Possession of a Controlled Substance in Kentucky

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All states regulate and control the possession of controlled dangerous substances (CDS), though each differs in its exact definition of CDS and the penalties for possession. Kentucky classifies not only well-known drugs like marijuana, heroin, and cocaine as CDS, but also the compounds used to manufacture them.

This article discusses the possession of CDS only. Making or selling CDS carries different penalties. For more information on CDS manufacture and sale, and the related penalties, see Sale of a Controlled Substance Kentucky.

Also, while considered a CDS, this article does not cover Kentucky’s marijuana possession and sale laws. To learn more about that topic, see Kentucky Marijuana Laws.

How Kentucky Classifies CDS

Kentucky divides its CDS into five “schedules.” These are used to determine the dangerousness of the CDS, and the applicable penalties for personal possession (described in the next section).

  • Schedule I drugs. These drugs have a high potential for abuse and no accepted medical use. (Ky. Rev. Stat. Ann. Section 218.040.)
  • Schedule II drugs. These drugs have a high potential for abuse, but also have one or more severely restricted medical uses. (Ky. Rev. Stat. Ann. Section 218.060.)
  • Schedule III drugs. These drugs have a potential for abuse that is less than drugs in Schedules I and II (abuse leading to moderate or low physical dependence, or high psychological dependence), and accepted medical uses. (Ky. Rev. Stat. Ann. Section 218.080.)
  • Schedule IV drugs. These drugs have a low potential for abuse compared with Schedule III drugs (abuse leading to limited physical or psychological dependence), and currently accepted medical uses. (Ky. Rev. Stat. Ann. Section 218.100.)
  • Schedule V drugs. These drugs have a  low potential for abuse when compared with Schedule IV drugs, and currently accepted medical uses. (Ky. Rev. Stat. Ann. Section 218.120.)

If you’ve been arrested for CDS possession, you’ll need to consult the Kentucky Code that lists precisely which drugs fit into each group.

Penalties for Possessing CDS

With limited exceptions (such as possessing legally prescribed prescription drugs), it is illegal to possess CDS in Kentucky. The crime you are charged with—and the applicable penalties—will depend on the type and amount of CDS that was involved in the violation.

Possession of CDS in the First Degree

Someone who knowingly possesses specified amounts Schedule I or II substances, controlled substance analogues, methamphetamine, LSD, phencyclidine, GHB, or Flunitrazepam, may be charged with a class D felony.

For a first or second offense, the judge may subject the defendant to presumptive probation, or a deferred prosecution program. These alternatives are favored for first offenses, and available (though not favored) for second offenses. Presumptive probation, or a deferred prosecution program allow a defendant to enter into a probation program, and if the defendant carries out the conditions placed on probation by the judge, the defendant may be discharged and released without paying fines or spending the applicable time in prison (as would occur if the defendant were convicted of the underlying crime).

If the defendant does not meet the conditions of probation, the judge will  try the defendant on the class D felony charges. If convicted, penalties will include a fine of at least $1,000 (and up to $10,000), or double the gain from the crime (whichever is greater); at least one (and up to three) years in prison; or both.

For third and subsequent offenses, the defendant will stand trial for the underlying crime, without an opportunity to undergo deferred prosecution. (Ky. Rev. Stat. Ann. Section 218A.1415.)

Possession of CDS in the Second Degree

Someone who knowingly possesses specified amounts of Schedule I or II substances that are not narcotic drugs, or some substances in Schedule III, may be charged with a class A misdemeanor. If convicted, penalties include fine of $500, up to one year in jail, or both.  (Ky. Rev. Stat. Ann. Section 218A.1416.)

Possession of CDS in the Third Degree

Someone who knowingly possesses Schedule IV or V substances may be charged with  a class A misdemeanor. If convicted, penalties include fine of $500, up to one year in jail, or both. (Ky. Rev. Stat. Ann. Section 218A.1417.)

Possession of Salvia

Knowingly possessing salvia for human consumption is a class B misdemeanor. Penalties include a fine of $250, up to 30 days in jail, or both. (Ky. Rev. Stat. Ann. Section 218A.1451.)

Persistent Felony Offender Status 

Increased penalties apply to defendants who have previously been convicted of felony charges. This section does not apply to a defendant who is facing a class D felony charge for what would otherwise be a class A misdemeanor, but has been increased to a felony charge because of a second or subsequent (misdemeanor) offense.

Persistent felony offender in the first degree

A persistent felony offender in the first degree is a defendant who is older than 21, and has two or more previous felony convictions in any state where a felony incurs one year or more of prison time, and the defendant was older than 18 at the time of the previous conviction. The defendant must have either completed the sentence for any of the previous felonies within five years prior to the date when the currently-charged crime was committed, or have been on probation, parole, or in custody at the time of the currently-charged crime.

 If the currently charged crime is a class B felony, the applicable prison sentence increases to at least 20 (and up to 50) years. If the currently charged crime is a class C or D felony, the applicable prison sentence increases to at least ten (and up to 20) years. (Ky. Rev. Stat. Ann. Section 532.080.)

Persistent felony offender in the second degree

A persistent felony offender in the second degree is a defendant who is older than 21, and has one previous felony conviction in any state where a felony incurs one year or more of prison time, and the defendant was older than 18 at the time of the previous conviction. The defendant must have either completed the sentence for the previous felony within five years prior to the date when the currently-charged crime was committed, or have been on probation, parole, or in custody at the time of the currently-charged crime.

A persistent felony offender in the second degree will be sentenced according to the next highest degree of crime from the charged crime. For example, if the defendant’s crime would normally be charged as a class D felony, but the defendant is a persistent felony offender in the second degree, the crime will instead be charged as a class C felony (and incur the applicable penalties for a class C felony upon conviction).  (Ky. Rev. Stat. Ann. Section 532.080.)

Talk to an Attorney

CDS manufacture or sale convictions incur both heavy fines and long periods of incarceration. A local lawyer who practices CDS defense will review the facts of your case, explain your options, and advise you of the possible consequences.

by: , Contributing Author

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