The Automobile Exception: But I didn't know there was pot in the car!

One story I often hear as a marijuana lawyer is that "There was weed in the car but my friend told the cops it was all his and they are still charging me. Can they do that? It wasn't mine!" The answer is, maybe not anymore in New York.

Pursuant to NY PL §220.25 (1), if a person is in a car and the police find a controlled substance that is not concealed on a particular person, but located somewhere in the car, everybody in the car owns it. This rule is referred to as constructive possession, or the automobile presumption.

In a decision dated October 23, 2008, the State of New York Supreme Court, Appellate Division, 3rd Dept. published an opinion ruling that the automobile presumption does not apply to marijuana. see People v. Dan http://decisions.courts.state.ny.us/ad3/Decisions/2008/100515.pdf Their decision was based on a reading of the plain language of the applicable statutes and an application of what lawyers call statutory construction.

When an argument exists about the meaning of a law, courts try to determine what the legislators intended when they wrote the law. If you look at the section of New York's penal law regarding controlled substance offenses you will see a list of definitions, the purpose of which is to specifically define the meaning of the words used in the statutes in that section. So when lawyers and judges try to interpret the meaning of a statute in a particular section of law, they refer to the definitions in the that list, not a dictionary.

NY PL Art. 220 defines controlled substances and marijuana separately. In this case, Dan's lawyer argued that because the automobile exception statute only uses the words controlled substance, and never mentions the word marijuana, the automobile exception applies only to controlled substances. And since marijuana and controlled substances are defined separately in the statute, marijuana is not a controlled substance for the purpose of the automobile exception statute.

The People can appeal this decision and the NY Court of Appeals may have the final say about this issue. I'll keep you posted.