Defenses for Drug Possession

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 What is a Controlled Substance?

Pursuant to criminal laws, a controlled substance is any drug or material that is subject to federal and state laws. Typically, these are substances that pose some kind of danger or a risk of harm, addiction, or abuse.

The Controlled Substances Act (CSA) provides a list of substances which are regulated. These substances are regulated based upon factors including their potential for misuse compared to their potential medical benefits.

This list is frequently updated as newer substances are invented or discovered. State and federal criminal laws regulate what individuals are permitted to possess, sell, distribute, and use a controlled substance, as well as in what amounts.

Depending on the circumstances of the case, a controlled substance may include both illegal and illicit drugs as well as certain prescription drugs.

What is Possession of a Controlled Substance?

The unauthorized or illegal possession of a drug or controlled substance is often classified as a criminal offense. Violations of drug laws may result in significant criminal fines, prison or jail time, as well as other criminal consequences.

The term possession may include a broad range of conduct, such as:

  • Holding or carrying the drug on one’s person;
  • Having the drug within the individual’s reach or control, for example, when it is being transported in a car within easy access;
  • Owning a prescription drug without the proper prescription; and
  • Various other types of conduct related to drugs.

There are also certain situations in which even though an individual is not even holding or carrying the drugs, they may be considered to possess it. This occurs pursuant to constructive possession laws.

Pursuant to the concept of constructive possession, an individual may be legally considered to possess a drug if two conditions are met. These two conditions are if the individual has knowledge of the drug’s presence on their property and they have the ability to maintain dominion and control over the drug.

What is Drug Possession?

An individual may be charged under state or federal law with drug possession if they have knowledge and control of a drug at the time at which they are arrested. Possession may come in three forms:

  • Actual, where the individual physically has the drugs);
  • Constructive, where the individual does not have physical possession of the drugs but has them on or around their property; and
  • Shared, where the individual has partial control over the drug with another individual.

Actual, shared, and constructive possession of drugs is particularly significant in situations where an individual is charged with the possession of drugs that were found in a car which had multiple occupants. The location of the drugs in the vehicle may help shed light on which individual was in possession of them. It is important to note, however, that in some states, an individual may be charged with possession in this situation even if the drugs did not belong to them.

Is Drug Possession a Felony or a Misdemeanor?

Whether an individual is charged with a felony or a misdemeanor may mean the difference between a prison sentence and a citation. The definitions of a felony and a misdemeanor vary greatly by state. However, most statutes consider:

  • The type of drug involved, such as marijuana versus crack cocaine;
  • The amount of the drug in the individual’s possession; and
  • Their level of intent.

For example, the possession of a small amount of marijuana can be used to establish that the individual had the drug for personal use as opposed to for distribution purposes. Possession with the intent to distribute a drug carries a more severe penalty than possession for personal use. It is also more likely to be charged as a felony.

What are the Penalties for Possession of a Controlled Substance?

A misdemeanor drug conviction will typically result in a criminal fine or jail time of less than one year. For example, an individual convicted of a misdemeanor drug offense may face a $500 fine and 6 months in jail, depending on what substance and what amount of the substance they possessed.

A felony charge for drug possession will result in a higher criminal fine and a prison sentence, instead of a jail sentence, of more than one year. For example, an individual convicted of a felony drug charge may be sentenced to a prison sentence of five years and a fine of $10,000.

Felony convictions of any type are serious and may have life-altering effects. For example, the individual may lose certain rights including the right to possess a firearm.

Every state in the United States has different penalties for drug crimes. The State of California has some of the least severe penalties. On the other hand, Washington State may impose stricter penalties.

What are Some Common Defenses in Drug Possession Cases?

Although every state varies regarding the prosecution of drug cases, there are defenses which may be available to drug charges. Traditional defenses to drug charges include:

  • Illegal search and seizure;
  • The individual was not actually in possession of the drug;
  • The drug is not a controlled substance;
  • The individual has a medical exception; and
  • The individual has good samaritan immunity.

Drug cases involving illegal search and seizure are some of the most heavily litigated at both the federal and the state level. This is especially true when the drugs are found in a car or in a home. The 4th Amendment guarantees every individual the fundamental right to privacy, making unreasonable searches and seizures unlawful.

The reasonableness of a search typically overrides the right to privacy in drug cases when law enforcement can establish probable cause to perform a search, have a valid warrant that permits the search, or has consent from an authorized individual to perform the search. The reasonableness of the search is determined by the facts and circumstances of the case.

For example, a vial of cocaine that was in plain sight on the dashboard which is seized by law enforcement easily overcomes any defense. However, if law enforcement, without consent, reaches into a vehicle and opens a compartment and finds drugs, the individual may have a valid defense of illegal search and seizure.

Another possible defense is the lack of possession. An individual may only be charged with a drug crime if they had actual, shared, or constructive possession of the drugs. For example, an individual may argue that the marijuana found under the driver’s seat in a vehicle in which they were a passenger belonged to the driver and they were not in control of the drug.

In order to be charged with a drug crime, the substance must be a controlled substance. For example, if law enforcement seizes a bag of a white powdered substance but that substance turns out to be baking powder and not cocaine, the individual was not in possession of a controlled substance and the charges will be dismissed.

In some states, individuals are permitted to use medicinal marijuana. If law enforcement searches an individual’s residence and finds marijuana, they may have a defense if the arrest took place in a state in which marijuana is legalized and they have proof of their medical authorization to be in possession of the drug.

Some states have passed laws that provide good samaritan immunity to individuals who seek medical assistance in connection with a drug overdose. Often, bystanders who were also using the drug may be scared to report the incident for fear they themselves would be arrested.

Do I Need a Lawyer to Help Me Defend a Charge of Drug Possession?

It is extremely important to have the help of a drug lawyer to defend you if you are charged with drug possession. Whether or not there is a valid defense in your case, the penalties for a drug possession charge can vary greatly across the states depending on the facts of your case.

While there are defenses that are generally available, such as those discussed above, there may be other state-specific defenses that only your attorney would be familiar with. As previously discussed, a felony drug conviction can change your life and affect your loved ones for years to come. In some cases, your attorney may be able to negotiate a plea bargain or a reduction in charges which you would not be able to obtain alone.


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