If a law officer finds you in possession of a controlled substance, for personal use, distribution, or even for sale, you might be arrested to face different charges. An individual found guilty of possessing these substances faces punishment according to the kind of drug he or she has and the situations of the arrest.
There are dozens of reasons why you can be apprehended for possession of a controlled substance. These can include having a drug problem, case of mistaken identity, or other purposes. Whichever the case, you might need to seek the services of a professional criminal defense attorney.
Definition of a Controlled Substance
A controlled substance is an unlawful drug that can lead to a negative effect on your welfare and health. Due to this, the state and federal governments have enacted laws that regulate these substances. It is, therefore, a criminal offense to possess a controlled substance that is classified by federal and state legislature as unlawful.
When people hear about unlawful drugs, they often think of street drugs such as methamphetamine, cocaine, and heroin. However, lawful pharmaceutical medicines that require doctors’ prescription can become illegal if you possess them without the prescription.
A controlled substance is any of the drugs listed in the Controlled Substance Act or Schedule of 1970. The schedule breaks these drugs into five categories:
- Schedule I – Schedule I substances are unsafe, have no therapeutic value, and regularly lead to abuse. They include Ecstasy, Peyote, LSD, Heroin, and M
- Schedule II – These are stimulants and narcotics that frequently result in abuse and cause severe physical and psychological dependence. They include Codeine, Methamphetamine, Percocet, Demerol, Methadone, Hydrocodone, Morphine, OxyContin, Dilaudid, Amphetamine (Adderall, Dexedrine), and O
- Schedule III – Schedule III are drugs that are less likely to lead to abuse but can result in high psychological and low or moderate physical dependence. Some examples are Tylenol with Ketamine, Suboxone, Codeine, and an Anabolic S
- Schedule IV – They have a lower possibility for abuse compared to Schedule III substances. These drugs include Versed, Soma, Valium, Klonopin, Xanax, Restoril, Halcion, and Ativan.
- Schedule V – Schedule V are drugs that contain the least quantity of narcotics. They include cough syrup with C
If you have a prescription and legally buy any of the substances above, you are deemed to have not violated the law, and you cannot be taken to court to answer any charges.
Elements of a Controlled Substance Charge
The aspects of criminal charges of possessing a controlled substance included three main things: actual possession, constructive possession, and joint possession. The legal definition of “possession” enables potential charges and defenses according to the different kinds of control and the mandatory proof needed to prove possession.
- Actual possession – It means the immediate and direct physical control of a controlled substance.
- Constructive possession – It means that the substance was not found on you but in an area that you control. For instance, if you are sitting on a chair, and there are substances on the table next to that chair, you will be deemed to own these drugs.
- Joint possession – When two or more people share either constructive or actual ownership, the law considers them to be joint owners of the substances. The officers use this classification when trying to make one individual state that the drugs belong to the other person.
In addition to the three elements, the prosecutor needs to prove that you were aware of the drugs. That means:
- You exercised control over the substance
- You knew the drug was there
- You knew it was a controlled substance
- You had enough quantity
The prosecutor should show that you knew about the drugs and intended to control or use them. Prosecutors often show this from the situations of the case, and they don’t need to have your statement confessing you used the drugs or even evidence that you used the drugs.
If the officer finds you with an insufficient amount of the controlled drug, the prosecutor might charge you with other crimes, such as possession of drug paraphernalia.
Misdemeanor or Felony Possession of a Controlled Substance Charge
The prosecutors might decide to charge you with a felony crime or a misdemeanor charge, depending on different factors. They include:
- Types of drugs – Drugs are classified into different schedules, depending on their additives and usefulness. Thus, you will face a felony charge if the officer finds you in possession of heavily regulated drugs. For example, methamphetamine is highly likely to lead to a felony charge since it’s more dangerous than Marijuana.
- Amount of drug – You can be charged with a felony possession if you have a high amount of a controlled substance.
- Intent – The prosecutor needs to show your aim to prove his or her case against you. Therefore, the intention will determine if you will face a felony charge or a misdemeanor one.
Federal and State Controlled Substances Laws
Note that the Controlled Substances Act is a federal law. What this means is that any state law that conflicts with the act cannot be adopted by a federal court. The US Constitution Supremacy Clause states that if there is a conflict between a federal and state law, the federal law takes supremacy over or preempts the state law.
However, every state is allowed to enforce the Act in its way, and some states have even stricter laws. A good number of the U.S. states have adopted the Act without making any change.
Therefore, in case you get arrested for having Marijuana, know that the Act will come into effect when you face charges - this means that cannabis is illegal in all U.S. states. The states only allow leniency in the use of Marijuana for medical purposes and in a small amount.
