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 controlled substance laws by state.

What Are Controlled Substances?

The federal government lists the various types of drugs it considers 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—divides controlled substances into 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. (21 U.S.C. §§ 801 and following.)

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 legal justification or permission. These charges usually apply when a person is found carrying marijuana, cocaine, methamphetamine, or other narcotics.

To convict someone of illegal possession of a controlled substance, the prosecutor must prove the defendant knowingly possessed the drug.

Knowing

The crime of possessing a controlled substance occurs whenever a person knowingly or intentionally has control of a drug. However, the prosecution doesn't have to show that the accused knew that the drugs were controlled or that possession in this circumstance was illegal. Prosecutors only need to prove 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 a person has it in a pocket or otherwise in personal custody (actual possession), or the person has control over and access to the drug, such as by having the drugs in a car's glove compartment, a bag, or hidden in the home (constructive 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 could 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, for example, by proving 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 intent to distribute—a much more serious charge than simple possession. Intent to distribute charges can be based on the amount of drugs possessed—generally when the amount is too large for personal use. Other evidence tending to show intent to distribute drugs includes having large stashes of cash, packaging materials, or customer lists.

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 might 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.

For more discussion on police searches of cars, see When Can Police Search My Car?.

Penalties

Drug possession charges are subject to an incredibly broad range of penalties, depending on the state in which the crime occurs or if federal charges are involved. 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. Penalties for possession of Schedule I drugs are the most severe and Schedule V the least severe.

  • 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 (such as drug treatment). 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 court can revoke probation and order the defendant to serve the jail or prison sentence.
  • Diversion. Diversion programs are similar to probation and 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, which requires the offender to comply with specific terms for a period of time, often six 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.

Speak to an Attorney

If you're facing a drug possession charge, contact an experienced criminal defense lawyer. Possession charges often involve significant issues about whether the police acted legally when they found the controlled substance. An experienced attorney can advise you on your rights and the potential consequences of the charges against you. Even if the potential penalties for possession are not significant, a criminal record sticks with you and can affect your ability to get a job, housing, or occupational license.

Selected State Possession-of-a-Controlled-Substance Laws

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