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Defenses to Possession of a Controlled Substance

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What Is Possession of a Controlled Substance?

Possession of a controlled substance is a criminal offense that entails possessing a drug that has been classified by state or federal legislature as illegal.

When one thinks of illegal drugs, they commonly picture typical street drugs like heroin, cocaine, and methamphetamine. However, legal pharmaceutical drugs that require a prescription may become illegal when they are possessed by someone without a valid prescription.

Possession of a controlled substance can be either actual or constructive. Actual possession occurs when an individual is caught with drugs on their person, such as inside their pants pockets. Constructive possession occurs when drugs are found near but not on an individual, such as inside the car or room that the individual was found in. The prosecutor must show the individual had knowledge of the controlled substance, as well as an intent and ability to control that drug.

Possession of a Controlled Substance Laws

Laws regarding possession of a controlled substance vary by jurisdiction. The Drug Enforcement Agency (DEA) publishes a list of controlled substances, organized by Schedule. Schedule I drugs are mostly street drugs that are highly addictive and easily abused, whereas Schedule V drugs are usually prescription drugs that have a medical use with the lowest potential for abuse.

Federal law prohibits the possession of any Schedule I-V drug without a valid prescription. Federal law does not permit the possession of medical marijuana, even if the person has a state-permitted medical marijuana prescription.

All states prohibit the possession of a controlled substance without a valid prescription, though 24 states permit medical marijuana and 15 states have either decriminalized or outright legalized possession of small amounts of marijuana. Most states adopt the DEA’s controlled substance schedules.

Defenses to Possession of a Controlled Substance

The best defense for your case will depend upon your jurisdiction, the strength of the prosecutor’s case, the unique facts surrounding your arrest, and any mitigating evidence. However, common possession of a controlled substance defenses include:

  • Possession of a valid prescription: If you were arrested for possession of a prescription drug and have a valid prescription from a licensed doctor, you can use the prescription to show that your possession was not unlawful.
  • Lack of constructive possession: Constructive possession can be difficult for the prosecutor to prove. Circumstantial evidence, such as someone else’s mail or ID card in the room where the drugs were found, may be enough to show that you did not have the ability or intent to control the drugs.
  • Lack of knowledge: Either you did not know you possessed drugs on your person or you were unaware of drugs that were nearby.
  • Illegal search and seizure: The police did not have probable cause or consent to search you or your home and seize controlled substances subsequently discovered during the search.

Do I Need a Lawyer to Defend Against Controlled Substances Charges?

Possession of a controlled substance faces a considerable amount of prison time, depending upon the state, type of controlled substance, and amount. A skilled criminal defense lawyer can help you defend against accusations of possession by examining the facts of the case and devising an effective defense strategy to thwart the prosecution.

Photo of page author Jess UF

, LegalMatch Legal Writer

Last Modified: 06-06-2016 01:51 PM PDT

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