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What is Drug Possession?

Drug possession is a criminal offense for the illegal possession of a controlled substance. Essentially, to be convicted of drug possession charge, you knowingly must have a controlled substance in your possession or within your proximity and control such as in the trunk of your car or in your home.

More people are imprisoned in the United States for drug possession than for any other criminal charges, as it is both a federal and a state crime. Laws vary greatly by state as to what constitutes illegal possession of drugs, but in general the type of drug and the amount in possession influences whether the crime charged is a misdemeanor or a felony and how severe the penalty might be.

The criminal justice system treats drug offenses seriously, which can lead to some severe punishments such as restrictions on your driver’s license or jail time. Since the federal, state and sometimes municipality laws can differ, these criminal cases often require working with a criminal defense attorney familiar with drug laws in order to avoid harsher penalties and protect the rights of the accused.

Drug Possession Laws

Typically, a drug possession law provides the type of controlled substance prohibited and the corresponding punishment. Drug offenses are typically treated as a misdemeanor or felony charge, and some states break these classifications down further into first degree, second degree, and third degree charges in order of severity.

Even though state drug laws vary from state to state, the elements for a drug possession charge are similar. Generally, the state prosecutor or district attorney must be able to prove two elements in order for a person to receive a drug conviction:

  1. The person accused knew the drug in their possession was a controlled substance, and
  2. The person accused knowingly possessed or had control over the drug.

Possessing a smaller quantity of a controlled substance for personal use is commonly known as “simple possession.” Sometimes a person may receive criminal charges for “constructive possession,” meaning the drug itself was not physical on the person at the time of their arrest but it was still in a space under their control like their vehicle. This commonly occurs when law enforcement suspects someone for driving under the influence of drugs (DUI) and locates a controlled substance in the trunk.

How Serious Is A Drug Possession Charge?

Generally, federal law as well as most state laws determine the severity of drug possession charges based on the type of drug and divide them into “schedules.” The types of drugs in each Schedule are based on the potential for abuse and dependency, with Schedule I posing the most severe risk and Schedule V having the lowest risk, including controlled substances such as:

  • Schedule I: Heroin, ecstasy, lysergic acid diethylamide (LSD), marijuana, peyote
  • Schedule II: Methamphetamine, cocaine, morphine, methadone, phencyclidine (PCP), fentanyl
  • Schedule III: Anabolic steroids, ketamine, barbiturates, testosterone, Tylenol with codeine
  • Schedule IV: Valium, Xanax, Tramadol
  • Schedule V: Other unlawfully obtained prescription drugs and cough medicines like Robitussin with codeine

A charge of illegal drug possession can be upped to the serious charge of possession with the intent to sell or distribute when the of drugs in your possession meet or exceed an amount set by the laws in various jurisdictions. A number of states refer to possessing a small amount of a less serious drug for person use as a “petty offense” and treated as a misdemeanor.

If drug paraphernalia, such as pipes, bongs, or plastic bags, are found in your possession, the residue found on those items can result in criminal charges and even aggravated as these items can be indications of intent to distribute or drug trafficking.

Is Possession of Marijuana A Drug Offense?

Although marijuana has been decriminalized or legalized in a number of states, there are still a number of ways a person may be charged with a drug offense for possession of marijuana. Some states only allow for medical use and possession of marijuana, which means using or possessing marijuana for recreational purposes is still a drug crime. Other states set drug laws controlling the amount or grams of marijuana a person may possess before it is considered a criminal offense.

Possession of marijuana remains a federal crime and possession of a controlled substance. Since it is classified as a Schedule I type of drug, the first charge is typically treated as a misdemeanor but any following criminal charges are treated as a felony drug charge.

Do I Need An Attorney For Drug Charges?

If you have been arrested for drug possession, working with an experienced criminal defense lawyer or law office might be the right choice for you. Defense attorneys can be an important asset for protecting your rights and minimizing the possible penalties of a drug conviction. An attorney experienced in handling drug-related cases is aware of the many possible defenses to the charge. He or she understands all applicable laws and how the following factors can become part of your defense and impact the outcome of your case.

  • Your age
  • The number of times you have been arrested
  • Your intended use for the drugs
  • The quantity of drugs
  • The type of drugs
  • If the police had probable cause to search you, your house
  • A prior criminal record or history of drug offenses

Many criminal defense lawyers or law firms offer free initial consultations to learn about your case, discuss their approach to drug-related cases, and determine the associated costs and fees for representation. A number of law offices work with clients to create payment plans to ease financial burdens.

Establishing attorney-client relationship often provides more than just legal advice. Often defense attorneys are able to negotiate with district attorneys for less serious charges or a less serious punishment through a plea bargain. Punishments imposed in drug convictions run the gamut from community service to lengthy prison sentences, depending on the factors listed above. This makes the skill and expertise of our defense lawyer a valuable asset when facing a drug possession charge.

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