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What Do Courts Use To Review A Defendant's Links To A Drug?

Yesterday, we reviewed one of the elements of a the offense of a possession of a controlled substance. That element is possession, and this is one of the most litigated areas of drug possession law. In order to find someone guilty of the offense of possession of marijuana, the State must prove that the defendant exercised care, custody, or control over the marijuana.

However, the court of appeals that will review a conviction will use several factors that will use to assist with its analysis. This test is not a "litmus test"--it is used to establish a logical connection betweent the defendant and the drugs. It is called the "affirmative links" test. These are the factors of the test, as discussed in the Texas Court of Criminal Appeals in Evans v. State, 202 S.W.3d 15, 161-62 n.12 (Tex. Crim. App. 2006):

(1) the defendant's presence when a search is conducted,

(2) whether the contraband was in plain view,

(3) the defendant's proximity to and the accessibility of the narcotic,

(4) whether the defendant was under the influence of narcotics when arrested,

(5) whether the defendant possessed other contraband or narcotics when arrested,

(6) whether the defendant made incriminating statements when arrested,

(7) whether the defendant attempted to flee,

(8) whether the defendant made furtive gestures,

(9) whether there was an odor of contraband,

(10) whether other contraband or drug paraphernalia were present,

(11) whether the defendant owned or had the right to possess the place where the drugs were found,

(12) whether the place where the drugs were found was enclosed,

(13) whether the defendant was found with a large amount of cash, and

(14) whether the conduct of the defendant indicated a consciousness of guilt.

We will evaluate these links and the relevant case law over the next several blogs. If you have been charged with a drug crime such as possesseion of marijuana or cocaine, contact a Plano drug crimes lawyer.