What is considered drug possession?

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Laws have been created at both the federal and state level which make the possession of drugs a crime. However, what being charged with “drug possession” means can vary from state to state, as a drug lawyer San Francisco, CA trusts knows well. In this article, we’ll walk through what is typically considered a drug possession charge.

What is considered an illegal drug?

Drug possession means that you have in your possession illegal drugs – whether it is on your person at the time of arrest or it is in your house. Most illegal drugs are controlled substances – or drugs that are monitored by the Drug Enforcement Administration. However, they become illegal when they are misused, used without a subscription, or mixed with something to alter the effect. A controlled substance is categorized based on the following criteria:

  • Patterns of abuse
  • Risk of developing a psychological or physical dependence
  • The risk to public health
  • The amount of information available about how the drug affects a person
  • The potential for the drug to be abused

Illegal drugs include heroin, cocaine, methamphetamines, LSD, ecstasy, and for the vast majority of the country, marijuana. According to the criteria listed above heroin, LSD, marijuana, and ecstasy are Schedule 1 drugs or those that have the highest rate of abuse or dependency, while cough medicine is classified as Schedule 5.

Proving Drug Possession

Even though drug possession laws vary from state to state, the prosecution still needs to generally prove the same thing no matter where you are living. First, they must prove that you knew that the drug was illegal or a controlled substance. Second, you have to have been actively aware that you were taking into your possession a drug that is considered illegal. This prevents people from being prosecuted if they had no knowledge of the illegal drugs.

Possession doesn’t just mean that you were found with illegal drugs on your person at the time of arrest i.e. the police officer either saw you physically using the drugs or when they searched your person you had them on you. It also includes “constructive possession” which means the drugs could have been in your car or in your home.

Drug Possession Laws

As mentioned earlier, drug possession laws vary from state to state so it is important that you understand the law of the state in which you live. Drug laws are constantly changing. In some states, marijuana is now legal for recreational and medical use – however, it is still a federal crime. Be sure to check state and local laws before indulging in any recreational drug.

Generally speaking, drug laws are divided into personal use and intent to distribute. Were you only using the drugs for yourself or did you plan on selling them to others? The latter has much higher penalties – potentially high fines and up to life in prison – in order to keep drug dealers off the streets. Drug paraphernalia including syringes, crack pipes, and bongs also apply to drug possession laws to determine the primary use of the drugs. There are a wide variety of drug possession charges so make sure you know the laws of your state.



Thank you to our friends and contributors at Morales Law Firm for their insight into drug possession and criminal defense.