Permissive Inference of Drug Possession

Reporter’s Note

In drug possession cases, “[t]he presence of a regulated drug in an automobile . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such drug was found . . . .” 18 V.S.A. § 4221(b). While the statute uses the term “presumption,” this is better described as a “permissive inference.” See State v. Goyette, 156 Vt. 591, 600 (1991) (citing V.R.E. 303; State v. McBurney, 145 Vt. 201, 205 (1984)). “A permissive inference . . . allows rather than requires the trier of fact to find the inferred fact and places no burden on the defendant; this is not unconstitutional.” McBurney, 145 Vt. at 205.

The model instruction CR40-801 largely derives from the trial court’s instruction as quoted in Goyette, 156 Vt. at 600–04, and also includes language from State v. Scales, 2019 VT 7, ¶¶ 11–13. Note that the statute provides three exceptions for which the inference does not apply. 18 V.S.A. § 4221(b)(1)–(3). It might not be necessary to instruct on all three exceptions in every case.