Heroin Possession: Charges, Penalties, and Defenses

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

Heroin was first synthesized from the opium poppy in the late 19th century, and the drug maker Bayer later marketed heroin as a pain reliever and cough suppressant. In 1914, the United States enacted the first law placing restrictions on heroin use and distribution. Now, under federal law and the laws of all fifty states, heroin possession (any amount) is a crime.

For more information on state laws dealing with heroin possession, see Drug Laws & Drug Charges.

Heroin: Schedule I Controlled Substance

Heroin, morphine, and opium are all 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—it has a high potential for abuse and no currently accepted medical use. Possession, manufacture, and distribution of any amount of heroin for any purpose is illegal in the United States. Other types of opiates, like morphine, are classified as Schedule II drugs. Schedule II drugs have a high potential for abuse, but because they have a currently accepted medical use, they can be distributed and possessed with a valid prescription. (21 U.S.C. §§ 802, 812.)

Possession of a Controlled Substance

Federal law prohibits possession of heroin. To secure a conviction, the prosecutor must prove the defendant knowingly possessed the illegal substance.

Knowing Possession

The prosecutor must show that the defendant had knowledge of the drugs under the person's control. Say, for example, a person accidentally grabs someone else's gym bag that looks identical to their own. The gym bag contains drugs, and the person ends up getting arrested for drug possession. 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 and Constructive Possession

Possession refers to physical control over an item (actual possession), as well as legal control over an item (constructive possession). Having physical custody of a drug (say in a coat pocket) is actual possession. Constructive possession, on the other hand, is much broader and includes situations where the defendant is in a position to exercise dominion (ownership) and 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. Even though the drugs were in the bag and not on his person, the individual had legal control over, and access to, the bag and the drugs.

Courts have also upheld constructive possession convictions where narcotics were found in a:

  • home, vehicle, business, or other property owned or rented by the individual
  • glove compartment or trunk of a vehicle being driven by or occupied by the individual
  • hotel room in which the individual was a guest
  • social club managed by the individual
  • warehouse used by the individual, and
  • parcel addressed to the individual.

A defendant's close association with another person who possesses heroin can sometimes be enough to establish constructive possession by the defendant. For example, an individual driving a car could be charged with constructive possession for heroin found in a passenger’s purse.

Common Defenses to Heroin Possession

Here are a few of the defenses available to a person charged with possession of heroin.

Lack of Knowledge

In the example of the person who took the wrong gym bag, if charged, he will be acquitted if he can convince the jury that he genuinely and reasonably had no knowledge that the bag contained heroin. However, the circumstances of how he came into possession of the heroin will be pivotal to his ability to succeed on the lack of knowledge defense. His explanation might be less credible if it turns out the bag he accidentally grabbed belonged to his good friend, a drug dealer.

Lack of Intent to Control

A prosecutor must prove that the defendant intended to control the heroin even if it wasn’t in his actual physical possession in order to establish constructive possession. A defendant who can show that he had no power or intent to control the drug may be acquitted. For example, a hitchhiker who accepts a ride with someone who, after picking up the hitchhiker, stops off at a corner and buys a bag of heroin lacks power and intent to control the heroin placed in his vicinity. Even though the hitchhiker was aware of the presence of heroin in the car, he never intended to come into possession of it, had no power or control over it, and indeed might have faced dire consequences if he tried to take possession of it.

Penalties for Heroin Possession

Possession of heroin is both a federal and a state offense.

Federal Offenses

When heroin possession is charged as a federal offense in federal court, a person who is convicted of a first offense of heroin possession and has no prior convictions of possession of any narcotics may be sentenced to not more than one year in prison, fined not less than $1,000, or both.

A person convicted of heroin possession after a prior conviction of possession of that or any other narcotic in either federal or state court may be sentenced to not less than 15 days and not more than two years in prison, fined not less than $2,500, or both. Two or more prior convictions of possession of any narcotic in federal or state court may lead to a sentence of not less than 90 days in prison, a fine of not less than $5,000, or both. (21 U.S.C. § 844.)

The term of imprisonment and the amount of the fine may be affected by the quantity of the drug seized. A charge of possession with intent to distribute (sell) heroin greatly increases the penalties. (21 U.S.C. § 844.)

State Offenses

States also punish the possession of heroin, and the sentence will vary according to state law. For information on your state's punishment scheme for possession of illegal drugs, see Drug Possession Laws by State at Drug Laws & Drug Charges.

See a Lawyer

Heroin possession is a serious crime. If you have been investigated for or charged with the crime, you should speak to a criminal defense lawyer immediately. An experienced criminal defense lawyer who is familiar with the law in your state (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you as to the strength of the case against you and the availability of any defenses. A local lawyer who knows the prosecutors and judges in your courthouse can give you a realistic assessment on how the case is likely to proceed.

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