Possession of Controlled Substance

1. What is considered possession of a controlled substance?

Possession of a controlled substance involves having illegal drugs or prescription medications without a valid prescription. Possession can be actual (on your person) or constructive (within your control, such as in your home or vehicle).  If you are charged with possession of a controlled substance, the charge is based upon something other than marijuana.  Texas breaks out marijuana offenses separately from other controlled substance crimes.  

2. What are the different types of controlled substances?

Controlled substances are classified into schedules based on their potential for abuse and medical use:

  • Schedule I: High potential for abuse, no accepted medical use (e.g., heroin, LSD).
  • Schedule II: High potential for abuse, some medical use (e.g., cocaine, methamphetamine, oxycodone).
  • Schedule III: Moderate to low potential for abuse (e.g., anabolic steroids, ketamine).
  • Schedule IV: Low potential for abuse (e.g., Xanax, Valium).
  • Schedule V: Lowest potential for abuse (e.g., cough preparations with less than 200 milligrams of codeine).

3. What are the penalties for possession of a controlled substance?

Penalties vary based on the substance’s schedule, the amount, prior offenses, and jurisdiction but can include:

  • Fines
  • Jail or prison time
  • Probation
  • Drug education or treatment programs
  • Community service
  • Driver’s License Suspension

4. Can possession charges be reduced or dismissed?

Charges can be reduced or dismissed through plea bargaining, demonstrating lack of evidence, unlawful search and seizure, or participation in diversion programs. If this is your first time interacting with the criminal justice system, it is entirely possible that a simple possession charge can be reduced or dismissed depending upon the nature and quantity of the drug.  Sometimes it is simply a matter of showing that you had a valid prescription at the time of the offense, for the pills of Xanax that are in your possession but not in the prescription bottle.  

5. What are common defenses against possession charges?

Like most criminal cases, an experienced attorney will look at a lack of probable cause for the search, an unlawful search or seizure, a lack of evidence – no lab test results confirming the nature of the substance, having a valid prescription at the time of arrest for the substance at issue, and other legal theories and factual deficiencies.  

6. What should I do if I’m arrested for possession of a controlled substance?

As always, don’t get into an argument with the officer at the scene, remain calm, and exercise your right to remain silent, and request an attorney. Nothing can hurt your defense more than acting out against the office, getting angry, or throwing a tantrum on the side of the road or in the patrol vehicle.  Unless you are a chemist with a gas chromatograph, you DON’T KNOW what the substance is standing there on the side of the road.  As such, do NOT answer any questions related to what type of drug is the pill/powder/liquid.  

7. What is the difference between possession for personal use and possession with intent to distribute?

Possession for personal use involves having a small amount for personal consumption, while possession with intent to distribute involves larger quantities, packaging, scales, or other evidence indicating intent to sell or distribute the drugs.  It is important to understand that the more of a substance that you possess, the greater the punishment range.  Further, in Texas, there are presumptive amounts, based upon grams for most drugs, that will take you from a simple possession charge to possession with intent to deliver.  

8. Can I get a diversion program for my possession charge?

Depending upon the county where you were caught, there may be a variety of diversion program options.  Some of those programs, such as a DWI/Drug Treatment Court program may offer reduced charges upon completion of the program, while others such as a Veterans Treatment Court, may offer a dismissal and expunction upon completion.  Again, it depends upon your jurisdiction, and the exact nature of the charge.  

9. What is constructive possession?

Constructive possession means having effective control over a substance without physically having it on your person. For example, drugs found under the passenger seat in a car and you are sitting in the passenger seat can lead to constructive possession charges.  Similarly, if you are the driver and there are folks in the backseat, and drugs are found in the back seat, you can argue that they are not yours.  

10. Can a possession charge affect my immigration status?

Yes, drug convictions can have serious immigration consequences, including deportation or inadmissibility. It’s crucial to consult with an attorney who specializes in immigration law if you’re not a U.S. citizen.  

Conclusion

Possession of a controlled substance is a serious charge with potentially severe consequences. Understanding your rights, the legal process, and seeking experienced legal representation is crucial for navigating these challenges effectively.