Drug possession charges carry serious consequences from time in jail or prison to loss of a job. Learn how Indiana classifies and penalizes drug possession crimes.
All states (and the federal government) regulate and control the possession of controlled substances, though each differs in its exact definition and penalties. Indiana considers not only well-known drugs like marijuana, heroin, and cocaine to be controlled substances but also the compounds used to manufacture them. Some controlled substances, like codeine, may be legally possessed with a valid prescription.
This article concerns the unlawful possession of controlled substances. Separate punishments apply for persons who illegally sell, manufacture, or possess with intent to sell a controlled substance. Check out our article on Sale or Delivery of a Controlled Substance in Indiana.
Classification of Controlled Substances in Indiana
Indiana divides its controlled substances into five "schedules" based on factors such as their medicinal uses and potential for abuse. Schedule I drugs have the highest potential for abuse and no accepted medical use, and Schedule V drugs have accepted medical uses and the lowest potential for abuse. Drug schedules change frequently. You can find information and links for drug schedules on Indiana's Department of Health website.
(Ind. Code §§ 35-48-2-4, -6, -8, -10, -12 (2020).)
Penalties for Controlled Substances Possession Crimes in Indiana
A person convicted of possession of a controlled substance faces penalties based on the type and amount of drug possessed, along with whether any enhancing circumstances exist.
Enhancing circumstances include:
- the person has a prior conviction for dealing with (selling) a controlled substance that is not marijuana, hashish, or salvia divinorum
- the person committed the offense while in possession of a firearm
- the person committed the offense on a school bus, in the presence of a child, or in a correctional facility
- the person committed the offense within 500 feet of school property or a public park or within 100 feet of a substance abuse rehabilitation facility, or
- the person delivered or financed the delivery of the drug to a minor at least three years younger.
Possession crimes range from a Class B misdemeanor to a Level 3 felony. The penalties by offense level can be found below (Sentences for Felony and Misdemeanor Convictions in Indiana).
Possession of Cocaine, Schedule I or II Narcotics, and Methamphetamine
The unlawful possession of cocaine, Schedule I or II narcotics, and methamphetamine can be punished as a Level 3, 4, 5, or 6 felony.
Level 3 felony. Possession is a Level 3 felony if the amount of the drug involved was 28 grams or more.
Level 4 felony. Possession is a Level 4 felony if the amount of the drug involved was less at least ten grams but less than 28 grams. (Increases to a Level 3 felony if an enhancing circumstance involved.)
Level 5 felony. Possession is a Level 5 felony if the amount of drug involved was five grams or more but less than ten grams. (Increases to a Level 4 felony if an enhancing circumstance involved.)
Level 6 felony. Possession is a Level 6 felony if the amount was less than five grams. (Increases to a Level 5 felony if an enhancing circumstance involved.)
(Ind. Code §§ 35-48-1-16.5, 4-6, 4-6.1 (2020).)
Possession of Other Schedule I to V Controlled Substances
The unlawful possession of other controlled substances in Schedules I to V (not listed above and not including marijuana, hashish, hash oil, and saliva) is either a Class A misdemeanor or a Level 6 felony.
Class A misdemeanor. The intentional possession of a Schedule I, II, III, or IV controlled substance (those not listed above and not including marijuana, hashish, and saliva) is a Class A misdemeanor. It's also a Class A misdemeanor to unlawfully possess a Schedule V controlled substance without a valid prescription or by means of misrepresentation.
Level 6 felony. A Class A misdemeanor bumps up to a Level 6 felony if any enhancing circumstances apply.
(Ind. Code § 35-48-4-7 (2020).)
Possession of Marijuana, Hash Oil, Hashish, or Salvia
The possession of marijuana, hash oil, hashish, or saliva carries misdemeanor and felony penalties.
Level 6 felony. A Level 6 felony applies if a person has a prior drug conviction and possesses:
- 30 grams or more of marijuana, or
- five grams or more of hash oil, hashish, or salvia.
Class A misdemeanor. A person can be convicted of a Class A misdemeanor if possession involves an amount less than described above and:
- the person has a prior drug conviction, or
- the person knew or should have known that, despite labeling indicating the substance contained a low THC hemp extract, the substance was actually marijuana, hash oil, hashish, or salvia.
Class B misdemeanor. The possession of marijuana, hash oil, hashish, or salvia is a Class B misdemeanor if none of the above factors apply and:
- the person's possession is knowing or intentional
- the person grows or cultivates marijuana, or
- the person fails to destroy marijuana plants that are known to be growing on their property.
First-time offenders. If a defendant pleads guilty to misdemeanor possession of marijuana, hashish, hash oil, or salvia, the court can hold off on entering a conviction and instead place the person on supervision with conditions, such as drug counseling. If the defendant successfully completes the conditions, the court will dismiss the charges. If not, the court may enter the conviction and impose a sentence. A conditional dismissal is a one-time opportunity.
(Ind. Code §§ 35-48-4-11 to -12 (2020).)
Possession of Paraphernalia
The possession of drug-related paraphernalia is illegal. Drug paraphernalia includes an instrument, device, or other object used primarily to introduce a controlled substance into the body, test its strength, effectiveness, or purity, or enhance its effect. (Rolling papers are not paraphernalia.) A person who knowingly possesses drug paraphernalia for these intended purposes commits a Class C misdemeanor for a first offense and a Class A misdemeanor for a subsequent offense.
(Ind. Code § 35-48-4-8.3 (2020).)
Sentences for Felony and Misdemeanor Convictions in Indiana
Indiana law provides a minimum and maximum incarceration period for felonies, as well as an advisory (or recommended) sentence between these permitted terms. All felonies carry a potential fine of up to $10,000, in addition to incarceration time. Misdemeanors carry a maximum of up to one year in jail.
This list starts at the most severe penalty level for drug possession and ends at the lowest.
Level 3 felony. A Level 3 felony is punishable by a period of incarceration of three to 16 years, with the advisory sentence being nine years.
Level 4 felony. A Level 4 felony is punishable by a period of incarceration of two to 12 years, with the advisory sentence being six years.
Level 5 felony. A Level 5 felony is punishable by a period of incarceration of one to six years, with the advisory sentence being three years.
Level 6 felony; wobbler. A Level 6 felony is punishable by a period of incarceration of six months to two and one-half years, with the advisory sentence being one year. This offense level is sometimes referred to as a wobbler because, under certain circumstances, the court has the option to enter a judgment for a Class A misdemeanor.
Class A misdemeanor. A Class A misdemeanor carries a maximum penalty of one year's jail time and a $5,000 fine.
Class B misdemeanor. A Class B misdemeanor carries a maximum penalty of six months' jail time and a $1,000 fine.
Class C misdemeanor. A Class C misdemeanor carries a maximum penalty of 60 days' jail time and a $500 fine.
(Ind. Code §§ 35-50-2-4 to -7, 35-50-3-2 to -3 (2020).)
Talk to an Attorney
A conviction for the possession of controlled substances (even misdemeanor convictions) can have lifelong consequences. Having a drug conviction on your record can result in enhanced penalties for any future crimes and will make it more difficult to find a job or housing. To be sure you understand the charges you face, the options available to you, and the possible outcomes of your case, you should consult an attorney who specializes in criminal defense of drug crimes.
