University of Wisconsin Law School

RESOURCE CENTER REPORT

Number 97-2

October 1997

University of Wisconsin Law School

Resource Center on Impaired Driving

Ingestion of Drugs as Possession Under the Controlled Substances Act

Nina J. Emerson, Director

Drew Cochrane, Research Assistant

Introduction

In the impaired driving arena,prosecuting a driver suspectedof operating under the influenceof drugs other than alcohol canbe difficult and confounding. Wisconsin's implied consentlaw requires any driver on thestate's highways to submit to atest of his or her blood, breath,or urine pursuant to a validarrest for impaired driving.⁽¹⁾ Additionally, evidence that adriver has a prohibited alcoholconcentration (PAC)⁽²⁾ is primafacie evidence of impaireddriving,⁽³⁾ while a driver's refusalto submit to a chemical test maybe admitted in court as evidencethat a driver knew he or she wasimpaired.⁽⁴⁾ These tools greatlyincrease the probability of thesuccessful prosecution of adefendant for operating whileunder the influence of alcohol.

However, the case is not asclear when a driver is suspectedof operating a motor vehiclewhile under the influence of adrug(s) other than alcohol.Prosecutors lack specific, primafacie evidence of prohibitedlevels of drugs and mustestablish, through testimony,that the defendant was impairedat the time of driving. Thispresents prosecutors with amuch more difficult task andmay lead to a greaterwillingness to plea bargain withdefendants arrested for drug-impaired driving. However,public policy concerns over thedangers represented by driversimpaired by drugs dictate thatprosecutors be equally preparedto prosecute the drug-impaireddriver as well as the drunkdriver.

This report will discuss onepossible legal strategyprosecutors may use whendealing with the drug-impaireddriver; namely, prosecuting andobtaining a conviction forpossession of a controlledsubstance.⁽⁵⁾ In addition, thisreport will review existing caselaw outside of Wisconsin thatsupports arguments for both theprosecution and the defense. Finally, this report will considercase law in Wisconsin that maybe applicable for treating thevoluntary ingestion of acontrolled substance aspossession of a controlledsubstance.

Generally

The law in Wisconsin is unclearon whether ingestion can betreated as possession. It isapparent that prosecutions forthis type of possession generallydo not occur, presumablybecause current Wisconsin lawdoes not explicitly allow forsuch prosecution. Otherjurisdictions have faced similarissues, but as those courts havereached decisions on both sidesof the issue, a review of thecase law from otherjurisdictions is equally vague. The case law that does addressthis issue varies, depending onthe reason for the ingestion ofthe drug, i.e., personal use vs.concealment from police. Given these ambiguities,persuasive arguments can bemade on both sides of the issue.

Discussion

The Uniform ControlledSubstances Act⁽⁶⁾ providespenalties for the possession ofcontrolled substances.⁽⁷⁾ However, the definitionssubchapter⁽⁸⁾ fails to define"possession" as used in the act. When a word is not defined inthe statute, courts "construe theword according to its ordinaryand accepted meaning, and . . .may consult a dictionary for thatpurpose."⁽⁹⁾ The dictionarydefines possession as "the act ofhaving or taking into control."⁽¹⁰⁾Courts have typically acceptedthe Webster's definition,although some courts havedefined possession as eitheractual or constructive. Thedefinition for actual possessionis obvious: it must simply beestablished that controlledsubstances were found on theperson. Constructivepossession encompassessituations where controlledsubstances are found in areascontrolled by the individual butnot directly on his or herperson.⁽¹¹⁾

In Schmidt v. State,⁽¹²⁾ theWisconsin Supreme court heldthat "[p]ossession of an illicitdrug may be imputed when thecontraband is found in a placeimmediately accessible to theaccused and subject to his [orher] exclusive or joint dominionand control, provided that theaccused has knowledge of thepresence of the drug."⁽¹³⁾ InSchmidt, the court concludedthere was constructivepossession where amphetaminesand marijuana were found in thedefendant's automobile.

