Drug Possession Laws

Possession of a controlled substance can lead to significant prison time and fines in many jurisdictions. A conviction also can cause problems in areas such as employment and housing. If law enforcement suspects you of possessing illegal drugs, you should talk to an attorney without waiting until you have been formally charged. You should not discuss your situation with the police in the meantime, even if you think that you are innocent.

Elements of Drug Possession

Generally, a prosecutor charging drug possession must prove that the defendant knowingly or intentionally possessed a controlled substance without a valid prescription or other authorization. Possession may be actual or constructive. Actual possession is often described as immediate physical contact or direct physical custody or control. Constructive possession usually involves a more general ability to control the drugs.

If the defendant had a large quantity of drugs, or other evidence suggests that they intended to distribute them, they may face a more serious charge like possession with intent to distribute. Some jurisdictions even provide that possessing at least a threshold amount of a certain drug automatically equates to trafficking in that drug. For example, North Carolina defines cocaine trafficking and methamphetamine trafficking to include possessing 28 grams or more of cocaine and meth, respectively.

Paraphernalia and Precursors

Statutes also may criminalize the possession of drug paraphernalia. These are objects associated with the possession or use of drugs, such as pipes or bongs. In addition, a charge may arise from possessing a chemical precursor used to make a drug.

Examples of Drug Possession

Here’s a look at various situations involving the possible possession of a controlled substance:

Actual possession: A police officer pats down Phil during a legitimate stop and frisk, looking for weapons. The officer clearly feels a baggie in Phil’s pocket. The baggie turns out to contain a small amount of cocaine.

Constructive possession: The police respond to a tip about drug use at Phil’s residence. They execute a search during his absence and find cocaine in a chest of drawers in his bedroom.

Possession with intent to distribute: The cocaine in Phil’s bedroom is stored in a stack of baggies, each labeled with the name of a different person. The police also find a notebook in his bedroom that lists the same names with quantities and prices.

No possession: The police respond to a tip about drug use at the apartment complex where Phil lives. They find a baggie of cocaine stuffed under a sofa cushion in the lobby, which is accessible to all the residents of the building.

Offenses Related to Drug Possession

Other offenses that may be charged in situations that could support a drug possession charge include:

Defenses to Drug Possession Charges

Many drug possession defenses take procedural forms. For example, the Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. If the police found the drugs through a Fourth Amendment violation, the defendant can ask the court to exclude this evidence. The prosecutor probably could not get a conviction if this happens. In another example, if the police arrested the defendant and interrogated them without respecting their Miranda rights, the prosecution probably could not use statements from the interrogation.

A defendant also might claim that they did not have control over the drugs or were not aware of their presence. In other cases, a defendant might question the accuracy of a lab report that identified the drugs. Or they might present proof of a prescription if they were caught with a drug that doctors may lawfully prescribe to patients.

If law enforcement induces someone into committing a crime that they would not otherwise have committed, they cannot be convicted of that crime. This defense is called “entrapment.” However, simply giving someone the opportunity to commit a crime does not amount to entrapment. For example, a prosecutor could get a conviction for heroin possession if a suspect willingly bought heroin offered by an undercover officer, but not if the officer forced the suspect to take the heroin through threats or violence.

Penalties for Drug Possession

21 U.S. Code Section 844 provides the federal penalties for possession of a controlled substance. A first offense generally will result in no more than one year of imprisonment, although penalties increase for repeat offenders.

States impose a broad range of penalties for drug possession. For example, this is generally a third-degree felony in Florida, carrying up to five years of imprisonment. In Pennsylvania, on the other hand, it is generally a misdemeanor that carries up to one year of imprisonment. Washington limits jail time to 180 days in most cases, while a defendant in Missouri could face as much as seven years behind bars for most forms of simple possession.

Some states have enacted extremely nuanced sentencing schemes. For example, Texas has divided most controlled substances into Penalty Groups 1, 1-A, 1-B, 2, 2-A, 3, and 4. Each group contains several sub-tiers of penalties based on quantity. Depending on the type and quantity of the substance, a defendant could be charged with anything from a Class B misdemeanor (up to 180 days) to a first-degree or unclassified felony carrying a potential life sentence.

50-State Survey on Penalties

Justia provides a 50-state survey on penalties for drug possession in each state, including offense classification, prison time, and fines, as well as some sentencing alternatives.

First-time offenders convicted of simple possession sometimes can stay out of jail. Many states have drug courts or similar diversion programs that focus on rehabilitation rather than punishment. By successfully completing the program, a defendant can get the charge dismissed and avoid the consequences of a criminal record.

Last reviewed July 2024

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