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Drug Crimes/Possession

What is a Controlled Substance?

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. 

What Is Possession of a Controlled Substance While Armed?

Possession of a controlled substance can be defined as a crime that occurs when a person is in actual or constructive possession of a drug or some other substance that is deemed to be illegal under federal and state laws.

In general, a controlled substance is usually some sort of drug that poses a serious risk or threat to a person's health and wellbeing, such as drug addiction or abuse. Some examples of a controlled substance include heroin, cocaine, PCP, and methamphetamine.

A defendant who is charged with possession of a controlled substance while also in possession of a firearm can face very serious legal penalties. This likely means that the defendant was carrying drugs and a gun when they were arrested.

The reason why this crime is considered to be much more serious than simple possession of a controlled substance is because it may imply that the defendant was attempting to commit a further drug crime like drug trafficking or distribution.

However, this will depend on the quantity of drugs that a defendant was in possession of at the time of the arrest, whether the defendant has a criminal record, and/or the requirements prescribed by the relevant federal or state laws. A defendant who has been charged with this crime under federal law will most likely have to serve a prison sentence and pay hefty criminal fines if they are convicted.

Therefore, if you are currently facing charges for possession of a controlled substance while armed, then it is strongly recommended that you speak to a criminal defense attorney in your area as soon as possible. A qualified criminal defense attorney will be able to inform you of the consequences you may be facing, can find out whether there are any defenses you can raise against such charges, and can discuss the best way to proceed with your case.

What Are the Penalties for Possession While Armed?

The penalties that a defendant may face for possession of a controlled substance while armed can be rather severe since this is considered to be a very serious criminal offense. In most instances, possession while armed will be charged as a felony offense. Thus, the penalties that a convicted defendant can receive will likely involve serving some amount of time in a state prison facility and paying criminal fines of up to $10,000 or more.

While state criminal laws will often vary in their requirements and punishments for this particular offense, a defendant may face certain legal penalties under federal firearms laws. According to federal firearms laws, some legal penalties that a defendant who is charged and convicted of drug possession while armed can receive may include the following:

    • Up to an 87-month prison sentence if the defendant has a criminal record that includes a conviction for drug trafficking or a violent crime;
    • A mandatory minimum of 15 years imprisonment if the defendant is found to be a career criminal;
    • A term of no less than 5 years imprisonment in a standard case for carrying a firearm while in possession of enough drugs to find for drug distribution or trafficking; and
  • Monetary criminal fines of up to a maximum of $250,000.

Are There Any Defenses to Possession of a Controlled Substance While Armed?

There may be several legal defenses available to a defendant who has been charged with possession of a controlled substance while armed. Some examples of defenses that a defendant might be able to raise against such charges may include the following:

    • Proving that the controlled substance which the defendant was in possession of when they were arrested is not considered a controlled substance under the law;
    • Submitting evidence that law enforcement officers discovered the drugs and firearm after conducting an illegal search of the defendant's person or property;
    • Claiming that the defendant did not have a firearm when they were in possession and arrested for possession of a controlled substance, or that the object the defendant was carrying when they were arrested was not an actual firearm;
    • Raising the fact that the prosecutor lacks sufficient evidence or has failed to satisfy the burden of proof required for the defendant to be convicted of the charges; and
  • Demonstrating that the firearm was not loaded when the defendant was arrested for possession of a controlled substance (note that this defense is not available in every state).

In addition, certain states have laws that permit a defendant to request that a court issue an alternative sentencing option as punishment. An alternative sentencing option may include performing community service work, checking oneself into a rehabilitation center, or serving a prison sentence under house arrest, as opposed to in a state or county jail facility. While not exactly a defense, these options can serve to reduce the severity of the punishment.

Whether or not an alternative sentencing option will be available to a defendant will depend on a number of different factors, such as:

  • The nature of the crime;
  • The facts or circumstances surrounding an individual case;
  • The criminal history of a particular defendant; and
  • The laws adopted by the state in which the defendant was convicted.

These same factors can also be applied when determining whether a defendant will face federal gun and drugs charges. For example, a defendant will likely be charged with commission of a felony crime if the prosecutor can prove they intended to distribute, sell, or transport the drugs that were in their possession beyond a reasonable doubt. The type and quantity of drugs or controlled substances can also affect the level of offense with which a defendant is charged.

A defendant may also face felony gun and drugs charges if they were arrested for possession of a controlled substance while armed and are considered to be a repeat offender. The reason for this is because persons who have previously served time in prison are generally prohibited from owning, possessing, or using firearms.

What are Felony Drug Charges?

