Possession of a Controlled Substance
What is a controlled substance? What does it mean for you if you are found with that substance? What are the penalties?
The definition of possession of a controlled substance is having in one’s possession a drug that has been declared by state or federal law to be illegal for sale or use without a physician’s prescription. If a person is found possessing such a substance, including cocaine, marijuana, methamphetamine or any other narcotics, without a prescription, he or she may be charged with illegal possession of a controlled substance.
Being found with a controlled substance can have serious penalties resulting in substantial fines and imprisonment. It is important to learn about what the law says about this charge and then to speak to an attorney about your options.
This article answers your questions, and tells you what you should do next.
What is a Controlled Substance?
A “controlled substance” is a fancy word for drugs that are only legal to have in your possession if a medical professional has written you a prescription for them (doctor, physician assistant, optometrist, dentist, etc.). The exact wording of the law states that if you “knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from, or pursuant to, a prescription or order”, you have possession of a controlled substance (sometimes called a “PCS”), which is a felony under Nevada law.
The Nevada Code that outlines the legal nature of controlled substance possession and the punishment for it is called NRS 453.336, which outlines what it means to have drugs in your possession that are not prescribed to you, and which you are not trying to sell. If you possess a drug with the intent to sell, that is a different charge.
There are many kinds of controlled substances. What we just described (controlled substances that require a doctor’s prescription) are legal prescription drugs, but are illegal to have if the prescription is not written out to you. But controlled substances also cover illegal drugs such as cocaine, heroin, ecstasy, and methamphetamine (aka Meth).
So what does it mean to be found possessing a controlled substance? Many people think that the police or authorities have to find the drugs carried on you. That is only one of three different cases where you can be found “in possession” of a controlled substance. All three of them include:
- Actual – The drugs are found on you physically
- Constructive – The drugs are found in a place that you have control over (your car, home, backpack)
- Joint – A place where you and another person have possession over jointly (home, apartment). In these cases, a spouse is often charged when they know drugs are being stored in the home and are not doing anything about it.
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What does it mean for you if you are found with that substance?
You may wonder if this felony applies to you. You may have had this controlled substance in your possession without your knowledge, or you may feel that the police did an illegal search, which is possible. If the police search without a warrant or probable cause, a good criminal defense attorney will argue to have the evidence thrown out. These and other nuances of every controlled substance case are exactly why an attorney should get involved as quickly as possible.
There are different aspects of your controlled substance charge that will be outlined here:
- Whether or not you have been convicted of a drug offense previously
- The type of drug you possessed
The good news is that if you have never been convicted of drug charge in the past then a good criminal defense attorney should be able to effectively argue to get your case reduced to a lesser charge or dismissed completely. In return for a favorable resolution, the court may require you to attend a drug class and/or pay a fine as well as stay out of trouble during the pendency of your case.
The type of drug you are found in possession of also determines the sentence and/or fine you’ll receive. Controlled substances are divided up into Schedule I, II, III, and IV. Schedule I substances are the worst to have in your possession without a prescription, schedule IV are the least serious to be found possessing. Here are some examples of substances that fit into these categories:
Schedule I – Ecstasy, Heroin; Schedule 2- PCP, GHB (date rape drug). This is a category b felony, and you can face 1-6 years in prison. Please note that marijuana is listed as a schedule 1 drug, however, the ordinary penalties for possession of a schedule 1 drug do not apply to possession of marijuana. The penalties for possession of marijuana are less harsh but are still very serious depending upon the amount a person possessed (see NRS 453.336).
Schedule II – Cocaine, Oxycodone “OxyContin”, Ritalin, Adderall, Hydrocodone
Schedule III – Steroids
Schedule IV – Xanax, Ambien, Valium
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Penalties of controlled substance possession
The penalties of possession of controlled substance depend upon whether or not you have previously been convicted of having possession of a controlled substance.
The following is a list of the different penalties you could face depending upon whether or not you have previously been convicted of drug possession.
A first or second offense is a Category E Felony, which means you could face 1-4 years in prison. However, a first offense is often probationable, which means you may avoid prison and a conviction if your defense attorney can negotiate a drug treatment/rehab program for you. Additionally, a good criminal defense attorney will argue to prevent any additional jail time from being imposed as part of your probation.
Three or more offenses are a Category D Felony, which means 1-4 years in prison, along with a fine of up to $20,000.
There is such thing as a Schedule V drug, and that includes drugs such as Robitussin, Opium, and Demerol. The first offense is a Category E Felony where 1-4 years in prison can be served, but again a good criminal defense lawyer will likely be able to get the charge reduced or dismissed with probation.
A second possession of Schedule V drugs is a Category D Felony and leads to 1-4 years in prison along with up to a $5,000 fine.
So what about drug paraphernalia? You may not have been found with the drug itself, but with the pipe, for example. This is a completely separate charge from a controlled substance charge and is a misdemeanor (not as serious as a felony).
If you are an illegal alien and have been found in possession of a controlled substance, this can lead to deportation. This is why it is very important to have a good criminal defense attorney get started on your case as early as possible.
In conclusion, if you have been found possessing drugs or narcotics of any kind, and especially if you have been charged with this before, it is time to get help as quickly as possible. Please contact our office to schedule a free consultation so that we may be able to get your case reduced to a lesser charge or dismissed.