R. Todd Bennett, P.C.
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'It wasn't mine' drug defense: Does it ever work?

If you get arrested here in Harris County on drug possession charges, you're in legal hot water. The state of Texas is tough on crime, and that includes drug possession.

But what is a viable defense strategy for a drug arrest? The strategy that you choose depends upon the circumstances of your arrest to a great degree. For instance, let's examine the "it wasn't mine" defense.

They're not my drugs

As one can imagine, the cops and the courts have heard this one all too frequently. Still, that doesn't preclude it being a credible defense strategy in some cases.

Consider the following hypothetical scenario:

You and a group of friends are on your way to a concert at the Toyota Center when your friend behind the wheel does a "rolling stop" at an intersection and those blue lights start flashing behind you.

When the police officer pulls you over, he asks where you are headed. After the driver explains that you're on your way to see Journey and Def Leppard, the policeman narrows his eyes. Not content with just issuing a stop sign violation, he asks to search the car, suspecting drugs.

Your nervous friend — knowing that no one in the car is a drug user — surrenders his constitutional rights and consents to the search.

Lo and behold, when the officer reaches his arm under the seat you just vacated, he pulls out a small baggie of white powder. Somebody's going to jail.

They might not really be your drugs

It may look really bad at that point. But let's take a step back and review some information of which the officer is not immediately aware.

It turns out that your buddy moonlights as an Uber driver. The night before the concert, he had six pick-ups at areas all around Houston. With more than a half-dozen strangers in and out of the vehicle within the past 24 hours, suddenly the "it's not mine" defense strategy is making a lot of sense.

Burden of proof is on the prosecution

While the prosecutor still has to prove the state's case, you also should present records that substantiate your testimony that the drugs are not yours. That might include ride logs from Uber, as well as other documentation.

The bottom line with a drug possession defense strategy is that it should be plausible and sufficient to inject doubt into the prosecution's case.

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