Possession of LSD: Defenses and Impact of Conviction

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In 1943, an unassuming Swiss pharmaceutical chemist accidentally discovered the psychoactive properties of a chemical he had synthesized while studying fungus. A tiny amount of the synthesized lysergic acid diethylamide or “LSD” absorbed through the chemist’s fingertips. Peddling home from work at the lab that day, the chemist had the most memorable bike ride of his life.

After decades of secret experimentation on the military uses of the drug, the U.S. government outlawed personal use or possession of LSD for any purpose in 1968. Under federal law and the law of all fifty states, LSD possession is a crime.

For more information on state laws dealing with possession of LSD, see Possession of a Controlled Substance and Sale of a Controlled Substance

What is LSD?

LSD is a synthesis of ergot, a plant fungus. Sandoz Laboratories, where the Swiss chemist who discovered LSD worked, had been researching ergot. Sandoz Laboratories was interested in the possible medicinal use of such fungi for the development of pharmaceuticals.

LSD is a liquid and is often sold on blotter paper, sugar cubes, stamps, or other porous material for oral ingestion.

Pharmaceutical and governmental history of LSD experimentation

Sandoz Laboratories conducted LSD experimentation for many years and also sold LSD to the U.S. military, psychiatric hospitals, and other facilities that conducted their own research. Intrigued by the drug’s intense psychoactive properties, the U.S. military dosed subjects with LSD, some without their consent or knowledge, to determine whether it might be used as a “truth serum” in interrogations or for other purposes. The author Ken Kesey volunteered to take part in LSD experiments at a veterans’ hospital where he worked. His experiences inspired his most famous novel, One Flew Over the Cuckoo’s Nest. LSD proved too unpredictable in its effect, and the government abandoned its experiments. However, several studies and prison programs in the U.S., Britain, and other countries showed significant success in the use of LSD to treat alcoholism.

Cultural history of LSD

Well before anyone had ever heard of Cuckoo’s Nest or the Haight-Ashbury, British author Aldous Huxley experimented with LSD and wrote about his experiences. The legal LSD experimentation by Huxley, Kesey and other individuals, including Timothy Leary, led to the introduction of the drug to the general public. In California, aficionados of the drug organized large events and concerts where ingestion of LSD was wide-spread. The drug’s effect on art, culture, and especially music, is a matter of public record. The drug remained legal in the U.S. until 1968.

Criminalization of LSD

The experimentation by Kesey, Leary, and others spurred public interest, which led to a barrage of negative publicity in the late 1960’s, and a government crackdown shortly thereafter. In 1968, the U.S. made possession of LSD for recreational use a crime. In 1970, the U.S. Congress passed what is now known as the Controlled Substances Act. (12 U.S.C. § 801.) Under that law, LSD is a “Schedule I” (most severely restricted) drug. Schedule I drugs are those that the government has deemed dangerous and without accepted medical use. (21 U.S.C. § 812.) As a Schedule I drug, possession, manufacture, and distribution of any amount of LSD for any purpose is illegal in the U.S. (21 USC § 802 (9).)

What is “Possession”?

“Possession,” in its common use, means having, owning, or controlling a thing. However, U.S. drug law gives the word a broader meaning.

“Simple” possession

A person who knowingly has a small amount (up to nine grams) of LSD on his or her person (for example, in a pocket) or under his or her personal, physical control (for example, in a messenger bag or purse) could be charged with simple possession of LSD under the law. “Knowingly” is defined as awareness by the person with the LSD that he or she had the drug on them and that it was illegal.

Possession is not limited to simple, obvious physical control when it comes to illegal drugs such as LSD.

“Constructive possession”

U.S. law also prohibits “constructive possession” of LSD and other controlled substances. “Constructive,” as used in federal drug statutes, means implied, inferred, or as interpreted by the law. That means when the law deems that a person has legal control over LSD, he or she is said to have constructive possession of the drug. Constructive possession is much broader than actual physical control and includes many situations, not all of which are obvious.

There are many other examples of constructive possession of drugs resulting in convictions. For more information on constructive possession, see Heroin Possession: Charges, Penalties, and Defense.

Common Defenses to LSD Possession

There are several defenses available to a person charged with simple and constructive possession of LSD. Here are a few of them.

Lack of knowledge

If the driver in the example above had been simply walking beside the woman, unaware that she carried LSD in her purse, and if he had not given her his wallet to carry, he would have been acquitted of a charge of constructive possession.

Lack of power and intent to control

Possession of LSD alone will not result in conviction unless the prosecutor can prove that the defendant intended to control the drug. A defendant who establishes a lack of power or intent to control LSD may be acquitted. For example, if the driver had placed a blotter of LSD in his wallet and ordered his girlfriend to carry the wallet in her purse with threats of violence if she resisted, she could claim lack of power or intent to control the LSD.

How is LSD Possession Punished?

Under federal law, a first offense of possession of one to nine grams of LSD carries a potential penalty of not more than one year in prison, a fine of not less than $1,000, or both. (21 U.S.C. § 844 (a).) A second conviction of possession of one to nine grams of LSD carries a potential penalty of not more than 2 years in prison, a fine of not less than $2,500, or both. The penalty increases in both possible prison term and fine for subsequent offenses.

The penalty for possession of more than nine grams of LSD may be treated as possession with intent to traffic; the potential penalty increases to five to 40 years in prison, a fine of up to $2 million, or both.

In addition, a person convicted of LSD possession may be barred from working in certain fields, such as education, the entire health care profession, or where a security clearance or background check is required. Many employers now routinely run background checks on job applicants and a conviction of possession of a Schedule I drug will likely prevent hire. Conviction of drug possession may also affect a person’s immigration status, or even lead to deportation. Where a landlord or bank requires a background check for home rental or purchase, a drug possession conviction may lead to rejection.

See a Lawyer

Possession of LSD is a very serious crime. If you have been charged with possession of LSD, consult with a criminal defense lawyer experienced with the law in your state (or, if the case is in federal court, an experienced federal practitioner) immediately. Only a lawyer familiar with the applicable law will be able to advise you about your rights and the availability of any defenses.

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