Possession of a Controlled Substance in Nebraska

All states, including Nebraska, regulate and control the possession of controlled substances, though each state differs in its exact definitions and the penalties for drug possession. Nebraska also makes it a crime to be under the influence of illegal drugs.

This article reviews Nebraska's classifications of controlled substances and the penalties for illegal possession for personal use. (Sale and manufacturing drug crimes carry harsher penalties.)

How Does Nebraska Classify Controlled Substances?

Nebraska divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, marijuana, and psilocybin.

Schedule II includes drugs such as raw opium, codeine, oxycodone, morphine, cocaine, carfentanil, pentobarbital, and meth.

Schedule III includes drugs such as ketamine, anabolic steroids, and testosterone.

Schedule IV includes drugs such as barbital, diazepam (Valium), flunitrazepam (Rohypnol), and lorazepam (Ativan).

Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotic.

For a complete list of scheduled drugs, consult section 28-405 in the most recent version of the Nebraska Revised Statutes.

(Neb. Rev. Stat. § 28-405 (2023).)

Is Illegal Drug Possession a Felony in Nebraska?

Yes, many drug possession offenses are felonies in Nebraska. For the most part, drug possession crimes carry the same general felony penalty regardless of the type or amount of drug involved (with the exception of marijuana). It's also a crime in Nebraska to be under the influence of illegal drugs or to use drug paraphernalia, although these offenses are misdemeanors and infractions.

Penalties for Illegal Possession of Controlled Substances (Not Marijuana)

Illegal possession of a controlled substance in any schedule (except marijuana) is a Class IV felony. A person convicted of a Class IV felony faces up to two years of prison time, a year of post-release supervision, and a $10,000 fine.

(Neb. Rev. Stat. §§ 28-105, 28-416 (2023).)

Penalties for Being Under the Influence of Illegal Drugs

Nebraska makes it a Class III misdemeanor to be under the influence of a controlled substance unless the person is using the drug as prescribed. A Class III misdemeanor carries a maximum three-month jail sentence and a $500 fine.

(Neb. Rev. Stat. §§ 28-106, 28-417 (2023).)

Penalties for Use of Drug Paraphernalia

Nebraska law makes it an infraction to use or possess with intent to use drug paraphernalia, which includes any equipment used to inject, ingest, inhale, or otherwise introduce the drug into the human body. Infractions are fine-only offenses with maximum fines of $100 for a first offense, $300 for a second offense, and $500 for all subsequent offenses.

(Neb. Rev. Stat. §§ 28-441, 29-436 (2023).)

What Are the Penalties for Illegal Possession of Marijuana in Nebraska?

Penalties for illegal possession of marijuana are based on the amount involved and a defendant's prior offenses.

Possessing One Ounce or Less of Marijuana

A person who possesses one ounce or less of marijuana will receive a citation for the following:

• a first offense is an infraction, punishable by a $300 fine and substance abuse counseling
• a second offense is a Class IV misdemeanor, punishable by a $400 fine and up to five days of jail time, and
• any subsequent offense is a Class IIIA misdemeanor, punishable by a $500 fine and up to seven days of jail time.

For these marijuana crimes, an officer must cite and release the defendant rather than arrest them.

Possessing More Than One Ounce of Marijuana

A person guilty of possessing more than one ounce and up to one pound of marijuana faces a Class III misdemeanor, which carries a three-month jail sentence and a $500 fine. Possessing more than one pound of marijuana is a felony offense, with Class IV felony penalties of up to two years in prison.

(Neb. Rev. Stat. §§ 28-105, 28-106, 28-416 (2023).)

Will You Go to Jail for Illegal Drug Possession in Nebraska?

It's possible, especially with felony-level penalties for many possession crimes. But Nebraska law offers prosecutors and judges several alternatives to incarceration, such as pretrial diversion, deferred entry of judgment, probation, and drug court. On the flip side, Nebraska law imposes severe penalties for certain repeat felony convictions, which can include drug possession offenses.

Pretrial Diversion

The law authorizes prosecutor officers to establish pretrial diversion programs. If offered, it's up to the prosecutor whether to accept the defendant into the program. Diversion generally means that a prosecutor will hold off on filing charges and the defendant must agree to complete all the program conditions, such as attending and completing treatment, remaining law-abiding, and paying a fee.

The prosecutor may dismiss the case upon completing the program or refile charges for a violation. Successfully completing diversion comes with several advantages, including avoiding a criminal court record and having all charges dropped and sealed.

(Neb. Rev. Stat. § 29-3603 (2023).)

Deferred Judgment or Probation

A person with a relatively clean record could receive a deferred judgment or probation sentence and serve little or no jail time.

Deferred judgment. If granted deferred judgment in a case, the court holds off on entering a conviction and, instead, places the defendant on probation. A defendant who successfully completes their probation can have the case dismissed and records sealed. But upon a violation, the judge can impose any sentence that could have originally been set.

Probation. Probation is another alternative to jail time. Here, the judge enters the conviction and imposes a sentence but allows the defendant to serve all or part of their sentence in the community under supervision. As long as a defendant abides by the probation terms, they can avoid most of their jail time.

(Neb. Rev. Stat. §§ 29-2266.01, 29-2266.02, 29-2292 (2023).)

Drug Courts

Certain counties in Nebraska have drug courts that aim to address a defendant's underlying substance abuse issues that led to the criminal charges. Drug courts involve intensive supervision of the defendant by the judge, county attorney, defense attorney, probation, and treatment professionals.

(Neb. Rev. Stat. § 24-1302 (2023).)

Enhanced Penalties for Habitual Felony Offenders

Nebraska has serious habitual felony offender enhancements. A person who has two felony convictions with prison time under their belt can face mandatory prison terms upon a third felony conviction. If the current felony and one prior were non-violent crimes, the mandatory minimum is three years of prison time and up to 20 years.

(Neb. Rev. Stat. § 29-2221 (2023).)

Defenses to Drug Possession Charges in Nebraska

In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. The prosecutor must prove the case beyond a reasonable doubt.

Lack of Knowledge or Possession

Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. If the prosecutor can't prove the defendant possessed the drug or knew what it really was, this may lead a jury to acquit. For example, a defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their gym bag.

Illegal Search or Seizure

Another common defense strategy in drug possession cases is challenging the legality of the search that led to finding the drugs. If police conduct an illegal search, typically, the discovered evidence (the drugs) must be excluded. Without evidence of the drugs, the prosecution's case might fall apart.

Good Samaritan Defense for Drug Overdose

Nebraska offers immunity from drug possession charges and drug paraphernalia charges for persons who call 911 for help with a drug overdose. Immunity applies to the person seeking assistance and the person experiencing the overdose. To fall under these protections, a person who reports the overdose must remain on the scene and cooperate with authorities. (Neb. Rev. Stat. § 28-472 (2023).)

Talk to an Attorney

If you're charged with drug possession, contact a local criminal defense attorney. Many possession crimes carry felony penalties in Nebraska, which carry serious implications even if no prison time results.