However, the use of"constructive possession" maynot be particularly helpful indetermining whether someonewho ingested a controlledsubstance possessed thesubstance. It is a legal nicetyused by courts in reaching anend result without providingguidance for how it should beapplied in future cases. TheWisconsin jury instructions aremore helpful. They definepossession to mean that "thedefendant knowingly had theitem under his actual physicalcontrol," or that "an item is(also) in a person's possession ifit is in an area over which theperson has control and theperson intends to exercisecontrol over the item."⁽¹⁴⁾ Theinstructions do not make adistinction between "real" and"constructive" possession. Infact, the jury instructionscommittee states that "it ispreferable not to refer to'constructive possession' as asubstitute or alternative for'real' possession."⁽¹⁵⁾

The jury instructions also definethe three elements required toprove possession of a controlledsubstance: (1) that the defendantpossessed the substance, (2) thatthe substance was a controlledsubstance, and (3) that thedefendant knew or believed thesubstance was a controlledsubstance.⁽¹⁶⁾ These juryinstructions provide clearguidelines for what willconstitute possession withoutgetting mired down in adiscussion of whether it shouldbe called "actual" or"constructive."

Possession

In lieu of applying a"constructive possession"analysis, there are two ways tolook at the possession ofingested drugs.

First, that the presence of adrug, e.g., LSD⁽¹⁷⁾ in thebloodstream constitutespossession. Although courtsseem reluctant to call thispossession, they would probablyfind that the same LSD onblotter paper, in a sugar cube,or in a pill in a person's pocketwould be possession. Similarly,if the person put the blotterpaper under his or her tongue toconceal it from police, thiswould also be possession. However, once the LSD is inthe person's bloodstream, thecourts would likely not considerthe person who ingested theLSD to be in possession. Thedetermining factor appears to bewhether the substance is underthe exclusive control of theperson who ingested it.

Second, the presence of a drugin the bloodstream could beviewed as evidence of past orprior possession. TheMinnesota Court of Appealsadopted this approach⁽¹⁸⁾concluding that it providedcircumstantial evidence⁽¹⁹⁾ butwas not enough by itself toestablish guilt. When applied tothe LSD example above, thereasoning is that if there is LSDin your blood, the person musthave had it on blotter paper, ina sugar cube, or in a pill beforeingesting it. This approach tofinding prior or past possessionvia circumstantial evidence of adrug's presence seemsstraightforward and sound. However, both approachesassume that the drug can bepositively identified and that thedefendant had knowledge he orshe ingested a known controlledsubstance.⁽²⁰⁾

Other Jurisdictions

In People v. Palaschak,⁽²¹⁾ theCalifornia Supreme Court heldthat a person may be convictedof possession of a controlledsubstance despite havingingested the drugs prior toarrest, arguing that the "loss ordestruction of evidence byingestion should not defeat apossession charge."⁽²²⁾ Equatingthe ingestion of a controlledsubstance with "flushing it downthe toilet," the court inPalaschak upheld thedefendant's conviction ofpossession charges, stating that"[t]he additional, fortuitous factthat the defendant has consumedor ingested the drug likewiseshould not preclude a finding ofhis prior unlawful possession ofit."⁽²³⁾

The court's discussion inPalaschak illustrates therequirements for obtaining afinding of guilt. The courtstated that "we see no reasonwhy a drug possession chargecould not be based on direct orcircumstantial evidence of pastpossession."⁽²⁴⁾ In a criminalcase, each element required fora conviction may be establishedusing entirely circumstantialevidence.⁽²⁵⁾ In the case ofPalaschak, additionalcircumstantial evidence obtainedupon arrest, in addition topositive test results for LSD,made conviction on possessioncharges easier.