Generally speaking, felony drug charges are more serious drug crimes. Under state and federal criminal laws, felony charges typically result in a sentence in prison for greater than one year, along with serious criminal fines. In contrast, misdemeanor charges will usually result in a sentence in jail (not prison), and lower criminal fines. Thus, felony drug charges typically result in more serious criminal penalties.

When it comes to drug charges, the difference between a felony charge and a misdemeanor charge will depend on various factors. These may include:

  • The amount of drugs involved;
  • The type of drugs involved; and
  • Whether the drugs were being sold or trafficked.

One of the biggest questions people have is: is drug possession a felony? To answer, drug possession can be a simple misdemeanor if it involves only small amounts being possessed for personal use. In comparison, possession of large amounts of the same type of drug may result in felony possession charges. 

In most cases, selling, trafficking, or distributing drugs is classified as a felony under most state laws. This is because there is a potential for more people to be harmed or affected by the distribution of the drug. In some instances, possessing over a certain amount of a drug may lead to the conclusion that the person intended to sell the drugs, not merely possess them for personal use.  

What are Some Examples of Felony Drug Charges?

Felony drug charges can involve a wide range of conduct. Some common examples of felony drug charges may include:

  • Possession of a Controlled Substance: Possession of certain amounts of drugs may result in felony charges. The amount and type of drug will depend on federal and state laws. For instance, for some drugs such as marijuana, a high amount is needed for a possession felony charge. For other drugs such as crack cocaine, lesser amounts are needed to trigger a felony charge;
  • Selling Drugs: Selling drugs may result in felony charges as well. As mentioned, possession of large amounts of some substances may lead the police to assume that the drugs were being held for the purpose of selling them (“possession with the intent to sell”);
  • Trafficking Drugs: Drug trafficking involves the transport of drugs or illegal substances. This might not necessarily involve the sale of them; however, transporting them can lead to felony charges, especially if large amounts are being moved. Penalties may also increase if the drugs are being trafficked across state lines.

As mentioned, the type of drug can also determine whether a drug crime is punished as a felony. Drugs are categorized into classes known as “Schedules”. Schedule I drugs are substances that pose high risks and have little potential for medical applications. 

Schedule V drugs are substances that have lower risks and more potential for different applications. Possession of a Schedule I drug or substance can frequently lead to felony drug charges

What are the Consequences of Felony Drug Charges?

As mentioned, felony charges, even first offense felony drug charges, will lead to serious criminal punishments. These will involve at least one year in prison and higher criminal fees. For instance, a possession felony drug conviction may result in 2 years in prison and a criminal fine of several thousand dollars.

The exact amount of fines and the exact prison sentence length will depend on several factors. These include the amount possessed or sold, and they type of substance involved. It may also depend on whether the person is a first-time offender or a repeat offender. 

For instance, first-time drug crimes can range from 1-3 years in prison, with fines ranging from $500 to several thousand dollars. Repeat offenders may face 3-15 years in prison and much higher criminal fines. Again, this depends on each individual case.

Are There Any Immigration Consequences for a Felony Drug Charge?

Besides prison sentences and fines, felony drug convictions can lead to other consequences. For instance, a person's immigration status can be severely affected by a felony drug charge. Depending on the case, some felony drug crimes can be considered “crimes of moral turpitude”, especially if the crime involved violence or threats to public safety.

In such cases, the defendant may face deportation or removal, and may have their green card revoked. In the case of a habitual offender, they may be prohibited from re-entering the U.S. in the future. These types of cases may require the assistance of an attorney who is well-versed in both criminal and immigration laws, and knows how the two areas of law interact. 

Can a Lawyer Help me with Controlled Substance Charges?

Charges involving controlled substances can lead to very serious legal consequences if a person gets convicted. This is especially true in cases where the person was carrying a firearm or another type of weapon when they were arrested on controlled substance charges.

A person who is charged with the crime of possession of a controlled substance while armed and is convicted will likely face penalties reserved for a felony offense, such as prison and criminal fines.

Thus, if you have been arrested and are currently facing charges for a controlled substance offense, then it may be in your best interest to consult a local drug lawyer for further legal advice. A lawyer who has experience in handling drug-related cases can advise you of your legal rights and options as provided by the criminal laws in your particular jurisdiction.

In addition, your lawyer will be able to ensure that your rights as a criminal defendant are protected by providing legal representation in criminal court and/or at any other legal proceedings associated with your case like motion hearings, appeals, or negotiations for a plea deal. Your lawyer will also be able to conduct legal research on whether there are any defenses you can raise against your controlled substance charges.

Finally, if you need assistance with an appeal, would like to request an alternative sentencing option, or simply have questions about controlled substance charges and your case, your lawyer will be able to perform all of these legal tasks on your behalf as well.  

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