Drug possession simply means having a quantity of a controlled substance, either for personal use or for sale or distribution to others. Possessing certain “controlled substances†is illegal under both state and Federal laws, and penalties are established for these offenses by all jurisdictions. There are exceptions, which will be explained below.
The Controlled Substances Act includes under its authority such drugs as heroin, methamphetamines, cocaine, and marijuana, hallucinogens such as LSD, ecstasy and morphine, but also Vicodin, anabolic steroids, and prescribed drugs like Valium and Xanax. Even cough suppressants are regulated under the Act.
In general, the more severe the drug’s effects, and the more likely its abuse, the more stringent are the laws applied to them. Although most cases involving drug possession or abuse are concerned with “hard†drugs, even those prescribed by a doctor might be misused, particularly when they are in possession of a person without a legal prescription.
Simple Possession and Possession With Intent to Distribute
A charge of possession can be a case of simple possession, or it may also include a charge of possession with intent to distribute, a far more serious charge. The difference lies chiefly in the quantity of the drug found to be in the person’s possession. The larger the quantity, the more likely the charge will be “with intent to distribute,†with much more serious penalties.
Evidence used in cases of “intent to distribute†would include having in one’s possession in addition to the drug, such articles as scales for weighing drugs, grow lights and related equipment, and items such as small, sealable plastic bags, as well as the testimony of witnesses who have actually received or purchased drugs from the person being charged.
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Elements of Proof of Possession
As in all criminal cases, the burden of proof is upon the authority making the charge. This means that the state or Federal Prosecutor must be able to prove (beyond a reasonable doubt) that the person charged knew that the substance was illegal, or possessing it without a legal medical prescription and that they either had it in their possession or had other control over the substance. Drug possession laws can also include the possession of drug paraphernalia, clearly covering such items as syringes, but also pipes, if there is evidence of drug residue in the pipe. Drug possession may be classified as a misdemeanor or felony, depending on the particulars of the case.
Misdemeanor Drug Possession
Drug laws can vary from state to state, however, in general, a person found to possess less than 20 ounces of marijuana would typically be charged with a misdemeanor. The penalties for misdemeanor possession could be anything from probation, a small fine, a short jail stay, community service or court-ordered drug counseling, depending on the state and the facts of the case. Some states take exception, however, and have much harsher penalties, even for simple possession of a small quantity of drugs. Anyone charged should be familiar with the laws that apply in their state.
Felony Drug Possession
Simple possession is routinely considered a misdemeanor, particularly when a small quantity is involved. But certain other factors typically raise the charge to a felony. These include Possession of “hard†drugs, possession of a large quantity of drugs, evidence of drug sales or distribution, or proof of the intent to sell or distribute.
Possession of heroin, cocaine, meth, crack, ecstasy, LSD, or prescription drugs possessed without being legally prescribed, are generally all charged as felonies, regardless of the amount possessed.
Except in cases of drugs legally manufactured in accordance with Federal Regulations, and controlled under the supervision of the Drug Enforcement Administration (DEA), any other, unauthorized manufacture or cultivation of drugs is a felony.
Although marijuana laws vary from state to state, with decriminalization becoming a reality in many states, it is important to know that:
The Federal Government still classifies marijuana as a Schedule 1 drug, which is the same category as heroin or other hard drugs, and they are likely to prosecute persons possessing, selling, distributing, or cultivating it, regardless of state laws.
If drugs are in possession of a person near a public school or daycare center, the charge would also be a felony. Possession with intent to distribute is a much more serious crime.
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Penalties for Drug Possession
As previously noted, the penalties for drug possession vary depending on the state, the type of drug, the quantity of the drug possessed, and prior convictions, if any. First offenders may be subject to probation, a fine of generally $100 or less, a few days in jail, plus other requirements such as community service or drug counseling. Some states have more severe penalties: Fines of thousands of dollars and jail terms of several years, and other sanctions as imposed by the court.
If drug sales or distribution are included in the charge and depending on the type and quantity of the drug possessed, the penalty could include fines of up to $100,000 or more, and jail terms of ten years or more.
