Illegal drug possession can mean jail time and mandatory fines in New Hampshire. Read on to learn how New Hampshire classifies and penalizes drug possession offenses.
For most controlled substances, New Hampshire follows the federal drug schedules, which are divided 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 examples of drugs placed into each schedule.
Schedule III includes drugs such as buprenorphine, ketamine, and anabolic steroids.
Schedule IV includes drugs such as barbital, diazepam (Valium), and lorazepam (Ativan).
Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.
In most instances, yes. New Hampshire makes it a felony to illegally possess any controlled substance, except marijuana. Penalties vary based on the type of drug and whether the defendant has prior convictions.
A person commits a class B felony for illegally possessing a Schedule I, II, III, or IV drug (except marijuana). Second and subsequent convictions carry class A felony penalties.
Class B felony penalties carry a maximum sentence of seven years in prison and a $25,000 fine. For a class A felony conviction, a defendant faces up to 15 years in prison and a $50,000 fine. Drug possession convictions also carry minimum fines of $350 for a first offense and $500 for repeat offenses.
A first conviction for illegal possession of a Schedule V drug carries a maximum three-year prison sentence and a $15,000 fine. The minimum fine is $350. Subsequent convictions are punishable as class B felonies, which carry a maximum sentence of seven years' incarceration and a $25,000 fine. The minimum fine is $500.
A person who possesses ¾ ounce or less of marijuana or five grams or less of hashish commits a violation for a first, second, or third offense. These violations carry fines of $100 for a first or second offense and $300 for a third offense. A fourth or subsequent offense committed within three years is a class B misdemeanor, punishable by a maximum fine of $1,200.
Possession of more than ¾ ounces of marijuana or more than five grams of hashish is a class A misdemeanor, punishable by up to one year in jail and a $2,000 fine. The person must pay the minimum fine of $350.
A judge may sentence a defendant who possessed a controlled substance while on school property or a school bus to an extended term. For a felony, an extended term carries a minimum 10-year sentence and a maximum of 30 years. The extended term for a misdemeanor is two to five years' imprisonment.
(N.H. Rev. Stat. §§ 318-B:26, 651:2, 651:6 (2023).)
New Hampshire offers several alternatives to incarceration in its sentencing laws.
A judge may sentence a person to unconditional or conditional discharge rather than imprisonment.
A person placed on conditional discharge must abide by terms set by the court, such as attending counseling or treatment or completing community service. Felony conditional discharge generally lasts up to three years. For a misdemeanor, the term is generally a year.
A judge may order unconditional discharge in cases where no imprisonment, conditions, or supervision is needed.
A judge may order probation for defendants who need some form of supervision or guidance. Felony probation can last up to five years and misdemeanor probation can last up to two years. Probation generally allows a defendant to serve all or part of their incarceration sentence in the community, as long as they remain law abiding and abide by their probation conditions. In some instances, the court may order a short jail sentence as a probation condition.
Some district courts offer drug treatment courts that provide intensive supervision to defendants with substance abuse diagnoses. Drug courts are generally run by a team of professionals, including a judge, prosecutor, defense attorney, probation, and treatment provider. A defendant will face intensive supervision, as well as incentives and sanctions throughout the program.
(N.H. Rev. Stat. § 651:2 (2023).)
Defendants facing controlled substance charges have several defense strategies available to them.
Actual innocence. Defendants charged with a drug-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."
Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance 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.
Unlawful search and seizure. A common defense 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.
Overdose prevention and immunity. New Hampshire offers immunity from drug possession charges for Good Samaritans who seek medical assistance for another person experiencing a drug overdose. This protection also extends to a person who seeks help for their own overdose. (N.H. Rev. Stat. § 318-B:28-B (2023).)
If you've been charged with a drug-related offense in New Hampshire, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.