Knowingly Being Present Where Heroin is Kept

Knowingly being present where heroin is kept is a misdemeanor under Massachusetts General Laws Chapter 94C Section 35. You can be convicted of this crime if the district attorney proves beyond a reasonable doubt either:

  1. That you knew you were at a place where heroin was kept or deposited; or
  2. That you were with another person who you knew to be in possession of heroin.
What Constitutes “Possession”?

In order for a defendant to be convicted of “possession” of heroin the Commonwealth must prove beyond a reasonable doubt that he or she had knowledge that the heroin was present and the he or she had the ability to control the substance. An individual may have “direct” possession of something that is in his or her pocket or in his or her hand. However, a person can be in “constructive” possession of an item that is not necessarily on his or her person but in a drawer, glovebox or closet.

What Are Common Defenses To This Crime?

Similar to other drug crimes, a great place to start in defending these types of crimes is to evaluate whether the defendant’s state and federal constitutional rights were violated by an illegal stop, exit order and/or search. If this appears to be the case a motion to suppress must be filed. In the event this type of case goes to trial, the defendant often claims that he or she did not know that the heroin was present.

Is Knowingly Being Present Where Heroin Is Kept A Lesser Included Offense Of Possession Of Heroin With Intent To Distribute?

This is not a lesser included offense of possession of heroin or possession of heroin with intent to sell it. This means that a conviction of this crime is not duplicative of those convictions and that therefore, there can be multiple punishments. This is true even when the district attorney can use the same evidence in proving the different crimes. The fact that a person is present in a place where heroin is illegally kept or with another person who is in possession of heroin does not make him a joint venturer in possession with intent to sell.

It is not a crime to be present where drugs other than heroin are present, even if you are aware of it. This is because the legislature considers certain activities, such as heroin use or sale, to be so dangerous and destructive that merely allowing that conduct to continue is criminal.

If you have been charged with this offense, you face up to one year in prison or a fine of up to $1,000, or both the prison sentence and the fine.

If you or someone you know has been charged with knowingly being present where heroin is kept in Massachusetts, you should call the Law Offices of Kathleen M. McCarthy at (978)-975-8060 or contact her via e-mail as soon as possible. McCarthy is undeniably one of the best drug crimes lawyers that Massachusetts has to offer. She has been successful in handling drug crimes of all kinds for more than 20 years, and she knows how they are likely to proceed. She often gets drug cases dismissed. Additionally, McCarthy is valued and respected by her clients because she keeps them informed at every step of the process and is attentive to their concerns. She is admired by fellow attorneys for her skill and professionalism. The sooner you call, the better your chance of success.

Case Results » Knowingly Being Present Where Heroin is Kept
  • Charges of assault and battery, assault and battery by means of a dangerous weapon, operating after license was suspended and possession of a class A substance to be dismissed/Initial Case

    The police responded to a local shopping Mall for a report of a disturbance in the area of one of the restaurants. The police approached the defendant and another person that, according to the police report, appeared to have “track marks” on their arms, were sweating profusely and acting in an excited manner. The police were aware of a history of drug use by the defendant. The police approached the pair and conducted a frisk of the defendant which led to the recovery of a hypodermic needle and syringe with Heroin in the needle cap. An inventory search of the defendant’s car uncovered a bottle of alcohol. The defendant was not twenty-one and was charged with being a minor in possession of alcohol and possession of heroin. At the time of the defendant’s arrest he was on probation for assault and battery, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, operating after his license was suspended and possession of a class A substance. The probation department was looking to surrender the defendant and have the court enter guilty findings on these offenses and the new offense. Attorney McCarthy successfully negotiated a resolution of the cases whereby the defendant will not have a criminal record and all of the charges will be dismissed in one year provided the defendant stays out of trouble and fulfills agreed upon conditions.

  • Charge of Domestic Assault and Battery Dismissed and One Count of Possession of Herion To Be Dismissed/Initial Case

    According to the police report the police were dispatched to a home to take a report of a past “domestic assault and battery.” The complainant informed the police that her boyfriend had been “shooting up heroin” earlier in the day because there were two needles on the coffee table in the living room where he was sitting. The complainant stated that during a verbal argument between the pair the defendant grabbed her by the arm and spit in her fact. The officers observed red marks over her eye. Officers approached the defendant who had left the home. The officers searched his wallet and found what they believed to be a packet of heroin. Our office filed a motion to suppress evidence and statements. On the day of the hearing the prosecutor dismissed the count of assault and battery. The count of possession of heroin was generally continued for one year. As long as the defendant stays out of trouble the count will be dismissed.

  • Charge of larceny by check over $250.00 dismissed prior to trial/Initial Case

    The complaint alleged that the defendant committed larceny by check over $250.00 in the amount of $278.00. The defendant was served with notice of a probation surrender in another court alleging the larceny over as grounds for the surrender. The defendant faced a two year committed sentence in the event his probation was surrendered in the other court. Attorney McCarthy successfully negotiated the dismissal of the new larceny on the payment of restitution to the aggrieved party. The complaint was dismissed.