Federal Sentencing Guidelines, as well as state laws, require mandatory minimum jail terms for drug offenses. These laws set minimums based on weight and size of the drug haul, and whether or not the person convicted has been convicted of the same or a similar drug crime.
Sentencing for possession of heroin, cocaine, crack, meth, LSD or illegally possessed prescription drugs are generally classified as felonies, with jail terms generally from one to three years, regardless of the quantity possessed. Penalties for possession of crack, however, typically carry longer jail terms than possession of powdered cocaine. There is no Federal mandatory minimum term set for possession of five grams of powdered cocaine, while the Federal mandatory minimum sentence for an equal amount of crack is five years.
Possible Defenses for Drug Possession
Although the Federal government is quite strict in the enforcement of drug laws, there are several possible defenses available at the state level. A very common defense is simple denial by the person accused that they had possessed the stated drug. This defense is typically used when a person’s home or vehicle has been occupied by other persons, and the owner asserts that any drugs found there were in the possession of the other persons and not the owner, or when several people were in the owner’s vehicle, and it would be difficult or impossible to prove who the actual possessor of the drug was.
Another defense is when a person unwittingly is found in possession of drugs without their knowledge, as when a person receives a package from another person which contains drugs, but the person receiving the package had no knowledge of the package contents.
Sometimes a person accused of drug possession is the victim of police misconduct. One example is a case of entrapment, where police deliberately plant drugs on a person or in a person’s vehicle to secure a conviction.
As in all criminal cases, the accused must have his/her legal rights read to them by the arresting officer. If these “Miranda Rights†are not read, the arrest would be illegal, and a case could be made for acquittal.
The Fourth Amendment to the United States Constitution protects against unlawful searches and seizure of property. Except in certain cases, where there is clear evidence of a crime in progress, a properly executed search warrant is required before a search may be performed.
If drugs are in plain sight, they may be seized and used in evidence. If the drugs are not in plain sight, or are secured in a closed container such as a box, bag, trunk of a car or in a person’s home, a properly executed warrant to search that object or home must be presented, and police must obtain the consent of the person owning that property or container before opening and searching it.
If police enter a home, force open a secured container, and so on without the consent of the owner, any drugs found cannot legally be seized and used in evidence.
Sometimes, drugs seized to be used as evidence in a drug possession case may have been misplaced by police. In such cases, a defense attorney will insist that the evidence is produced before the accused person can be convicted. If it cannot be produced, there can be no conviction.
A similar situation arises when drugs have been sent to a lab for analysis, and the analysis reveals that the substance is not an illegal substance as claimed, there can also be no conviction.
Another defense can be used in cases of marijuana possession when the person charged can prove legal possession of medical marijuana while under the care of a physician. However, as was stated above, although the possession of medical marijuana is legal in many states, marijuana possession can still be prosecuted by Federal authorities.
Defenses for Charges of Possession With Intent to Distribute
In cases involving a charge of possession with intent to distribute, the prosecution must be able to prove, first, that the person charged was actually in possession of the specified drug. If the prosecution fails to prove that the substance is the drug specified, then there could be no conviction.
Secondly, the prosecution must be able to prove the intent to sell or distribute. If the defense attorney makes the case that the person charged intended only to consume the drug, and not sell or distribute it, there should also be no conviction on the charge of intent to distribute, but there could be a conviction for simple possession, which would carry a less serious penalty.
As in cases of possession only, the defense attorney might argue that the person charged had no knowledge of the drug being in his/her possession. If that can be proved, or even if there is a reasonable doubt raised by the defense attorney, it is possible that the case could end in acquittal.
On some occasions, crucial evidence for the defense may be suppressed from the trial. For the prosecution to make its case against the defendant, evidence such as drug paraphernalia would have to be produced and entered into evidence. If there is no such evidence, the defense attorney could convince the jury to acquit the defendant.
As cited above, when a person is arrested for possession with intent to distribute, the arresting officer must read the “Miranda Rights†to the accused person. If the accused person is not read their rights, the defense attorney can challenge the legality of the arrest, and work towards acquittal.