Minors, You Are What You Drink!: Arkansas's New Spin on Minors in ...

988 ARKANSAS LAW REVIEW [Vol. 65:977
B. Controlled Substances Cases
In cases involving controlled substances, most states
adhere to the same reasoning articulated in Evans and
Nethercutt and conclude that once a controlled substance or
any illegal drug is ingested, it is no longer said to be in one’s
possession. 74 The general consensus is that one cannot
continue to exert dominion or control over something that
has been ingested. 75 Therefore, such evidence must be
74. See, e.g., State v. Thronsen, 809 P.2d 941, 943 (Alaska Ct. App. 1991)
(holding that evidence of cocaine in the body does not amount to possession because
a person no longer has control over the substance); People v. Spann, 187 Cal. Rptr.
31, 36 (Ct. App. 1986) (holding that “possession of a controlled substance may not
be proven by its criminal use”); Green v. State, 398 S.E.2d 360, 362 (Ga. 1990)
(holding that “the presence of cocaine metabolites in body fluid is only
circumstantial or indirect evidence,” i.e., “evidence which only tends to establish
[that the person possessed cocaine] by proof of various facts, sustaining by their
consistency the hypothesis claimed” (internal quotations omitted)); State v. Vorm,
570 N.E.2d 109, 111 (Ind. Ct. App. 1991) (holding that the “mere presence of
cocaine metabolites in a blood or urine sample, without additional evidence, does
not constitute prima facie evidence of knowing and voluntary possession of
cocaine”); State v. Ramirez, 100 P.3d 94, 98 (Kan. 2004) (holding that evidence of a
drug in one’s bloodstream does not amount to possession under Kansas law); State
v. Flinchpaugh, 659 P.2d 208, 212 (Kan. 1983) (holding that “[d]iscovery of a drug in
a person's blood is circumstantial evidence tending to prove prior possession of the
drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt”);
Franklin v. State, 258 A.2d 767, 769 (Md. Ct. Spec. App. 1969) (holding that “once
the drug is ingested and assimilated into the taker's bodily system, it is no longer
within his control and/or possession”); State v. Lewis, 394 N.W.2d 212, 217 (Minn.
Ct. App. 1986) (holding that the “usual and ordinary meaning of the term
‘possession’ does not include substances injected into the body and assimilated into
the system,” therefore, evidence of morphine in the body, without more, does not
amount to possession); In re R.L.H., 116 P.3d 791, 795-96 (Mont. 2005) (holding that
evidence of a controlled substance in the body constitutes proof of possession “only
when accompanied by other corroborating evidence of knowing and voluntary
possession”); State v. Yanez, 553 P.2d 252, 252 (N.M. Ct. App. 1976) (holding that
the presence of morphine is only circumstantial evidence tending to show possession
and must be coupled with additional facts before amounting to a possession
offense); State v. Harris, 632 S.E.2d 534, 537 (N.C. Ct. App. 2006) (holding that “a
positive urine test, without more, does not satisfy the intent or the knowledge
requirement inherent in our statutory definition of possession”); State v. Daline, 30
P.3d 426, 430 (Or. Ct. App. 2001) (holding that “consumption of a controlled
substance does not constitute possession of a controlled substance because once it is
in the bloodstream a person can no longer exercise dominion or control over it”);
State v. Griffin, 584 N.W.2d 127, 136 (Wis. Ct. App. 1998) (holding that a positive
urinalysis test for cocaine does not constitute possession of the substance).
75. See, e.g., Franklin, 258 A.2d at 769.