In Schlobohm v. Rice,⁽²⁶⁾ theIllinois Court of Appeals foundthat the mere presence of acontrolled substance in aperson's body can be construedas evidence of prior ingestionand, therefore, prior possession. In its review of a disciplinaryaction, the court held that "thepresence of a controlledsubstance in an individual'sbody, while not direct evidenceof knowing possession,circumstantially gave rise to animplication of prior possessionwhich later resulted in ingestionor injection."⁽²⁷⁾ The courtadded, "[a]lthough theconceptual possession hadended, the presence of thesubstance within [appellant's]body could have been deemedto have carried with it the clearand logical implication of priorknowledgeable possession."⁽²⁸⁾

Though Schlobohm appears tobe on point, its specificapplication to the criminalpossession statute is difficult toassess, as the case involved thedisciplinary removal of a policeofficer who tested positive forcocaine use during a drugscreening test.⁽²⁹⁾ Therefore, it isarguable that the court mayhave applied a differentstandard here to the definitionof "possession" due to publicpolicy concerns of having adrug-abusing officer on thepolice force.⁽³⁰⁾

In State v. Thronsen,⁽³¹⁾ theAlaska Court of Appeals statedthat "[a]ll of the cases we havereviewed support the conclusionthat a defendant cannot beconvicted for possession ofcocaine in his or her body,"reasoning that "a person whohas cocaine in his or her bodyhas no control over the cocaineand therefore does not havepossession."⁽³²⁾ The courtapplied the theory ofconstructive possession tooverturn the defendant'sconviction for possession.⁽³³⁾ If aWisconsin court applied thisanalysis, it would be unlikelythat the controlled substances ina person's body would beconsidered "immediatelyaccessible" and under the"exclusive control" of thedefendant to constitutepossession.

Similarly, other jurisdictionshave rejected possessionconvictions based upon thepositive test results of adefendant following arrest. InIndiana, the court of appealsheld that "the mere presence ofcocaine metabolites in a bloodor urine sample, withoutadditional evidence, does notconstitute prima facie evidenceof knowing and voluntarypossession of cocaine."⁽³⁴⁾ TheMinnesota Court of Appeals,citing a decision from Kansas,agreed, stating "[d]iscovery of adrug in a person's blood iscircumstantial evidence tendingto prove prior possession of thedrug, but it is not sufficientevidence to establish guiltbeyond a reasonable doubt."⁽³⁵⁾

Wisconsin Case Law

In Wisconsin, State v. Johnson⁽³⁶⁾may be the most instructive. Johnson involved the testimonyof a lay witness who stated thatthe defendant supplied LSD toseveral individuals who ingestedit before their arrest. The onlyevidence of the LSD came fromthe testimony of one of thepeople who ingested the drug. In that case, the court held thatcircumstantial evidence may beused to demonstrate that acontrolled substance wassupplied by the defendant.⁽³⁷⁾ But, Johnson involved the act ofsupplying a controlled substancewhich may make it difficult toapply to prove possession byingestion.

In State v. Hobart,⁽³⁸⁾ anunpublished decision,⁽³⁹⁾ theWisconsin Court of Appealsupheld the defendant'sconviction for possession of acontrolled substance, basedupon blood test results takenafter a traffic crash whichshowed the presence of THC.⁽⁴⁰⁾ In fact, the court directly statesthat one issue in the case iswhether a criminal complaintthat alleges only a positive THCblood test is enough to establishprobable cause to believedefendant knowingly possesseda controlled substance. However, the court in Hobartdoes not directly address theissue of possession, insteadbasing its decision on whetherthe blood test, which was takenwithout a warrant after thedefendant refused a chemicaltest, violated the defendant'sFourth Amendment right againstunreasonable searches.

Conclusion

Because Wisconsin appellatecourts have not adequatelyaddressed the "ingestion ofdrugs as possession" issue,prosecuting the drug-impaireddriver for possession of acontrolled substance requiresbreaking new ground. Wisconsin courts reviewingsuch a case could take twodifferent approaches.

First, courts could follow thereasoning of the decisions fromMinnesota and Alaska, findingthat possession of a controlledcannot be based solely onevidence that the substance wasingested. This approach isbased on the conclusion that theperson no longer has "control"over the substance.

