Possession of a Controlled Substance: Drug Possession Laws

Learn about the penalties for drug possession and the laws in your state.

Controlled substances are drugs and other materials whose possession and use the federal government has chosen to regulate. Possession of a controlled substance isn't necessarily a crime; for many substances, it's legal to possess and use them when done under certain circumstances, such as under a doctor's supervision or during scientific research. Possession and use become illegal, however, when no legal justification applies; or when the substance (such as heroin) has absolutely no legitimate use.

To learn about controlled substance laws in your state, jump ahead to the section on state controlled substance laws by state.

What Are Controlled Substances?

The federal government lists the various types of drugs that they consider to be "controlled," that is, available (if at all) only through a valid prescription or other legitimate avenue. The federal scheme, contained in the Controlled Substances Act (21 U.S.C.A. Sections 801 and following), lists five "schedules" of drugs, with the most dangerous substances in Schedule I, and the least in Schedule V. This classification applies in federal drug cases, and many states have adopted the federal schedule.

To see the five schedules in the federal law, consult Section 812 of the Controlled Substances Act. For information on how your state classifies drugs, refer to the state-specific article listed below.

What is Illegal Possession of a Controlled Substance?

Illegal possession of a controlled substance occurs whenever a person owns or otherwise possesses a drug or other controlled substance, without justification or permission. These charges usually apply when a person is found carrying marijuana, cocaine, methamphetamine, or other narcotics. It's important to note that some legally available drugs, such as prescription medications, qualify as controlled substances, and possession charges are possible when the person possessing the medication does not have a proper prescription.

To convict someone of illegal possession of a controlled substance, the prosecutor must prove the following "elements" of the crime:

  • Knowing. The crime of possessing a controlled substance occurs whenever a person knowingly and intentionally has control of a controlled drug. However, the prosecution doesn't have to show that the accused knew that the drugs were controlled and that possession in this circumstance was illegal. Prosecutors only have to show that the accused knew the drugs were present and intended to use or control them. Prosecutors can show this from the circumstances of the case, and they do not need to have actual statements from the accused or evidence that the accused actually used the drugs.
  • Possession. Possession means that a person has personal and physical control over the illegal substance. Courts have held that a person can have either actual or constructive possession over the drug. This means that a person actually has it in a pocket or otherwise in personal custody, or that the person has control over the drug, such as by having the drugs in a car's glove compartment, a bag, or hidden in the home.
  • Shared possession. A defendant can be convicted of possessing a controlled substance if the prosecutor can show the accused had at least partial control over the drug. For example, two roommates may each be convicted of possession if they shared an apartment in which the police found marijuana. However, prosecutors must show more than that the two were merely roommates in the same home, by proving, for example, that each defendant had control over the drugs or made incriminating statements about them.

Possession versus Distribution or Sale

Depending on the circumstances, someone charged with possessing an illegal drug might instead end up facing charges of possession with the intent to distribute, a much more serious charge than simple possession. Intent to distribute crimes, commonly referred to as “drug dealing” or sales, are much more serious than simple possession, and are usually based on the amount of drugs a person is found with, the drug's purity, or by other evidence showing the accused intended to sell them and not just use them.

To learn more about the possible consequences for "drug dealing" or sales, please see Sale of a Controlled Substance.

Drugs in Vehicles

Many possession cases arise from interactions between motorists and the police. In these situations, it's common for the police to find drugs in the car and charge the driver with possession. The police may also be able to charge the driver with possession if passengers are found with drugs on their person, or vice versa. However, even when the prosecutor can show that there were drugs in the car, the prosecutor must prove that the driver or passengers knew the drugs were there, or that they were near the driver or in plain view. Often, circumstantial evidence supplies this proof, which also shows that more than one person possessed the drugs.

Penalties

Drug possession charges are subject to an incredibly broad range of penalties, depending on the state in which the crime occurs. The severity of the penalty depends upon a number of factors, such as the specific type of drug involved, the circumstances surrounding the possession, and the criminal history of the person possessing the drugs.

  • Fines. Many drug possession convictions result in fines. These can range from very minor fines of $100 or less, to significant fines of $100,000 or more.
  • Incarceration. Jail or prison time is also possible when a person is convicted of possession of a controlled substance. Jail sentences range widely depending on the crime charged, the type of drugs involved, and the state's laws, but can range from a few days or weeks to 10 years or more in prison.
  • Probation. Probation sentences are often given in drug possession cases, and may be included with other punishments such as jail time, fines, or rehabilitation. A sentence of probation requires the convicted person to regularly check in with a probation officer and to comply with specific terms, such as not using any more drugs. If the offender fails to comply with the probation terms, a jail sentence will usually apply.
  • Diversion. Diversion programs are similar to probation, and are often used in first-offender drug possession cases. With diversion, a prosecutor allows a drug offender to enter into a counseling and behavior modification program, very similar to probation, which requires the offender to comply with specific terms for a period of 6 months or more. Once the offender completes the diversion program, the prosecutor agrees to drop the drug charges. If the offender fails to comply with the diversion terms, the prosecutor will pursue the possession charges.
  • Rehabilitation. Many states allow courts to sentence a drug offender to a period of rehabilitation or drug treatment program instead of a jail sentence. Attending rehabilitation is also sometimes required in probation sentences.

Legal Advice

Drug possession charges, especially for the possession of marijuana, are often viewed as “no big deal.” Even if the potential penalties for possession are not significant, anyone facing a possession charge should not rely on rumors or advice offered by friends or relatives. Only a qualified criminal defense lawyer with experience dealing with the local police, prosecutors, and court system can give you advice about your possession case. Not only that, but possession charges often involve significant issues about whether the police acted legally when they found the controlled substance, something only an experienced attorney will know how to properly analyze. (Improper searches and seizures can be challenged in court and result in having the evidence thrown out.) It's always in your best interests to talk to a lawyer as soon as you are investigated for or charged with possession of a controlled substance.

Selected State Possession of a Controlled Substance Laws

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