Penalties for Drug Possession

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Penalties imposed for drug possession vary widely from state to state. Imposed penalties will also depend on the type of drug possessed, the amount possessed, whether the individual has prior convictions, or whether the individual is on parole or probation. Since possession of a large amount of illegal drugs can be considered as circumstantial evidence of intent to distribute, this factor alone can lead to hefty prison sentences.

Possession with Intent to Distribute

A simple possession charge can quickly rise to the level of “possession with intent to distribute.” This is especially the case if other circumstantial evidence related to drug packaging or measuring equipment is available. Even the presence of drug paraphernalia can be a part of the prosecution’s case, potentially reducing the absolute quantity of drugs that would otherwise be necessary in order to create a convincing inference of intent to distribute drugs.

Drug Schedules

Federal and state governments classify drugs in categories called schedules. These classifications are based on how addictive or harmful the drug is, and the penalties for possession will generally go up based on these classifications. Most states follow the federal government’s system of classification. With a few exceptions, drugs available through a prescription are generally in the bottom four classifications, while drugs that are always illegal, or “street drugs,” are generally classified as a Schedule I drug.

Laws on Possession of Cocaine, Heroin and Other Substances

Penalties for possession of other controlled substances, such as cocaine, meth, heroin, crack, LSD, ecstasy, or illegally possessed prescription pills, are generally charged as felonies, no matter the amount of drugs possessed. The sentences imposed for these felonies can range widely depending on the jurisdiction, and even the drug. Some states impose sentences for possession conviction from one to three years, while others impose much heftier sentences. Multiple offenders convicted of possession of even a small amount of these types of drugs can be sentenced to a prison term for the rest of their lives.

Penalties can also depend on the type of drug. For example, the penalties for possession of crack cocaine are generally harsher than the penalties for powdered cocaine. Under federal law, the penalty for the possession of five grams or more of crack cocaine is a mandatory five years in prison. On the other hand, the possession of five grams of powdered cocaine under federal law carries no mandatory minimum. 

Drug Diversion Programs

Many states also now have drug diversion programs. Some states even have special court divisions just for first time drug offenders, with the goal of avoiding a conviction and counseling and treating people so they can avoid drug problems.  If an individual is charged with simple possession of narcotics, he or she may qualify.

Typically, diversion programs don’t apply to charges for sale or distribution of drugs. It also must be the individual’s first offense, and s/he cannot have been subject to a diversion program before.

Getting Help

Penalties involve probation, drug counseling, possible community service and sometimes a driver’s license revocation. The individual may receive a restricted license under diversion programs for work, medical, education and several other purposes. The decision to enter into a diversion program should be discussed very carefully with a lawyer. You can find access to a free case evaluation from a competent criminal attorney at the link.

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