I was arrested for a possesion charge when I was not in possesion of the item and I read read police report they did not test the item for finger prints to suppliment the charge how do i word that in a motion to the judge to dissniss the charge?
Answer
The standard is "knowingly" possessed or controlled. The State of Arizona always has an argument for constructive possession or control. They will never check something like this for fingerprints. Their case is going to be about proximity. If it was in the car that is registered to you, then there is case law that says you are in control or possession of it; it even shifts the burden back onto you because knowing element is now presumed because it is your car. Defenses like the one your are contemplating are really fact specific. This is where you need an attorney to step in and review the facts to determine if there is a defense. Just because you didn't have the pot in your pocket doesn't mean that they can't prove possession. You simply haven't given enough information.
The argument that you must make is that you either didn't know it was there and there was no way for you to know it was contraband, or that it was under someone else's control and you couldn't touch it, or make both. I've heard the argument a hundred times. "Those aren't my pants, how could I know that there was pot in the pockets." Don't think possession; attack knowledge and control.
Good Luck.
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