Federal Drug Possession

While federal law-enforcement officials generally target their drug-enforcement activities on suspected drug traffickers, it is illegal under the Controlled Substances Act to merely possess illicit drugs.

The Controlled Substances Act makes it illegal for any person to knowingly or intentionally possess a controlled substance unless with same was obtained pursuant to a valid prescription.

First-time drug offenders may face a term of imprisonment—not to exceed one year—and can face a fine of $1,000 for simple possession of a controlled substance.

If a person charged with possession of a controlled substance has a prior conviction for any drug, narcotic or chemical offense, a mandatory minimum sentence of at least 15-days’ imprisonment must be imposed, however, a judge can order a term of imprisonment of up to two years and can fine an offender with one prior conviction $2,500.

Under the Act, even if a person has no federal criminal record, prosecutors can use convictions under the laws of any state to establish that a person has a prior drug conviction. That means that if, five years ago, a person pled guilty to simple possession of marijuana in Mecklenburg County District Court, that conviction will be considered a prior offense if the same person faces a new federal drug charge anywhere in the United States, and the person will be subject to the enhanced penalties that accompany a record of one prior conviction.

Offenders found guilty of possession of a controlled substances who have two prior drug convictions face even stiffer penalties. The mandatory minimum drug-possession sentence for an offender with two prior drug convictions is 90-days’ imprisonment. A judge, in his or her discretion, can sentence an offender with two prior convictions to a sentence of three years. The judge must fine the offender a minimum of $5,000, but is authorized to impose a greater fine if the circumstances warrant.

Judges do not have the authority to waive or deviate from mandatory minimum sentences for possession offenses. Aside from fines and imprisonment, persons convicted of drug possession shall be ordered to pay the costs associated with investigating and prosecuting their offenses. Judges do have the authority under the Act to waive the imposition of these costs if the accused lacks the ability to pay.

Depending on the circumstances of a given case, a person accused of simple drug possession may be able to offer a defense or evidence showing that he or she did not knowingly possess a controlled substance. The government bears the burden of proving, beyond a reasonable doubt, that the substance in question was a controlled substance, that the accused knew that the substance was a controlled substance, and that the accused possessed the substance.

These elements may seem simple, but the facts in a given case may provide opportunities for an accused to poke holes in the government’s case and to prove one’s innocence.

With the assistance of an experienced criminal defense attorney, a person accused of drug possession can demand that the government offer proof that the substance seized by law-enforcement officers was a controlled substance.

In a series of recent cases, the United States Supreme Court has ruled that persons accused of drug crimes have the right, under the Sixth Amendment to the Constitution of the United States, to confront—or cross examine—the chemist or laboratory technician who tested alleged contraband. This right of confrontation, when exercised, can be crucial in a drug possession case.

If the government has failed to follow proper protocols in the testing as well as safeguarding and chain-of-custody of alleged contraband, these issues could result in dismissal of claims against an accused.

Depending on the identity of the substance an accused was alleged to possess, it may or may not be reasonable to presume that a person in possession of a substance knew or reasonably should have known its precise chemical makeup.

The government must prove that a person “knowingly” possessed a controlled substance. If the facts show that a person possessed a substance but did not or could not have known that it was a controlled substance, the person cannot be found guilty of criminal drug possession.

Finally, the government must prove that a person “possessed” a controlled substance. This element can be simple in some possession cases, where for instance contraband is found in a person’s hand or in a person’s pocket.

What if, however, contraband is found in the trunk of a person’s car? What if contraband is found under the passenger seat of a person’s car where a friend had been sitting the previous evening? What if contraband is found in a person’s trash can at the foot of one’s property?

The facts that underlie these and countless other scenarios can be used by the government and by accused to prove guilt or innocence. The most important step a person charged with drug possession can take is to hire an experienced criminal defense attorney who can explore the circumstances of one’s case, flesh out one’s best defenses, and convince a court that the government cannot prove its case beyond a reasonable doubt.

The federal government takes drug enforcement seriously, and it employs a team of top-notch investigators and attorneys to prosecute federal drug crimes—including drug possession crimes. Securing the assistance of an experienced criminal defense attorney in your case can not only level the playing field, it can mean the difference between winning and losing your case.

If you or someone you know has been charged with drug possession, give one of the experienced criminal defense attorneys at Arnold & Smith, PLLC a call today at (704) 370-2828.