Was a positive drug test alone enough to prove controlled-substance possession under South Carolina law in 2002?

Plain-English summary

A public-safety director asked whether a student or adult who tested positive for a drug, but had no drug on their person, had thereby possessed a controlled substance. In a December 2002 informal opinion, an Assistant Attorney General said a positive test could be circumstantial evidence of possession before ingestion, but did not treat it as sufficient by itself for a conviction. The letter said there was no South Carolina case directly on point and could not predict with certainty whether a South Carolina court would adopt other states' rulings.

The opinion explained South Carolina's distinction between actual possession and constructive possession, both involving physical custody or dominion and control. It quoted out-of-state decisions requiring evidence that possession was knowing and voluntary in addition to a positive test. It predicted a South Carolina court would most likely require corroborating evidence of knowing possession before or at ingestion. The letter expressly described itself as an informal opinion by its signing assistant attorney general.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a positive drug test directly establish possession? A: The letter said it was indirect evidence of earlier possession, and most likely would need corroboration to support a conviction.

Q: Was there a controlling South Carolina case on this precise question? A: The opinion said there was none at the time. It discussed rulings from New Mexico, Indiana, and Georgia without claiming they bound South Carolina courts.

Q: What did the AG say actual and constructive possession required? A: The opinion described actual physical custody and, for constructive possession, dominion and control over the drug or the premises where it was found.

Background and legal framework

The request named § 44-53-370 and another controlled-substance provision. The opinion relied on State v. Martin and State v. Mollison for South Carolina possession rules and quoted State v. McCoy as an out-of-state example concerning drug-test evidence.

Citations and references

• § 44-53-370: controlled-substance provision named in the request.
• State v. Martin and State v. Mollison: South Carolina possession decisions cited by the AG.
• State v. McCoy: New Mexico drug-test discussion quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-30-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02dec-30-sherlin.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
December 30, 2002

CHARLIE CONDON
ATTORNEY GENERAL

Mr. Keith A. Sherlin
Public Safety Director and State Constable
S.C. School For the Deaf and Blind
355 Cedar Springs Road
Spartanburg, South Carolina 29302

Re:

Your Letter of November 27, 2002

Dear Mr. Sherlin:

In your above referenced letter, you ask for this Office's opinion concerning the law of possession of a controlled substance. Specifically, you pose the following hypothetical and ask whether or not it would constitute possession of a controlled substance under S.C. Code Ann. § 44-53-370 and 44-53-445. How does the law apply if a student does not possess the drug on him but has been intoxicated with a drug other than alcohol. For instance, if a child, or even an adult, were to test positive of some particular drug after being tested medically, that still does not constitute possession, or does it? LAW/ANALYSIS For the purpose of possession of a controlled substance, possession requires more than mere presence; the State must show the defendant had dominion or control over the thing allegedly possessed or had the right to exercise dominion or control over it. State v. Martin, 347 S.C. 522, 556 S.E.2d 706 (Ct. App. 2001). Possession of a controlled substance may be actual or constructive; "actual possession" occurs when drugs are found to be in the actual physical custody of the person, while "constructive possession" occurs when a person charged with possession has dominion and control over either the drugs or premises upon which the drugs are found. State v. Mollison, 319 S.C. 41, 459 S.E.2d 88 (Ct. App. 1995). While there is no South Carolina case on point, other jurisdictions have held that the evidence of a controlled substance in an individual's system is circumstantial or indirect evidence that the individual possessed the controlled substance prior to ingesting it.

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REMBE~ C:,fENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, s.c. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

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Mr. Keith Sherlin
December 30, 2002
Page 2
In State v. McCoy, 116 N.M. 491, 496, 864 P.2d 307, 312 (N.M. Ct. App. 1993), reversed on other grounds by State v. Hodge, 118 N.M. 410, 882 P.2d 1 (N.M. 1994), the court stated the following:

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We recognized that a positive drug test is relevant, circumstantial evidence that the defendant possessed cocaine at the time of ingestion. However, we also recognized that a positive drug test alone is insufficient evidence of possession of cocaine. To support a conviction for possession of cocaine there must also be corroborating evidence to prove that the defendant knowingly, intentionally, and voluntarily possessed the drug at the time it was ingested. Similarly, in State v. Vorm, 570 N.E.2d 109, Ind.App. 4 Dist., 1991, the court stated that the "presence of cocaine metabolites in a urine sample, without additional evidence, does not constitute prima facie evidence of knowing and voluntary possession of cocaine." Finally, in Green v. State, 260 Ga. 625, 398 S.E.2d 360 (Ga. 1990), the Supreme Court of Georgia held that "evidence of cocaine metabolites in an individual's urine is direct evidence only of the fact that cocaine was introduced into the body producing the fluid, but only circumstantial or indirect evidence that the person possessed the cocaine before ingesting it." Whether a court in South Carolina faced with the same question would adopt the views expressed by the courts in New Mexico, Indiana, and Georgia is a question that this Office cannot answer. We simply inform you of the views of foreign jurisdictions which have held that a drug test which renders a positive result for a controlled substance is circumstantial evidence that the individual possessed the controlled substance prior to ingestion. However, to be sufficient for a conviction for possession of a controlled substance, a South Carolina court is most likely going to require that there also be some corroborating evidence indicating that there was a knowing possession of the substance prior to or simultaneous with the ingestion. I hope the information provided herein proves helpful. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
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