Second, Wisconsin courts couldrationally reach the oppositeconclusion in either of twoways. One is to apply thestandard definition of"possession" to drugs ingestedby a person and conclude thatthe person does, in fact,continue to have those drugsunder his or her control. Obviously, this approachrequires departure from theconclusions reached in theMinnesota and Alaska cases. The other way is to rely on thepresence of drugs in a person'ssystem to provide past or priorpossession of the drugs thatwere ingested. While this isconsistent with the approachestaken by the courts in Californiaand Illinois, one case involvedadditional circumstantialevidence and the other involvedreview of a disciplinary matter. Therefore, the presence ofdrugs alone may not be enoughto constitute possession.

Although the rationale thatallows a finding of possessionappears to be the more soundapproach, it is worthemphasizing that this establishesonly the issue of possession. Inaddition to this element, thestate must also prove theidentity of the substance andthat the defendant knew thesubstance was a controlledsubstance to support a charge ofpossession of a controlledsubstance. Serious practicalproblems may make the proofof these facts extremelydifficult, and juries may bereluctant to convict if theybelieve the theory ofprosecution is overly technicalor unfair. These practicalconcerns may present a moreserious barrier to pursuing the"ingestion as possession" theorythan the technical argumentabout whether "possession"exists.

In lieu of relying on courtdecisions, an alternativesolution might be to draft astatute that specifically definespossession to include ingestion. This statute could definepossession without relying onthe theories of "constructive"and "actual" possession. In thisway, the state legislature couldaddress the issue of possessionof a controlled substance in amore straightforward mannerthat would give clear directionto the courts presented withthese cases.

Endnotes

1. Wis. Stat. § 343.305(2). Unless otherwise stated, allreferences to statute sections arefrom the 1995-96 statutes.

2. Wis. Stat. § 940.01(46m)provides:

"Prohibited alcoholconcentration" means oneof the following:

(a) If the person has oneor no prior convictions,suspensions, orrevocations, as countedunder s. 343.307(1), analcohol concentration of0.1 or more.

(b) If the person has 2 ormore prior convictions,suspensions, orrevocations, as countedunder s. 343.307(1), analcohol concentration of0.08 or more.

3. Wis. Stat. § 885.235(1).

4. "Refusal evidence is relevant,because it makes more probable thecrucial fact of intoxication because. . . [a] reasonable inference fromrefusal to take a mandatory [bloodalcohol] test is consciousness ofguilt." State v. Donner, 192Wis.2d 305, 312-13, 531 N.W.2d369, 373 (Ct. App. 1994), citingState v. Agaier, 165 Wis.2d 515,478 N.W.2d 292 (Ct. App. 1991).

5. Controlled substance is definedas a drug, substance, or immediateprecursor included in schedules I toV, as listed in subchapter II of theUniform Controlled Substances Act,§ 961. Wis. Stat. § 961.01(4).

6. Wis. Stat. Ch. 961. "Thischapter may be cited as the"Uniform Controlled SubstancesAct." Wis. Stat. § 961.62.

7. Wis. Stat. § 961.41(3)(g)provides in part:

"No person may possessor attempt to possess acontrolled substance or acontrolled substanceanalog. . . . Thepenalties for possessionrange from a fine of notmore than $1,000 orimprisonment for notmore than 6 months orboth for possession oftetrahydrocannabinols to afine of not more than$5,000 or imprisonmentfor not more than oneyear or both for a narcoticdrug or heroin. Thepenalties increase onsecond and subsequentoffenses." Wis. Stat.§ 961.41(3g)(a)1-3.

