A controlled substance is a drug or material that is regulated by state and federal laws, including the Controlled Substances Act (CSA). The CSA provides a list of dangerous substances that are regulated based on their potential for abuse and medical use. The unauthorized possession of a controlled substance is a serious offense that can result in significant fines and jail time.

What is Possession of a Controlled Substance?

It is not a crime simply to be in possession of a drug that is regulated by the CSA and other laws. For example, possessing drugs that are prescribed for a legitimate purpose by a medical professional would not be considered illegal. Illegal possession occurs when you knowingly use or are in possession of a dangerous substance without legal authorization.

There are different factors that the police will consider when trying to determine if you are illegally in possession of a controlled substance.

  • Actual or Knowing Possession: In this situation, you have physical control over the substance. This may mean it is on your body or you otherwise have the ability to exercise control over it. You must know you have possession of the drugs and are intentionally exercising control over it.
    • For example, if someone slips their drugs into your purse without your knowledge or consent, it is difficult to attribute actual possession to you.
  • Constructive Possession: If you do not have the drugs on your body, but it is found in or around your person or property, you may be in constructive possession of the drugs. It isn’t enough that the drugs are in close proximity. The police will have to show that you knew about the presence of the drugs and that you intended to exercise control over it.
  • Shared Possession: The prosecution may prove the possession element even if you did not have exclusive control over the regulated substance. You can have shared possession based on your joint possession of the drugs.
    • For example, if you share an apartment with a roommate and the drugs are found in the living room, the location of the drugs and additional facts may establish that you and your roommate had joint constructive possession of the drugs.

Is Possession of a Controlled Substance Classified as a Misdemeanor or a Felony?

Whether you are charged with a misdemeanor or a felony will depend on several factors, including the following:

  1. Type of Drug: As stated above, the CSA lists controlled substances based on their usefulness and addictiveness. The less useful and more addictive the substance, the more heavily they are regulated. You are more likely to be charged with a felony based on whether you are in possession of heavier regulated substances.
    1. Marijuana, for example, is less likely to lead to a felony arrest than possession of something considered more dangerous, like methamphetamines or crack cocaine.
  2. Amount of Drug: In addition to the type of drug, you can be charged with a felony versus a misdemeanor based on the amount of drugs you possess. State laws may set a certain amount based on the type of drug involved.
  3. Intent: The prosecution has to establish your intent in order to prove its case against you for possession. Likewise, whether the prosecution can charge you with a felony will depend on your intent.
    1. For example, if the facts show that you were in possession of the drugs with the intent to distribute as opposed to possessing them for your personal use, you can be charged with a felony.

What are the Penalties for Possession of a Controlled Substance?

The penalties for possession of a controlled substance will depend on a variety of factors, including the type of drugs, the amount of drugs, the arrestee’s criminal history and other facts relating to the arrest. The following penalties may be handed down based on the above factors:

  • Fines: The range of fines can vary significantly and are usually dependent on whether the facts establish a felony or a misdemeanor.
  • Jail Time: State law may authorize incarceration ranging from a few days to a significant number of years.
  • Probation and Rehabilitation: The court may determine that the person may benefit from probation or rehabilitation instead of prison time. When probation is ordered, the person will be required to submit to regular check-ins with a probation officer. Failure to do so may result in the court ordering incarceration of the offender.
    • The court also may determine that rehabilitation makes more sense. Instead of being incarcerated, the offender will attend a drug treatment program for a certain period of time.

Do I Need an Attorney for Help with Possession of a Controlled Substance Charges?

The possession of a controlled substance is a serious offense with the potential for significant fines and jail time. A criminal defense lawyer in your state can help you understand the specific nature of the charges and help you mount available defenses against the charges.