Possessing “illegal drugs” may be charged as a misdemeanor or a felony, a more serious charge. The prosecutor’s choice will depend on the type of drug involved (sometimes, possessing a certain type of drug will automatically lead to felony charges). The circumstances of the crime will also play a part—when “aggravating circumstances” are present (such as possessing illegal drugs on school grounds), a felony charge is likely.
This article explains the circumstances under which someone arrested for drug possession might end up being charged with a felony instead of a misdemeanor. Most states consider some or all the factors described below in charging and punishing illegal drug possession violations. If you would like to skip directly to the laws in your state, scroll down to the “Drug Possession Laws by State” section, and click the link to your state.
For more information on possession of illegal drugs in general, see Possession of a Controlled Substance: Drug Possession Laws.
Factor #1: The Type and Amount of the Drug
Felony charges for drug possession often result when a defendant has possessed a particular illegal substance, or any illegal possession of a certain quantity of specified drugs. For example, in most states, possessing any amount of herion (a Schedule I substance) is a felony.
In many situations, the quantity of the drug in the defendant’s possession will also result in felony rather than misdemeanor charges. For instance, in Kentucky, possessing specified amounts of Schedule I or II narcotic substances is a felony, while possessing non-narcotic Schedule I and II substances will incur a misdemeanor charge.
Factor #2: Possession for Personal Use or With Intent to Sell?
Possessing drugs for personal use usually incurs less severe charges than possession with the intent to sell. The difference in punishment reflects legislators' view of the harm caused by each crime: Those who use drugs are the victims of those who sell them. A user harms only himself; a seller harms many.
However, possession is nonetheless a crime, and even mere possession of small amounts can be charged as a felony in states that have strict drug possession laws. And in those that are more tolerant, when very dangerous drugs are involved, such as heroin or cocaine, felony charges are likely.
Additionally, in many states, if you are caught with large quantities of illegal drugs, you are more likely to be charged with illegal drug possession with the intent to sell, since it is unlikely that you intended to use the entire quantity for yourself. Because illegal drug sales is a more serious crime, possession with the intent to sell is almost always a felony.
Factor #3: Various Aggravating Circumstances
In many states, prosecutors may charge a defendant with a felony if the violation involved one or more “aggravating circumstances” or “aggravating factors," even if the drug possession in question would otherwise have been a misdemeanor. The choice of these factors reflects legislators’ feelings that crimes occurring under these circumstances are potentially much more harmful—such as when drugs are sold to or around children— than when these factors do not exist.
Each state’s aggravating factors are enumerated (listed) in the state’s drug possession laws. These lists often include (but are not limited to) several or all of the following types of possession:
- by repeat offenders (people who have prior drug convictions
- on or near a school, on a school bus, or at a school bus stop
- on or near certain public buildings, parks, swimming pools, housing units, or on public transportation
- on or near drug treatment facility property, and
- in the presence of a minor (usually defined as someone younger than 18 years old).
State Drug Possession Laws
For information on your state’s drug possession laws, follow the links below.
Getting Legal Help
If you are charged with possession of illegal drugs and are facing felony criminal charges , it is very important that you contact an attorney who can help defend your case. The attorney will be able to evaluate the strength of the evidence against you, assess any possible defenses, advise you on any possibilities for reduced charges, and help you prepare to negotiate a plea bargain or go to trial.