Possessing "illegal drugs" may be charged as a misdemeanor or a felony. The prosecutor's decision often depends on the type and amount of drug involved. Other circumstances of the crime will also play a part. For instance, when "aggravating circumstances" are present (such as possessing illegal drugs on school grounds), a felony charge is likely.
This article explains the circumstances under which someone arrested for illegal drug possession might end up with felony charges instead of a misdemeanor charge. Most states consider some or all the factors described below in charging and punishing illegal drug possession violations, although every state's drug laws and penalties are different.
For more information on possession of illegal drugs in general, see Possession of a Controlled Substance: Drug Possession Laws.
A person might face felony drug possession charges when the type of drug is especially dangerous, the amount suggests more than possession for personal use, the offense occurred near vulnerable persons or areas, or it's a repeat offense.
Felony charges for drug possession often result when a defendant possesses a particular illegal substance or a certain quantity of specified drugs. For example, in many states, possessing any amount of heroin (a Schedule I substance) is a felony. LSD is another drug that several states classify as a felony for possessing even a small amount. In many situations, the quantity of the drug in the defendant's possession will also result in felony rather than misdemeanor charges. For instance, New York penalizes possession of less than 1 mg of LSD as a misdemeanor but any amount over that is a felony.
Possessing drugs for personal use usually incurs less severe charges than possession with the intent to sell. The difference in punishment reflects legislators' view of the harm caused by each crime: A user harms oneself, but a seller harms many.
In most states, being caught with large quantities of illegal drugs makes you more likely to be charged with possession with intent to sell. The more drugs you possess, the more likely it's not all for you. To prove intent, the prosecutor usually relies on circumstantial evidence suggesting the drugs are for sale, such as finding large amounts of drugs near baggies, scales, cash, and customer ledgers.
Possession with intent to sell is considered a sale crime and takes it out of the possession category. Drug sale crimes—including intent to sell—are generally felonies.
In many states, prosecutors may charge a defendant with a felony if the violation involved one or more "aggravating circumstances" or "aggravating factors," even if the drug possession in question would otherwise have been a misdemeanor. The choice of these factors reflects legislators' feelings that crimes occurring under these circumstances are potentially much more harmful—such as when drugs are sold to or around children—than when these factors do not exist.
Each state's aggravating factors are listed in the state's drug possession laws. These factors often include (but are not limited to) several or all of the following types of possession:
Most states and the federal government define felonies as any offense that carries potential prison time of more than one year. The exact penalty will depend on the jurisdiction and the circumstances of the crime.
For instance, federal law makes a first offense for simple drug possession a misdemeanor. But subsequent offenses impose felony penalties of:
A person convicted of possession with intent to sell faces much stiffer federal penalties based on the type and amount of drug, number of prior drug convictions, location of the offense, and any resulting bodily harm caused. These felony penalties range anywhere from 4 years to life in federal prison, and many have mandatory minimum sentences.
(21 U.S.C. §§ 841, 844, 860 (2022).)
For information on a state's drug possession laws, follow the links below.
If you're charged with possession of illegal drugs and are facing felony criminal charges, it is very important that you contact an attorney who can help defend your case. A criminal defense lawyer will be able to evaluate the strength of the evidence against you, assess any possible defenses, advise you on any possibilities for reduced charges, and help you prepare to negotiate a plea bargain or go to trial.