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Drug Possession Felony or a Lesser Charge?

What are the charges you will face if you or a loved one is charged with a drug possession felony? The answer depends on a number of factors and ranges from years in jail with high fines to a relatively less serious sentence.

When Drug Possession Amounts to a Felony

Three key factors will determine if you are charged with a drug felony or a misdemeanor, which generally, as noted, means less jail time and low fines. These are:

  • The amount of drugs involved in the case
  • Type of drugs involved
  • If you are accused of trafficking or selling drugs.

Generally speaking, distributing, selling or trafficking drugs amounts to a drug felony under most state laws. The main reason for this is that more people stand to be injured in these cases. Certainly, if a person is found in possession of a large amount of drugs it is likely that he or she intends to sell or traffic the drugs, rather than keeping them for personal use.

When Drug Possession Amounts to a Misdemeanor 

Drug possession is generally considered a simply misdemeanor if only small amounts of drugs are involved that law enforcement agrees is most likely meant for personal use. Conversely, possession of large amounts of the exact same drug, such as marijuana or cocaine, would probably be considered a felony. 

Drug Felony Charges

Drug felony charges encompass a wide range of conduct. Much depends on the state that you live in. For example, possession of large amounts of marijuana may be charged as a felony in some states. Possession of lesser amounts of crack cocaine may result in a felony charge in other states.

Selling drugs can also result in felony charges, as can trafficking drugs, particularly across state lines. Higher penalties, as noted, may also result in these situations. The type of drug is also important when it comes to whether a drug case is prosecuted as a felony. Possession of Schedule 1 drugs, for instance, is most likely to result in a felony charges because these drugs, such as cocaine, heroin and LSD, are drugs that possess high risks and are unlikely to be used for medical applications. Schedule 5 drugs, on the other hand, are likely to be prescribed for medical reasons by a physician. 

Even first-time felony charges lead to serious punishments, such as many years in jail and high fines, as noted. Of course, the amount of drugs that is possessed or sold and the type of drug involved play an important role in the sentencing process. Even first time offenders can face one to three years in prison and several thousand in fines depending on the drug that is possessed or being sold. Again, repeat offenders face much high penalties.

Immigration Consequences

Of great importance in many of these cases are any immigration consequences for a felony possession charge. For example, your immigration status could be greatly affected by a felony possession charge. Consider cases of “moral turpitude” in which the crime involves threats to public safety. The defendant may face deportation or removal or have their green card revoked, and he or she may never be allowed to reenter that U.S., particularly if the case involves a repeat offender. In such cases, it is especially important for the defendant to be represented by an attorney who is proficient in both criminal and immigration law and how they interact.

Additional Felony Drug Factors

Other factors to consider when it comes to felony charges include:

  • Aggravating Circumstances: Possession of illegal drugs on school grounds or other locations including those where children are likely to gather. These include on or near a school bus, on or near public buildings, parks, pools, public transportation and housing units. 
  • Amount or Type of Drug: In Kentucky, for instance, possession of specific amounts of Schedule 1 or Schedule 2 narcotic substances is a felony, while possessing non-narcotic Schedule 1 or Schedule 2 drugs will result in a misdemeanor charge. In most states, possession of a Schedule 1 drug such as heroin always results in a felony charge. Felony charges will also result if you attempt to sell drugs near a drug treatment facility or in the presence of a minor (someone under 18 years old).
  • Possession for Personal Use or Intent to Sell. As noted, possession of drugs for personal use usually results in lower penalties than possession of drugs to sell. However, even possession of small amounts of some drugs, such as heroin or cocaine, may lead to felony charges. Possession of large amounts of drugs almost always results in intent to sell, which, again, results in long jail sentences and high fines. 
  • Simple possession vs. possession with intent. It’s important to keep in mind that even if the possession of drug was for personal use, if a large amount is involved the government will automatically assume that the defendant intended to sell the drugs. As a result, the prosecution will push for felony conviction on the grounds that the defendant posed a danger to others and the community as a whole.

Getting the Help You Need When Charged with a Drug Possession Felony

As noted, if you or someone you know is facing drug possession felony or misdemeanor charges, it is important to have the right attorney at your side. Instead of facing years in prison or fines totaling $10,000 or more, you should contact a criminal defense lawyer to start building your defense as soon a possible. The right attorney will be able to assess the strength of the evidence against you, assess the possible defenses that will help to reduce the charges in your case, advise you on possibilities for reduced charges, and help you to negotiate a plea bargain or go to trial. The goal is to have your case dismissed, or to go to jail for the minimum amount of time and pay the lowest possible fine. 

Again, even possession of a small amount of illegal drugs can result in an expensive trial and jail time, depending on where you live and the drug(s) involved. This is not the result that you would want to face. That is why it is so important to consult with attorneys in your area to see what your options are.  

Some qualities to look for in a good criminal law attorney who specializes in drug possession felony cases:

  • A lawyer with a passion for the law—someone who seems genuinely interested in your case.
  • Keep in mind that all experience is not the same. A tax lawyer who has been in practice for many years is still not the right lawyer for you.
  • Trust your gut feelings. You should be comfortable discussing your case with your lawyer. He or she should explain your options and then let you choose. If you feel pressured to take the lawyer’s advice, seek out another representative.
  • Keep in mind that getting ready for court is not a one man job. Ask to speak with the administrative staff, paralegals and any other lawyers who may be working on your case.
  • Choose a lawyer who is confident, but not arrogant. He or she should build your case with strong preparation processes, and not make promises they cannot keep.
  • Check references. Ask friends and trusted associates for lawyers they would recommend to handle a drug possession felony case.
  • Consider the fee. A more experienced lawyer is likely to charge a high fee, but it should be comparable to other lawyers of his or her caliber.
  • Do you understand your lawyer? Ask him or her to explain any terms that you do not understand.
  • Make sure the lawyer takes the time to explain your options. Find a lawyer who will explain your options from plea bargaining to sentencing. Every decision you make has consequences, so you need to take the time to go over your lawyer’s suggestions. 
  • Just in case, find a lawyer with courtroom experience. While heading to court is expensive, it may be the best way to go in your case. For example, you may need to have your case presented before a jury if there are a lot of intricate details involved pertaining to the Schedule drug you had in your possession, how much, and where you where when the police arrested you.

Do not face a case involving a drug possession felony alone. The charges against you may be more or less serious than you think, and the best way to find out is to find the right criminal law attorney. With countless lawyers to choose from, you need to take action—again, by asking for references, and by asking the right questions when you meet with your lawyer.

Be realistic as well. The only way to get rid of a felony record is to have it expunged, which means erasing the record like it never occurred. Requirements for expunging a record vary by state, and most states don’t allow violent drug possession felony offenders to expunge their records.