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.
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).)
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 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).)
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).)
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:
Class A misdemeanor. A person can be convicted of a Class A misdemeanor if possession involves an amount less than described above and:
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:
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).)
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).)
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).)
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.