Heroin Possession: Charges, Penalties, and Defenses

Possession of heroin, in any amount, is a crime.

By , Attorney · University of Houston Law Center
Updated June 15, 2022

Both state and federal laws make it illegal to possess heroin in any amount. The legal consequences of breaking these laws can be quite significant. This article examines the definition of heroin, as well as the penalties and possible defenses for possession offenses.

(For information on penalties for selling or possessing with intent to sell drugs, check out Sale of a Controlled Substances: Drug Sale Laws.)

What Is Heroin? How Is Heroin Classified on the Drug Schedule?

Heroin, morphine, and opium all constitute derivatives of the opium poppy. All three are controlled substances under federal law but regulated differently. The federal Controlled Substances Act ranks drugs from Schedule I to V—placing the most dangerous drugs in Schedule I and the least dangerous in Schedule V.

Heroin is a Schedule I drug because of its high potential for abuse and no currently accepted medical uses. Both federal and state laws make the possession, manufacture, and distribution of any amount of heroin for any purpose illegal throughout the United States. Other types of opiates, like morphine, have a Schedule II drug classification because, although they have a high potential for abuse, they also carry currently accepted medical uses and can be obtained with a valid prescription.

Illegal Possession of Heroin

In drug possession cases, the prosecutor must prove the defendant knowingly possessed the illegal substance. Possession can be "actual" or "constructive." Let's examine the meaning of possession in this context.

Knowing Possession of the Drug

First, the prosecutor must show that the defendant had knowledge of the drugs under their control. Say, for example, a person accidentally grabs someone else's gym bag that looks identical to their own. That bag contained drugs, resulting in the person's arrest. Unless other circumstances suggest the situation wasn't an accident, the prosecutor wouldn't have a case because the person had no knowledge of possessing the drugs.

Actual or Constructive Possession of the Drug

Second, the prosecutor needs to show the defendant's actual or constructive possession of the drugs. Possession refers to physical control over an item (actual possession), as well as legal control over an item (constructive possession).

Actual possession is just as it sounds—having physical custody of a drug (say in a coat or pants pocket).

Constructive possession, on the other hand, is broader and includes situations where the defendant's in a position to exercise dominion (ownership), access, or control over the drug. For instance, an individual who checks a suitcase at the airport that is discovered by customs agents as containing heroin could be arrested and charged with constructive possession of narcotics. Sometimes, a defendant's close association with another person who possesses heroin can be enough to establish the defendant's constructive possession. For example, an individual driving a car could be charged with constructive possession of heroin found in a passenger's purse.

What Are the Penalties for Heroin Possession?

Possession of heroin is both a federal and a state offense. A person could face federal charges if caught with the drugs on federal land or property, in the airport, or while crossing state lines. Other circumstances will generally result in state criminal charges.

Federal Penalties for Illegal Possession of Heroin

When federal prosecutors charge heroin possession in federal court, a guilty defendant with no prior drug-related convictions faces up to a year in prison and a fine of at least $1,000 for a first offense. A person convicted of heroin possession after a prior narcotics conviction in either federal or state court is subject to 15 days to two years in prison and a minimum fine of $2,500. Two or more prior narcotic convictions can lead to a sentence of 90 days to three years' imprisonment and a fine of at least $5,000.

The term of imprisonment and the amount of the fine may be affected by the quantity of the drug seized. Having possession of a large amount of heroin, along with other indicators, may support tougher charges and penalties for possession with intent to sell. And that penalty can increase even further depending on to whom the defendant sells the illegal narcotic. For instance, a dealer who attempts to sell heroin to someone younger than 21 years old for the first time is subject to twice the maximum punishment as that of simple possession. Penalties continue to increase for subsequent illegal sales.

State Penalties for Illegal Possession of Heroin

States also punish the possession of heroin, and the penalties vary by state. The severity of the penalty is determined by whether the prosecutor charges the defendant with a felony or a misdemeanor. This charging decision is based on the amount of heroin, the defendant's prior record, and the circumstances surrounding the offense.

In California, for example, the first offense for simple possession of heroin constitutes a misdemeanor, punishable by up to one year in jail and a $1,000 fine. However, if the defendant has a prior criminal record that includes an aggravated felony or is a registered sex offender, even simple possession cases can be charged as felonies, resulting in up to four years in prison. Possession with intent to sell raises the severity to a felony, and upon conviction, can result in a minimum sentence of two years in prison and a substantial fine.

In the state of Texas, a defendant who possesses any amount of heroin faces a felony charge. A small amount (less than one gram) subjects the defendant to a state jail felony conviction, resulting in 180 days to two years' incarceration and a $10,000 fine, while a massive amount (400 or more grams) carries life in prison.

Penalties for Possession of Heroin Paraphernalia

Along with heroin possession charges, possession of drug paraphernalia charges are one of the more commonly charged crimes in any jurisdiction. Almost anything can be considered drug paraphernalia, but items such as bottle tops, bowls and pipes, cut-up straws, spoons, and needles are commonly associated with this crime.

Prosecutors prove the crime of possession of heroin paraphernalia in a similar manner as possession itself. They must show the defendant knew of their possession and used or intended to use the item for an illicit purpose. The majority of paraphernalia cases result in misdemeanor charges. These situations involve a defendant possessing the item for personal use. Harsher penalties apply when the defendant possesses the paraphernalia with the intent of selling or giving it to others.

Misdemeanor convictions usually result in 90 days (sometimes even less) to one year in jail, while felony convictions can land a defendant in prison for years. Under federal law, the maximum sentence a defendant can receive for selling drug paraphernalia is three years, in addition to a fine.

Common Defenses to Heroin Possession Charges

Defendants facing heroin charges under state or federal law have several defense strategies available to them.

Actual Innocence

Defendants charged with a heroin-related crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "The alleged conduct did not occur."

Unlawful Search and Seizure

A common defense strategy in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Lack of Knowledge

Defendants can also try to show the jury that they did not have knowledge of the drug being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Lack of Intent to Control

A conviction for possession requires the prosecutor to prove that the defendant had the intent to control the heroin even if it wasn't in their actual possession. A defendant who can show they had no power or intent to control the drug may be acquitted. For instance, if after picking up the hitchhiker, the driver stops off at a corner and buys a bag of heroin, the hitchhiker, although aware of the presence of the drug, never intended to come into possession of it and had no power or control over it.

Talk to a Lawyer

If you're facing a charge for possession of heroin or another drug-related offense, contact an experienced criminal defense attorney in your area as soon as possible. A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses that might apply to the unique circumstances of your case.

(Cal. Health & Safety Code §§ 11350, 11351; Tex. Health & Safety Code § 481.115; 21 U.S.C. §§ 802, 812, 844, 859, 863 (2022).)

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