503 (Ct. App. 1982) (“opportunity to possess, standing alone, does not establish possession. There must additionally be the exercise of some dominion or control over the substance”). Finally, as another example, it is common for individuals charged with a crime and facing serious criminal consequences to falsely accuse another person, instead. Particularly, when the individual making the false accusation has a lengthy criminal history, or history of dishonesty, that evidence may be used to challenge the bias and motive of the person who made the false accusation. Certainly, each defense requires a thorough and careful analysis of the facts of the case. Our law firm has consistently raised successful defenses in these types of cases due to how common it is for individuals to make a false allegations. Please contact our offices to schedule a consultation with a criminal defense attorney to discuss the facts of your case.