Possession of a Controlled Substance

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A controlled substance is an illegal narcotic that can affect a person’s health and welfare. Both state and federal laws make it a crime to possess controlled substances. Someone who is caught with controlled substances can be sentenced to jail or prison and receive heavy fines.

However, possessing controlled substances is not always illegal. Some controlled substances are prescribed to consumers by medical professionals and are given to patients for legitimate reasons. To determine if a drug is illegal, you should review the federal controlled substance schedule.

Under the Title 21 USC Controlled Substances Act of 1970 (CSA), it is illegal to do any of the following with a controlled substance:

  • Manufacture
  • Distribute
  • Dispense
  • Possess with the intent to distribute or manufacture
  • Attempt or conspire to try any of the above

Under state and federal laws, drug possession happens if you have the ability and intention to control the drug. Criminal possession of illegal drugs is determined by law enforcement in these ways:

  • Actual possession: You physically are holding or controlling the drug. Usually, this means it is in your pocket, hand, coat, etc.
  • Constructive possession: This happens if the illegal drug is not on you, but is in or around your property, such as your car. To prove this, the prosecutor must prove that you had knowledge of the presence of the drug and have ability to control it.
  • Shared possession: You may be convicted of possession of a controlled substance if it is proven that you have even partial control of the illegal drug.

Possession is less serious than drug trafficking, which can be charged if you are carrying larger amounts of drugs.

Misdemeanor or Felony Drug Possession

It can be a misdemeanor or felony to possess a controlled substance, depending upon these factors:

  • Drug type: Some types of drugs have more serious penalties than others. For instance, possessing marijuana is often a misdemeanor charge. It can even be only a traffic citation in some states. But possession of crack cocaine will be a felony most of the time.
  • Drug amount: Possession of more of the drug will make it more likely you get a felony charge. For most states, possession of the drug over a certain amount will make it a felony charge.
  • Intent: Possession of a drug for your personal consumption is often a misdemeanor. But if you are carrying a larger amount than what a single person usually consumes, you could be charged with a felony with intent to distribute.

What Drugs Can Be Legally Possessed?

The US government has defined controlled substances as any of the drugs that are listed on the schedule in the Controlled Substances Act. This schedule consists of five categories:

  • Schedule I: No medical use, illegal and unsafe, such as heroin, LSD, cocaine, methamphetamine and ecstasy.
  • Schedule II: High potential to be abused and can lead to severe dependence, such as methadone, OxyContin, Dexedrine, morphine, codeine and opium.
  • Schedule III: Less potential for abuse but may lead to a lower level of dependence, such as Vicodin, anabolic steroids, and ketamine.
  • Schedule IV: Have less potential for abuse than Schedule III, such as Xanax, Valium, Ativan, and Halcion.
  • Schedule V: Contain limited amounts of narcotics, such as cough syrups with codeine.

In a technical sense, it is illegal to possess the controlled substances on the above list. But if you have been prescribed some of these drugs (excluding Schedule I), you are not in violation of state or federal laws.

Controlled Substances Laws At State and Federal Levels

The Controlled Substances Act is a US law. So any states that are in conflict with this law will not be upheld in federal court. The Constitution states if there is a conflict between federal and state law, the former preempts the latter. Still, states are allowed to have flexibility in how they enforce the Controlled Substances Act. Some states have stricter laws. Most states adopted the major provisions of the CSA.

For marijuana, the CAS trumps state laws per the Constitution. Thus, marijuana is still illegal in all 50 states, but states that want more flexibility with this controlled substance do not criminalize possessing ‘user’ quantities of the drug. Or, the states will pass medical marijuana laws that allow people to possess limited quantities for medical use. Many of these state laws conflict with the CSA, but the US attorney general has ordered federal prosecutors to not use government resources to pursue people who are in compliance with state laws in their area.

Penalties for Possession of a Controlled Substance

Federal penalties for possession of a controlled substance depend upon the type and quantity of drug. For instance, if you are charged with possessing between 550 and 4999 grams of cocaine, the Federal Sentencing Guidelines state you can receive between five and 40 years in federal prison, and a fine up to $5 million.

People who possess a higher quantity could get the higher end of that sentence; your criminal background and other factors also influence the exact sentence. If the drug possession crime involves injury or death, the punishment can be increased to 20 years to life.

You can be charged with either federal or state crimes for possessing a controlled substance depending upon where the offense occurs and other factors. Federal authorities have enacted mandatory minimum sentencing for many drug crimes. The mandatory minimum sentence can be affected depending upon aggravating or mitigating factors.

Below are some of the possible penalties for various possession of a controlled substance crimes in various states:

  • Texas: If you are convicted of possession of less than one gram of Schedule I or II drugs, you may receive a state jail felony sentence of up to a year in jail. If you possess between one and four grams of a drug from either group, you may be charged with a third degree felony with more than five years in prison.
  • Utah: Third degree felony to possess a Schedule I or II drug. Fines can be up to $5000 and up to 10 years in prison. A second offense can net up to 20 years in prison and a $10,000 fine.
  • Virginia: Possession of a Schedule I or II drug can result in a year in jail, or up to 10 years in prison for larger amounts. Fine can be up to $2500.
  • New Jersey: Possession of any Schedule I-IV drug can get a fine of up to $35,000 and five years in prison.

For possession of smaller amounts of drugs, some states will allow for probation, but it can be accompanied by jail time and fines. Another option is a diversion program. This is often used for first time drug offenders. The prosecutor will allow you to enter a counseling program for six months or longer. After the diversion program is finished, the drug charges may be dropped. This is very important for first time offenders; having a drug possession conviction on your record can be personally and financially devastating.

Defenses for a Possession of a Controlled Substance Charge

Effective criminal defense attorneys may be able to effectively defend your rights against these charges, depending upon the case circumstances. Some of the common lines of defense include the following:

  • Did the arresting officer engage in any unconstitutional misconduct during the arrest?
  • Was there an unreasonable search and seizure?
  • Were you advised of your Miranda rights when you were arrested?
  • Was the evidence stored and collected properly?
  • Is there enough evidence to support the possession charge?

These lines of defense can lead to either suppression or exclusion of evidence, which can lead to case dismissal. Even if the drug charges are not dismissed, they can be reduced for some offenders with a limited criminal history.

Recent Possession of a Controlled Substance Cases

  • Two California Men Arrested on Controlled Substance Charges – Two men from California were arrested last week in Nebraska on controlled substance possession charges. They were in possession of a baggie of methamphetamine and $234,000 in cash.
  • Two Dunkirk, New York Men Arrested for Drug Possession – Two men from Dunkirk, New York were arrested by state police for possessing ecstasy and marijuana. New York state troopers stated they could smell marijuana in the vehicle and a subsequent search found eight grams of ecstasy and a bag of marijuana.
  • Four in Missouri Face Drug Possession Charges – Three men and one woman face possession of controlled substances charges in Paris, Missouri, after a police search of two residences in Paris and Stoutsville. The search found large quantities of methamphetamine, heroin, marijuana and a firearm.


Geoffrey Nathan, Esq.

About Geoffrey Nathan, Esq.

Geoffrey G Nathan is a top federal crimes lawyer and Chief Editor of FederalCharges.com. He is a licensed attorney in the Commonwealth of Massachusetts since 1988, admitted to practice in both Federal and State courts. His cases have been featured in The New York Times, Boston Herald, Wall Street Journal, Foxnews and CourtTV. Massachusetts Board of Bar Overseers Number #552110. If you have questions about your federal case he can help, call today at 877.472.5775.