Possession of a Controlled Substance in Oklahoma

Illegal possession of a controlled substance can result in misdemeanor or felony drug charges in Oklahoma. This article reviews Oklahoma's drug classifications and penalties for illegal possession for personal use. Harsher penalties apply when the amount of drugs involved becomes a trafficking offense.

How Oklahoma Classifies Controlled Substances

Oklahoma divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, marijuana, and psilocybin.

Schedule II includes drugs such as opium, codeine, morphine, oxycodone, cocaine, fentanyl, and meth.

Schedule III includes drugs such as GHB, ketamine, and buprenorphine.

Schedule IV includes drugs such as barbital, diazepam (Valium), and lorazepam (Ativan).

Schedule V drugs include cough suppressants and other therapeutic medicines containing low doses of codeine or other narcotics.

(Okla. Stat. tit. 63 §§ 2-204, -206, -208, -210, -212 (2024).)

How Oklahoma Punishes Drug Possession Crimes

Except for marijuana, Oklahoma law punishes all drug possession crimes the same, regardless of the type of drug involved. The law imposes increasing penalties based on a person's prior drug possession convictions. A first, second, and third conviction within 10 years is a misdemeanor. A fourth offense goes up to a felony. (Possession of large amounts of drugs constitutes trafficking, which carries much harsher penalties.)

First Drug Possession Offense or Any Marijuana Possession Crime

A person convicted of marijuana possession or a first offense for drug possession commits a misdemeanor, punishable by up to a year of jail time and a $1,000 fine.

For a first drug offense, a judge may hold off on entering a guilty plea or verdict and, instead, conditionally release the defendant on probation. If the defendant successfully completes probation, the judge will dismiss the charges. This opportunity to avoid a conviction is a one-time deal.

Second Drug Possession Offense

A second drug possession conviction also carries misdemeanor penalties with a possible year of jail time and a $1,000 fine. For a second possession conviction, the judge may place the defendant in a year-long diversion program in lieu of jail time. Diversion may include a substance abuse assessment and evaluation and drug testing.

Third Drug Possession Offense

A minimum 30-day jail sentence applies to anyone convicted of a third drug possession offense (also a misdemeanor). A judge may permit the defendant to participate in a three-year diversion program instead of additional jail time.

Fourth Drug Possession Offense

A fourth drug possession offense in 10 years increases to a felony, punishable by one to five years in prison and a $5,000 fine. The court may defer proceedings in a felony drug possession case and place the defendant in diversion for up to three years. Upon successful completion, the judge must reduce the felony charges to a misdemeanor and enter the conviction as a misdemeanor.

Possession of Drug Paraphernalia

Misdemeanor penalties also apply to knowing possession of drug paraphernalia used to introduce drugs into the body. A misdemeanor carries up to a year of jail time. The fines for a misdemeanor increase if the person has prior convictions for possession of drug paraphernalia. A first offense has a maximum $1,000 fine, a second offense has a maximum $5,000 fine, and subsequent offenses can go up to $10,000 in fines.

(Okla. Stat. tit. 63, §§ 2-402, 2-405, 2-410 (2024).)

How Oklahoma Classifies and Punishes Drug Trafficking Offenses

The possession crimes described above involve small amounts of drugs for personal use. Harsher penalties apply when a person possesses "large" quantities of a drug. What is considered a large amount depends on the type of drug.

For example, felony trafficking penalties apply to possession of:

• 25 pounds or more of marijuana
• 28 grams or more of cocaine
• 10 grams or more of heroin or MDMA
• 20 grams or more of meth or PCP
• 1 gram or more of LSD, fentanyl, or carfentanil, and
• 400 grams or more of oxycodone.

Trafficking penalties start as 20-year felonies with fines ranging from $20,000 to $500,000.

(Okla. Stat. tit. 63, § 2-415 (2024).)

Common Defenses to Drug Possession Charges in Oklahoma

In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. A prosecutor must prove every element of the crime beyond a reasonable doubt. Poking holes in the case can lead to an acquittal, dropped charges, or a reduction in the charges.

Lack of Knowledge or Possession

Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs. If the prosecution can't prove the defendant knowingly possessed the drug, this may lead a jury to acquit. This might be a defense in situations where a defendant claims the drugs belonged to someone else or didn't know that the substance was an illegal drug.

Illegal Search or Seizure

Another common defense strategy in drug possession cases is to challenge the legality of the search that led to finding the drugs. If police conducted an illegal search, the evidence (the drugs) typically must be excluded. Without evidence of the drugs, the prosecution's case might fall apart.

Immunity From Arrest

Oklahoma law provides immunity (protection) from arrest when a person seeks emergency help for another person suffering from a drug overdose. Immunity applies only to certain drug charges, including drug possession (not trafficking) and possession of drug paraphernalia. To qualify, the person must remain on the scene and cooperate with authorities.

(Okla. Stat. tit. 63, § 2-413.1 (2024).)

Talk to an Attorney

If you are charged with drug possession, contact a local criminal defense attorney. Possession charges might seem minor, but a criminal record of drug charges can hurt a person's chances of getting a job or housing. It can also lead to harsher charges in future cases.