8. Wis. Stat. § 961.01.

9. In the Interest ofChristopher D., 191 Wis.2d 680,704, 530 N.W.2d 34, 43 (Ct. App.1995).

10. Webster's New WorldDictionary, Second Edition,Definition 1(a).

11. Common situations whereconstructive possession has beenfound are when controlledsubstances are discovered in anindividual's automobile or house. Schmidt v. State, 77 Wis.2d 370,379, 253 N.W.2d 204, 208 (1977);citing People v. Newman, 5 Cal.3d48 (Cal. 1971).

12. 77 Wis.2d 370 (1977).

13. Id. at 379.

14. Wis JI-Criminal 920 (1990).

15. Further, the comment statesthat constructive possession shouldbe viewed as a description ofcircumstances that are sufficient tosupport an inference that the personexercised control over, or intendedto possess, the item in question. Comment, Wis JI-Criminal 920(1990).

16. Wis JI-Criminal 6030 (1997).

17. Lysergic acid diethylamide,commonly known as "LSD," is aschedule 1 drug. Wis. Stat.§ 961.14(4)(j).

18. State v. Lewis, 394 N.W.2d212 (Minn. Ct. App. 1986).

19. Other direct or circumstantialevidence may include the possessionof drug paraphernalia, the testimonyof officers relating to theindividual's behavior during thestop or arrest, the testimony ofwitnesses, or the defendant's ownadmissions.

20. To prove knowledge, the statemust prove that the defendant eitherknew the identity of the substanceor that the substance is a controlledsubstance under the law. Comment,Wis JI-Criminal 6030 (1997). Seealso Wis JI-Criminal 6000 (1997)for a discussion of the knowledgerequirement.

21. 9 Cal. 4th 1236 (Cal. 1995).

22. Id. at 1241.

23. Id. at 1242.

24. Id.

25. Id.

26. 157 Ill. App.3d 90; 510N.E.2d 43 (Ill. App. 1987).

27. Id. at 96.

28. Id. at 97.

29. Id. at 92.

30. See also United States v.Battle, 993 F.2d 49, 50 (4th Cir.1993), where the court held that"proof of intentional use ofcontrolled substances is sufficient toestablish possession for the purposesof applying" 18 U.S.C. § 3583(g)-- possession of controlledsubstances in violation of the termsof a supervised release. For asimilar discussion, see United Statesv. Blackston, 940 F.2d 877, 887(3rd Cir. 1991). Blackston makesthe point that in simple possessioncases the quantity of drugspossessed is irrelevant to theprosecution, allowing theprosecution of individuals who haveingested the controlled substance asa way of making actualmeasurement of the drugimpossible. Id. at 883.

31. 809 P.2d 941 (Alas. App.1991).

32. Id. at 943.

33. Id. In Thronsen, theprosecutors relied on precedentoutside the state of Alaska. Specifically, they cited two casesfrom Georgia to support theproposition that drugs in the bodymay constitute possession. Thecourt disagreed with theprosecution's interpretation of theGeorgia courts' holdings, stating"[these cases] do not appear to standfor the proposition that a defendantmay be convicted of possession ofcocaine 'in his body.'"

34. State v. Vorm, 570 N.E.2d109, 111 (Ind. Ct. App. 1991).

35. Lewis, 394 N.W.2d at 214(Minn. Ct. App. 1986); citing Statev. Flinchpaugh, 659 P.2d 208, 212(Kan. 1983).

36. 54 Wis.2d 561, 196 N.W.2d717 (1972).

37. Id. at 567.

38. No. 96-3353-CR (Wis. Ct.App. 1997).

39. An unpublished opinion is ofno precedential value and for thisreason may not be cited in any courtof this state as precedent orauthority, except to support a claimof res judicata, collateral estoppel,or law of the case. Wis. Stat.§ 809.23(3).

40. Tetrahydrocannabinols,commonly known as "THC," inany form includingtetrahydrocannabinols contained inmarijuana, obtained from marijuanaor chemically synthesized is aschedule 1 drug. Wis. Stat.§ 961.14(4)(t).

The Resource Center on ImpairedDriving thanks John Ekman forhis initial research on this reportand Professor David Schultz forhis editorial assistance.

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