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Drug Possession Overview

Federal and state drug possession laws make it a crime to possess illegal controlled substances knowingly. These laws cover drugs such as marijuana, methamphetamine, cocaine, heroin, fentanyl, LSD, and club drugs. They also criminalize the illegal possession of prescription drugs, certain precursor chemicals, and drug paraphernalia. Precursor chemicals can be agents and solvents used in drug cultivation and manufacturing. Drug paraphernalia can include all kinds of instruments and accessories used to ingest drugs.

The specific elements of federal and state crimes for the illegal possession of a controlled substance may vary. What constitutes drug possession in a given jurisdiction may depend on the type of drug, the amount of the drug (by weight), the state law in effect, and any possible defenses.

The following article provides an overview of drug possession laws. It covers the elements of a drug possession offense and the structure of these laws. It also addresses possession of drug paraphernalia and other related matters.

Requirements To Prove Possession of Drugs

Possession of certain illicit drugs can violate both federal and state laws. While drug possession laws vary from state to state, the basic elements of the offense are generally the same. In each case, the government must prove, beyond a reasonable doubt, that the defendant knowingly obtained, possessed, or used a controlled substance (or controlled substance analog) without a valid prescription or other exception in the law.

In a drug offense, possession can refer to actual possession or constructive possession. Actual possession means that you have the drug on your person. You have control over it. Constructive possession means that you have access to the drug even if it is not on your person. Your control over the drug is "constructive."

Under constructive possession, for example, the police may charge one or more individuals in a vehicle where they find illegal drugs. In such a case, law enforcement must gather both direct and circumstantial evidence to support their theory of who has possession of the drugs. Say the drugs were in the console, and all four people in the car had some ability to access the console. They may seize the illegal drugs and attempt to interview all the occupants of the vehicle. They may consider the strength of their evidence and possible defenses before they file drug possession charges on any individual(s).

What Is a Controlled Substance?

Federal law sets forth the list of controlled substances and precursor chemicals for law enforcement. Without a valid prescription or other exemption in the law, a person cannot possess these drugs. The law categorizes controlled substances into five schedules. The following provides a glance at the schedules and some of the well-known drugs within them:

Schedule I: Heroin, LSD, ecstasy, methaqualone, psilocybin, peyote, marijuana

Schedule I drugs present a high risk for abuse and addiction. They generally have no accepted medical use. Although marijuana remains in Schedule I under federal law, various states permit possession and use under certain circumstances.

Schedule II: Cocaine, methamphetamine, oxycodone, fentanyl, PCP, hydrocodone, morphine

Schedule II drugs also present a high risk for abuse and addiction. They do have limited medical use.

Schedule III: Ketamine, anabolic steroids, testosterone, lysergic acid

Schedule III drugs have the potential for abuse but present less risk than Schedule I and II drugs. They have medical use and present a lower risk of physical dependence.

Schedule IV: Valium, Xanax, Ativan, Ambien, Tramadol

Schedule IV drugs have a lower potential for abuse or dependence. They have accepted medical use.

Schedule V: Lyrica, certain cough medicines with codeine

Schedule V drugs have the lowest potential for abuse or dependence in the schedules. They also have medical use.

Federal law also categorizes precursor chemicals into two lists. Police can review these lists to evaluate whether the chemicals and supplies seized during an investigation may point to larger drug manufacturing activities.

Categories of Drug Possession Laws

When most people think of drug possession crimes, they think of a person caught in a drug transaction who possesses drugs for personal use. No matter which controlled substance is at issue, the imagined amount is small and meant for their own recreation. Yet, the crime of drug possession may be more complicated. For that reason, drug possession laws generally fall into one of two main categories:

  1. Simple possession (for personal use)
  2. Possession with intent to distribute

Simple possession encompasses cases where police find drugs on the person or within their reach at the time of arrest. Based on the law at issue, police will weigh the substance. They will also conduct a presumptive test for identification. They will send a portion of the substance to the crime lab for final verification. Based on the drug's weight, they will charge the defendant with the appropriate drug charge. Most drug possession offenses (other than marijuana) are felony crimes.

Possession with intent to distribute represents a crime that carries stiffer penalties upon conviction compared to simple possession. The goal is to punish and deter drug trafficking. To prove possession with intent to distribute (or sell), prosecutors may present evidence such as digital scales, baggies, and other instruments. Discovery of large quantities of the drug or large amounts of cash in small bills may support the inference that the suspect is a drug dealer who intends to distribute the drugs as well.

In some states, like Ohio, the degree of the crime and possible penalties will increase based on the amount of the drug in the defendant's possession. If the amount by weight is small, this represents a simple possession case. The greater the weight, the higher the felony degree and potential prison time. Thus, police and prosecutors do not minimize a drug conviction for possession in a defendant's criminal record. They want to know the drug and the amount involved before they make assumptions about the defendant.

State penalties for drug possession can be treated separately. For example, states that have an explosion of drug abuse involving fentanyl or methamphetamine may single out and increase penalties for possession of these drugs.

Likewise, many states have legalized possession of marijuana for medical use. Some permit recreational use of the drug. Thus, penalties for illegal possession of marijuana are less severe than penalties for possession of drugs that present a greater danger to public safety. Marijuana remains an illegal controlled substance under federal law. Yet, federal authorities have permitted states to experiment with legalization of the drug.

Drug Paraphernalia In Possession Crimes

Drug possession laws also prohibit the possession of paraphernalia, such as syringes, crack pipes, or bongs. The federal drug paraphernalia statute defines what constitutes drug paraphernalia, but it usually hinges on a determination of primary use. For example, a newly purchased water pipe may not be considered a marijuana bong unless it has drug residue or is sold explicitly as a marijuana bong. At the state level, possession of drug paraphernalia is often a misdemeanor offense.

Laws also exist to restrict the possession of certain chemicals or materials commonly used in cultivating or manufacturing drugs, such as the laboratory equipment used to make methamphetamine.

Alternative Sentences for Drug Possession Crimes

Many states now provide alternative sentencing options for simple drug possession cases. These programs focus on drug treatment and rehabilitation. Each state or local jurisdiction controls the criteria for entering into these programs. Often called diversion programs, they may seek to provide a first-time offender with an opportunity to get help and avoid a criminal record.

A common model in use today is the drug court or drug treatment court. These programs may occur at the misdemeanor or felony level. In either case, the defendant has the right to consult with a criminal defense lawyer and determine whether they want to enter the drug court program. Often, they will plead guilty to enter the program, and the court will hold sentencing in abeyance. If the defendant succeeds and completes the program, the court will vacate the plea and dismiss the case. If the defendant fails the program, the court will proceed to sentencing, and the defendant will have a drug conviction.

Get Legal Help With Your Drug Possession Questions

The crime of drug possession can have significant consequences. It can have a negative impact on a person's freedom, health, relationships, and employment. Federal and state laws may change in reaction to shifts in public opinion or upticks in drug overdose deaths. The conflict between federal and state laws can be confusing. To learn more about drug possession laws or to seek legal advice, consider talking with an experienced drug crime lawyer in your area.

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