Common Defenses in Drug Possession Cases in Washington State

In Washington State, you could be charged with drug possession if you knowingly have control over a prohibited substance without a valid prescription. The law stipulates that possession can be either actual or constructive. Actual possession means you have the substance on your person, such as in your pocket or purse. Constructive possession, on the other hand, pertains to situations where the substance is in a place you have control over or access to, such as your car or home.

Any type of drug crime conviction can severely impact your future, so it is in your best interest to explore all possible defense options and speak to a seasoned drug crime attorney about your situation as soon as possible. Below, we review some of the most common drug possession defenses in Washington State.

Unwitting Possession

Unwitting possession refers to scenarios where a person is unaware that they possess or have control over a prohibited substance. For instance, if someone else left drugs in your vehicle without your knowledge, or if you borrowed a jacket and didn't realize it contained drugs in its pocket, you may be able to argue unwitting possession. This kind of defense is particularly applicable in cases where the defendant shares a living space or vehicle with others who might have owned or planted the substances without their knowledge.

A strong argument for unwitting possession requires substantial evidence to support the claim of ignorance. It will generally involve providing a detailed examination of the circumstances under which the substance was found and the defendant's relationship with that environment. For example, if drugs were found in a common area of a shared living space, the defendant could argue they were not aware of their presence.

Furthermore, the defendant's character, behavior, and history could also be beneficial in establishing an unwitting possession defense. A defendant without any prior drug-related convictions, with reliable character references, and who can demonstrate a consistent pattern of responsible behavior may be able to convince the court of their lack of knowledge of the drug's presence.

Lack of Possession

The “lack of possession” defense is in some ways similar to the “unwitting possession” defense but fundamentally questions the notion of possession itself. It argues that the defendant, contrary to the charges, did not have actual or constructive possession of the controlled substance at issue. This argument can be effective in cases where the circumstances surrounding the discovery of the drugs are ambiguous or where multiple parties could arguably have had access to the substance.

When a controlled substance is found in a vehicle containing multiple occupants, for example, it may be challenging for the prosecution to conclusively establish which individual had possession of the drugs, especially if the substance was found in a common area of the vehicle rather than on a specific person. The defense could argue a lack of possession, stating that the defendant did not have exclusive access or control over the area where the drugs were found, so they cannot be held accountable for their presence.

In a similar vein, if a controlled substance is found in a shared living space, like a communal apartment or a house with multiple occupants, it may be difficult to prove who the drugs belonged to. Again, similar to the “unwitting possession” defense, the defendant could argue that they lacked knowledge about the drug's presence and had no control over the area where it was discovered.

The lack of possession defense often requires a careful examination of the evidence and the specifics of the case. The defense needs to demonstrate reasonable doubt about the defendant's knowledge and control over the drugs. This could involve questioning the credibility of witness testimony, scrutinizing the manner in which the drugs were discovered, and investigating other potential culprits who might have had access to the place where the drugs were found.

Unreasonable Search and Seizure

An “unreasonable search and seizure” occurs when law enforcement officers conduct a search or confiscate property without probable cause or a search warrant. The Fourth Amendment of the United States Constitution protects citizens against such practices, and any evidence obtained in this way is generally deemed inadmissible in court.

For example, if law enforcement found a prohibited substance during a traffic stop but had no reasonable suspicion to instigate a search in the first place, the evidence could be challenged in court. Your defense attorney would need to demonstrate that the search was unwarranted and that the officers overstepped their legal boundaries. If successful, the court could decide to suppress the evidence, making it difficult for the prosecution to prove a case for drug possession.

Similarly, if drugs were found during a search of your home without your consent, a valid search warrant, or exigent circumstances, this could also be grounds for a defense based on unreasonable search and seizure. The privacy of one's home is strongly protected under the Fourth Amendment, and any violation of this privacy could potentially nullify the evidence found during the search.

However, it's critical to understand that the application of the Fourth Amendment's protections can be complex and nuanced, and not all searches conducted without a warrant are deemed illegal. Factors such as the location of the search, the presence of exigent circumstances, and whether you consented to the search can all impact the court's decision.


Entrapment occurs when an officer induces or encourages a person to commit a crime that they otherwise would not have committed. Demonstrating entrapment may serve as an effective defense to drug possession charges.

For example, if an undercover officer excessively pressured or manipulated you into purchasing illegal substances when you otherwise would not have, you may be a victim of entrapment. In such cases, your defense attorney would need to illustrate that you were not predisposed to commit the crime and only did so due to the officer's undue influence or coercion.

However, it is important to differentiate between entrapment and a sting operation. Law enforcement is allowed to present opportunities for criminal behavior – such as an undercover officer offering to sell drugs – and it is not considered entrapment if a person willingly chooses to engage in the illegal activity. Proving entrapment can thus be quite challenging and requires a nuanced understanding of the law. A seasoned defense attorney can accurately assess the merits of an entrapment defense in your specific case.

Valid Prescription

Having a valid prescription for the controlled substance you are accused of possessing can serve as a powerful defense in certain situations, especially in cases involving drugs that straddle the line between legal and illegal status. This defense hinges on the legality of possessing an otherwise prohibited substance if you have a valid medical prescription from a licensed medical professional. It is essential to note that the prescription must be legitimate and issued in the course of professional practice for this defense to work.

Consider an example scenario where an individual is charged with possession of a controlled substance that is also a prescription medication, such as Adderall or OxyContin. If this individual has a valid prescription for the drug in question, they can provide this as evidence, thereby negating any wrongful possession allegations. The key word here is “valid.” The prescription must be current, from a licensed practitioner, and for a legitimate medical purpose.

Providing proof of the prescription is crucial to this defense strategy. This can be done by presenting your written prescription, a pill bottle with your and your doctor's names, and/or pharmacy records. It's also important to adhere to the prescribed dosage, as having quantities much larger than what's prescribed could weaken your defense.

The valid prescription defense does not apply to all substances, as some drugs are classified by the government as having no accepted medical use. Consequently, no valid prescription can be written for these substances, and possession of them remains illegal under any circumstance. Examples include heroin, LSD, and ecstasy.

Also, bear in mind that just as with any defense, the prescription defense isn't foolproof and may not apply in all situations or jurisdictions. There may be limits to how much of the drug you can possess at one time or how the drug is stored.

Charged with Drug Possession in Washington State? Turn to the Hester Law Group.

At Hester Law Group, our skilled attorneys understand how to successfully defend clients facing drug possession charges. We recognize the devastating impact these charges can have on your personal and professional life, which is why we are ready to provide you with an aggressive and comprehensive defense strategy tailored to your unique circumstances.

Our lawyers are well-versed in a variety of effective defense strategies, including all those discussed above. We are prepared to diligently review the details of your case, challenge the prosecution's evidence, and work tirelessly to highlight any procedural errors or constitutional violations that may have occurred during your arrest. Our team has an in-depth understanding of the intersection of drug possession laws and Fourth Amendment case law, which we leverage to question the legality of the search and seizure procedures, the credibility of the lab analysis, and the legitimacy of the chain of custody. No matter the complexity of your case, we are committed to protecting your rights and fighting for your freedom.

Contact us online or call (253) 300-3034 to schedule a free initial consultation today.