Types of Controlled Substance Possession Charges
What are the typical charges that you can face if police find you in possession of a controlled substance? They include the following:
Having Controlled Substance with Intent to Sell
It is a crime to possess a controlled substance with the intent of selling it. That means that you will be charged with a felony if you are found buying or possessing a controlled substance that you intend to sell.
Transport or Sale of a Controlled Substance
You will be charged with a felony if you are found transporting a controlled substance that you intend to import or sell. That crime leads to severe penalties if you are convicted.
It is a federal offense if you are found transporting a controlled substance across state lines.
Manufacturing a Controlled Substance
Another charge that you can face is the manufacturing of a controlled. The law prohibits you from making any unlawful narcotics or substance.
The law covers everything from compounding ingredients to mixing the final product. You can be charged with a felony if you are found to have violated the law and produced a controlled drug.
Material to Manufacture a Controlled Substance
The law makes it illegal to possess material for manufacturing a controlled substance. You could be charged with a felony offense and end up in prison or pay hefty fines.
Possession of Marijuana for Recreational Purposes
Smoking Marijuana is unlawful when you are inside your car or in places where tobacco use is prohibited, and other public places. Besides, you can be charged with a felony if an officer finds you with a certain quantity of Marijuana.
You might face different penalties if the court finds you guilty of having Marijuana:
- In jail for up to 6 months
- Paying a maximum fine of $500
- Both jail time and fine
Possession of Cocaine
There are law enforcement departments that deal exclusively with cocaine transportation, sales, and use. Every cocaine charge is treated as a felony crime and has severe consequences, including:
- Spending 2 to 4 years in prison for powder cocaine
- Spending 3 to 5 years in prison for crack cocaine
Obtaining a Controlled Substance by Fraud
It is illegal to acquire a controlled drug by fraud. The offense is widely referred to as “doctor shopping” and involves a person visiting different doctors, complaining of illnesses or severe pain, and getting a prescription for controlled substances, such as narcotic drugs, steroids, or psychotropic prescription medication from these doctors.
You might be acquiring these substances for your use or to sell to other people. Either way, you will be charged with obtaining controlled substances through fraud.
If the prosecutor charges you and the judge finds that you are guilty, you might end up paying a fine of up to $5,000, spend a maximum of 5 years in prison, or serve a five-year probation sentence.
Penalties for Possession of a Controlled Substance
The punishment for possessing a controlled drug depends on the category of the substance in the schedules. It is also subject to different factors, including the amount and type of drug, your criminal history, and the presence or absence of intent to sell.
The general punishments for possession of a controlled substance include:
You could end up in jail if the court finds you guilty of possessing a controlled substance. The sentence will depend on the drug and if you are a perennial crime doer.
However, imprisonment can vary from a few days in state jail to a maximum of 10 years in federal prison.
Many people charged with illegal possession of controlled drugs end up paying fines. The fine usually varies from as low as $100 to as high as $100,000 or even higher.
Drug Rehabilitation or Counseling
A court can also sentence you to a drug rehabilitation or treatment program instead of jail time. That program also forms part of probation for people serving a probation sentence.
Probation is usually ditched out in addition to other punishments like rehabilitation, imprisonment, and fines. It requires you to check with your assigned probation officer frequently and adhere to set rules, like avoiding drugs.
If you don’t follow these terms, you might end you facing jail time or the maximum punishment. Some of the standard terms imposed include:
- Violate no law – except a traffic offense
- Visit your assigned probation officer regularly – as stipulated by the court
- Attend drug diversion programs or counseling programs
- Perform community service
- Random drug testing
- Impose a minimum fine of $1,000 for a first-time offender
- Impose a minimum penalty of $2,000 for a second-time offender
These are just a few probation terms that a judge might impose. If you violate any of the probation rules, you could end up facing the maximum punishment permitted by the law.
Just like probation, a diversion program is mainly for a first time offender. It allows you to enroll in a behavior-changing program or seek counseling. You might also be required to comply with specific conditions for six months or more.
Possession of a controlled substance charge will go away when you complete the diversion program.
Although possession of controlled drugs is a misdemeanor offense, with favorable penalties like 12 months in county jail or a maximum fine of $1,000, you could be charged with a felony offense if your record shows a sex crime conviction. That can land you in prison for 16 to 36 months.
Juvenile Penalties of Possession of a Controlled Substance
When a person under the age of 18 years is in possession of a controlled substance, the prosecutor will take his or her case to a Juvenile Court. Hence, if your child is in a juvenile court for possessing drugs, take the necessary steps, and seek help from the Orange County Criminal Attorney Law Firm.
