Under criminal laws, a “controlled substance” is generally defined as any drug or material that is subject to state and federal laws. These are usually substances that pose some sort of danger or risk of harm, addiction, or abuse. 

The Controlled Substances Act (CSA) provides a broad list of substances that are regulated, based on factors such as their potential for misuse versus their potential medical benefits. This list is updated frequently as newer substances are discovered or invented. Federal and state criminal laws regulate who can possess, sell, distribute, and use controlled substances, and in what amounts.  

Depending on the circumstances, the term “controlled substance” can include both illegal or illicit drugs as well as certain prescription drugs.

What is Possession of a Controlled Substance?

The unauthorized possession of a controlled substance is typically classified as a criminal offense. Such violations can result in significant criminal fines, jail or prison time, and other criminal consequences.

The term “possession” can include a broad range of conduct, including:

  • Holding or carrying the controlled substance on one’s person;
  • Having the substance within reach or control of the person (such as when it is being transported in a car within easy access);
  • Owning prescription drugs without the proper prescription; and
  • Various other types of related conduct.

There are certain situations when a person is not even holding or carrying the substance, and yet can be considered as possessing it. For instance, under constructive possession laws, a person can be legally considered possessing a substance if:

  • They have knowledge of the drug’s presence on their property; and
  • They also have the ability to maintain control and dominion over it.

Is Possession of a Controlled Substances a Misdemeanor or a Felony?

This depends on several factors. First, the type of controlled substance can determine whether possession is a misdemeanor or a felony. Controlled substances are typically categorized according to “Schedules”. Schedule 1 drugs are more dangerous and generally lead to more serious drug crime punishments

For instance, possession of heroin, a Schedule 1 substance, can often lead to felony charges. In comparison, possession of marijuana may only lead to a misdemeanor or even a minor traffic citation in some areas. 

Secondly, the amount of the substance possessed can affect the criminal charges. Generally speaking, possession of a larger amount will result in more serious felony charges, especially if the amount indicates an intent to distribute the substance. 

In comparison, possession of smaller amounts for personal use may result in misdemeanor charges. The amounts and charges again depend on the exact type of controlled substance. 

What are the Penalties for Possession of a Controlled Substance?

Misdemeanor controlled substance convictions will usually result in a criminal fine, and/or a jail sentence of less than one year. For instance, a misdemeanor conviction might result in a fine of $500 and 6 months in jail, depending on the substance and amount possessed.  

Felony possession charges will result in higher criminal fines, and a sentence in prison (not jail) of more than one year. For example, a felony conviction might result in a fine of $10,000 and a prison sentence of five years. Felony convictions can also result in a loss of certain rights, such as the loss of the right to possess a firearm.

Each state has different controlled substance penalties. California has some of the lightest penalties, while states such as Washington might impose more strict penalties.

What are the Defenses for Possession of a Controlled Substance?

As with any criminal charge, defenses may be available for possession of a controlled substance. These may vary by state; a few examples include:

  • Duress: It may be a defense if a person is forced under threat of harm to possess the drugs (for instance, if they are held at gunpoint and told to hold drugs for someone);
  • Intoxication: Under some circumstances, intoxication can be a defense, especially if it affects a person’s ability to form the proper intention needed for a criminal charge; or
  • Possession of proper prescription: For some substances, it can be argued that the person had a valid prescription or license to possess the controlled substance.

Various other defenses may apply. Again, these depend on specific state laws as well as the exact circumstances of the crime. But keep in mind that voluntary intoxication is different from involuntary intoxication, like getting drunk vs. having your drink poisoned with a roofie, and depending on your jurisdiction one can be used as a defense and the other would not be useable. It is important to check with your local laws and consult an attorney in your area. 

What Can I Expect for First Time Offense for Possession of a Controlled Substance?

In some cases, a first-time offense for possession of a controlled substance can result in alternative sentencing options for the defendant. This is especially true for more minor crimes and less serious misdemeanors. For instance, the person might be allowed to be placed under house arrest or perform community service instead of going to jail. 

Again, these all depend on the exact nature of the charges and state laws. A skilled criminal defense attorney can be helpful in obtaining alternative sentencing for a first-time offense. 

On the other hand, a repeat offender might face more serious punishments than normal if the court determines that they are habitual offender or if there is a potential that they will continue repeating the crime in the future. 

Do I Need a Lawyer to Fight Charges for Possession of a Controlled Substance?

Possession of a controlled substance can lead to very serious criminal consequences. It may be in your best interests to hire a criminal defense attorney in your area if you need representation for a case. Your attorney can explain what your legal options are and can represent you during the criminal trial process.