712-1251 Possession in a motor vehicle; prima facie evidence. (1) Except as provided in subsection (2), the presence of a dangerous drug, harmful drug, or detrimental drug in a motor vehicle, other than a public omnibus, is prima facie evidence of knowing possession thereof by each and every person in the vehicle at the time the drug was found.

(2) Subsection (1) does not apply to:

(a) Other occupants of the motor vehicle if the substance is found upon the person of one of the occupants therein;

(b) All occupants, except the driver or owner of the motor vehicle, if the substance is found in some portion of the vehicle normally accessible only to the driver or owner; or

(c) The driver of a motor vehicle who is at the time operating it for hire in the pursuit of the driver's trade, if the substance is found in a part of the vehicle used or occupied by passengers. [L 1972, c 9, pt of 1; gen ch 1993]

 

Revision Note

 

In subsection (2)(a), "or" deleted pursuant to 23G-15.

 

COMMENTARY ON 712-1251

 

Subsection (1) of this section establishes a rule of prima facie evidence regarding the possession of a dangerous drug, harmful drug, or detrimental drug when it is found in a motor vehicle. Section 701-117 sets forth the definition of "prima facie evidence". Subsection (2) provides that the evidentiary rule does not apply to various occupants of a vehicle under certain circumstances. If the substance is found upon the person of one of the occupants, then the evidentiary rule does not apply to other occupants of the vehicle. If it is found in some area of the vehicle normally accessible only to the driver, the rule applies only to the driver. If a drug is found in the part of a hired or chauffeured vehicle used or occupied by passengers, the evidentiary rule does not apply to the driver but does apply to the passenger or passengers.

When any of the specified substances is found in a vehicle, but not upon the person of one of the occupants, it is almost impossible for the prosecutor to prove actual possession by direct evidence. However, the inference, in the absence of contrary evidence which raises a reasonable doubt in the mind of the trier of fact, is overwhelming that if, for example, the substance is in that portion of the vehicle to which only the driver and owner have access, that the substance is in fact in the possession and under the control of the owner-occupant or driver-occupant. The same holds true for the other provisions of subsections (1) and (2). Therefore, subsections (1) and (2) are designed and provided to let the prosecutor get the case to the jury in situations where direct evidence is difficult to obtain and the weight of a logical inference is sufficient to warrant a special evidentiary rule.

 

Case Notes

 

Section permits but does not require the inference of guilt, and is constitutional as applied to dealership quantities of drugs. 61 H. 99, 595 P.2d 1072 (1979).

 

 

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