Common Defenses for Possession of a Controlled Substance
You might need a professional lawyer from Orange County to defend you in case you face charges of possession of a substance. The criminal defense attorney will know which defense to argues, depending on your specific situation.
Some of the common defenses include:
Illegal Gathering of Evidence
If you want to fight your charges on the merits, the easiest way to do this is to challenge the way the evidence was acquired. First, your lawyer will try to show that the officer did not justify the reason for stopping you – he or she lacked probable cause.
Besides, even if the stop was lawful, the resulting search that resulted in the discovery of the substance might not have been legal if the officer did not have probable cause to search. Your attorney can also argue that the officer did not have a search warrant to search your car or home.
That is often where possession of a controlled substance case is weakest. Generally, an officer “asks” to search in a way that you don’t have a choice. Allowing the officer to search your vehicle or home will mean that he or she can find anything and use it as evidence.
Lack of Constructive Possession
Many court cases of possession of a controlled substance fail due to lack of constructive possession. That means that the drug is assumed to be in your hand due to the circumstances, although it might be someone else’s.
For instance, if you hire a car to get some products and, upon being stopped by a police officer for speeding, the officer searches the vehicle and comes across some drugs starched somewhere.
Are these your drugs or do they belong to the car owner? That is a weakness that your lawyer can take advantage of and ensure that you walk free.
Proof of the Substance
The other weakness is the ability to prove that the substance is indeed a controlled drug. After all, you might have some herbs and not Marijuana – this is a colossal mistake that might land you in prison if you don’t have a qualified lawyer to argue your case.
Due to this, your lawyer will challenge the lab report stating that the evidence collected is a controlled substance. Challenging the result will leave the case in doubt, and the prosecutor will need to prove beyond any rational doubt that they are drugs and not any other herbs. That might also lead to additional expense and time that the court might not have.
To prove that your substance is a controlled substance will require the prosecutor to call the lab tech to come and testify during your trial. Besides, these dates keep on changing, and it might be difficult for the lab tech to show up at the required time, especially if he or she needs to testify in other cases.
You can legally have drugs such as OxyContin or Vicodin if you have a prescription from your doctor. That should also mean that you had just the required amount, as prescribed by your doctor.
You will need a defense lawyer to show that you are suffering from a condition that requires you to use these drugs. A qualified lawyer can easily prove that you had the prescription.
No Knowledge of the Substance
Your lawyer can argue that you did not know you had the controlled substance, or even you knew about the stuff but did not know they were drugs. You cannot be convicted if the prosecutor cannot show that you were aware of the substance, and you knew it was a controlled one.
You Wanted to Get Rid of Substance
The law allows you to possess a controlled substance for a while to get rid of it. However, this will not work if you only disposed of them to get rid of the evidence.
Your lawyer can argue your case to show that you had wanted to dispose of them as soon as possible, but the police caught up with you.
California Proposition 47 (Prop47)
Prop47 is a law that was passed by voters in 2014 to reduce the charges of possession of a controlled substance from a felony to a misdemeanor. With this in place, the sentencing of people convicted of possessing these drugs is now more favorable.
The proposition made the punishment to reduce, attracting more favorable sentences. This law made previously convicted persons send a petition to the judges for a resentencing.
FAQs – Possession of a Controlled Substance
Q: Is every drug a controlled substance?
No. Some drugs are pharmaceutical and not controlled substances. Some of the medicines in this group are pharmaceutical, including Atropine, Xylazine, and Donepezil. You can search the official website of the US Drug Enforcement Administration to see which drugs are pharmaceutical and which one is not. Also, check the label of the medicine to see if it bears the letter “C” and a numeral I to IV (like C-IV).
Q: Possession vs. sale or distribution
Depending on the situation, you might have been charged with possession of an unlawful substance but end up facing additional charges of possession with the purpose of delivery or sale. That is a more severe charge compared to having drugs for use, and you could end up facing severe penalties.
Q: How can a criminal attorney help in possession of a controlled substance case?
Most law firms offer a free consultation when you seek their service. Professional attorneys will deal with your criminal charges and help to seal your records. You can have a clean record if you choose a professional lawyer that can represent you effectively.
Find a Orange County Drug Attorney Near Me
Depending on the nature of your case, there are many defenses that your attorney can put forward to secure your freedom. One such argument is the unlawful search of your premises, car, or even lack of knowledge about the drugs. The only way these defenses will convince the court is if you have a professional lawyer represent you.
The Orange County Criminal Defense Attorney Law Firm has experienced lawyers that can help you prepare a strong defense. The law firm has been in practice for many years, and you can count on our lawyers to help you. Act now by calling 714-740-7848 to secure an appointment today.