Criminal Defense:
Possession

What Are Controlled Substances?

The federal government lists the various types of drugs it considers to be "controlled," that is, available (if at all) only through a valid prescription or other legitimate avenue. The federal scheme—contained in the Controlled Substances Act—divides controlled substances into five "schedules" of drugs, with the most dangerous substances in Schedule I and the least in Schedule V. This classification applies in federal drug cases, and many states have adopted the federal schedule. (21 U.S.C. §§ 801 and following.)

What Is Illegal Possession of a Controlled Substance?

Illegal possession of a controlled substance occurs whenever a person owns or otherwise possesses a drug or other controlled substance, without legal justification or permission. These charges usually apply when a person is found carrying marijuana, cocaine, methamphetamine, or other narcotics.

To convict someone of illegal possession of a controlled substance, the prosecutor must prove the defendant knowingly possessed the drug.

Knowledge of Possession

The crime of possessing a controlled substance occurs whenever a person knowingly or intentionally has control of a drug. However, the prosecution doesn't have to show that the accused knew that the drugs were controlled or that possession in this circumstance was illegal. Prosecutors only need to prove that the accused knew the drugs were present and intended to use or control them. Prosecutors can show this from the circumstances of the case, and they do not need to have actual statements from the accused or evidence that the accused actually used the drugs.

Possession

Possession means that a person has personal and physical control over the illegal substance. Courts have held that a person can have either actual or constructive possession over the drug. This means a person has it in a pocket or otherwise in personal custody (actual possession), or the person has control over and access to the drug, such as by having the drugs in a car's glove compartment, a bag, or hidden in the home (constructive possession).

A defendant can be convicted of possessing a controlled substance if the prosecutor can show the accused had at least partial control over the drug. For example, two roommates could each be convicted of possession if they shared an apartment in which the police found marijuana. However, prosecutors must show more than that the two were merely roommates in the same home, for example, by proving that each defendant had control over the drugs or made incriminating statements about them.

Possession Vs. Distribution or Sale of a Controlled Substance

Depending on the circumstances, someone charged with possessing an illegal drug might instead end up facing charges of possession with intent to distribute—a much more serious charge than simple possession. Intent to distribute charges can be based on the amount of drugs possessed—generally when the amount is too large for personal use. Other evidence tending to show intent to distribute drugs includes having large stashes of cash, packaging materials, or customer lists.

Possession of Drugs in Vehicles

Many possession cases arise from interactions between motorists and the police. In these situations, it's common for the police to find drugs in the car and charge the driver with possession. The police might also be able to charge the driver with possession if passengers are found with drugs on their person, or vice versa. However, even when the prosecutor can show that there were drugs in the car, the prosecutor must prove that the driver or passengers knew the drugs were there, or that they were near the driver or in plain view. Often, circumstantial evidence supplies this proof, which also shows that more than one person possessed the drugs.

Penalties for Possession of a Controlled Substance

Drug possession charges are subject to an incredibly broad range of penalties, depending on the state in which the crime occurs or if federal charges are involved. The severity of the penalty depends upon a number of factors, such as the specific type of drug involved, the circumstances surrounding the possession, and the criminal history of the person possessing the drugs. Penalties for possession of Schedule I drugs are the most severe and Schedule V the least severe.

• Fines. Many drug possession convictions result in fines. These can range from very minor fines of $100 or less to significant fines of $100,000 or more.

• Incarceration. Jail or prison time is also possible when a person is convicted of possession of a controlled substance. Jail sentences range widely depending on the crime charged, the type of drugs involved, and the state's laws, but can range from a few days or weeks to 10 years or more in prison.

• Probation. Probation sentences are often given in drug possession cases, and may be included with other punishments such as jail time, fines, or rehabilitation (such as drug treatment). A sentence of probation requires the convicted person to regularly check in with a probation officer and to comply with specific terms, such as not using any more drugs. If the offender fails to comply with the probation terms, a court can revoke probation and order the defendant to serve the jail or prison sentence.

• Diversion. Diversion programs are similar to probation and often used in first-offender drug possession cases. With diversion, a prosecutor allows a drug offender to enter into a counseling and behavior modification program, which requires the offender to comply with specific terms for a period of time, often six months or more. Once the offender completes the diversion program, the prosecutor agrees to drop the drug charges. If the offender fails to comply with the diversion terms, the prosecutor will pursue the possession charges.

• Rehabilitation. Many states allow courts to sentence a drug offender to a period of rehabilitation or drug treatment program instead of a jail sentence. Attending rehabilitation is also sometimes required in probation sentences.

Speak to The Bales Law Firm

If you're facing a drug possession charge, contact The Bales Law Firm. Possession charges often involve significant issues about whether the police acted legally when they found the controlled substance. The Bales Law Firm can advise you on your rights and the potential consequences of the charges against you. Even if the potential penalties for possession are not significant, a criminal record sticks with you and can affect your ability to get a job, housing, or occupational license.

Alabama Narcotics Laws

All states regulate and control the possession for personal use of controlled dangerous substances (CDS), though each differs in its exact definition of CDS and the penalties for possession. Alabama considers not only well-known drugs like marijuana, heroin, and cocaine to be controlled substances, but also the compounds used to manufacture them. Possessing drug paraphernalia, such as pipes, is also illegal.

Alabama divides its CDS into five "schedules," according to their degree of dangerousness:

• Schedule I drugs (such as opiates and certain opium derivatives and hallucinogenic substances) are those that have a high potential for abuse, no accepted medical use, or are unsafe for use in treatment, even under medical supervision.

• Schedule II drugs (such as coca leaves and opium) have a high potential for abuse, have an accepted medical use and can result in severe psychological and physical dependence if abused.

• Schedule III drugs (such as codeine and amphetamines) have a potential for abuse less than Schedule I or II drugs, have an accepted medical use and can lead to low or moderate physical dependence and high psychological dependence.

• Schedule IV drugs (such as barbiturates) have a lower potential for abuse than Schedule III drugs, have an acceptable medical use and may lead to limited psychological and physical dependence in relation to Schedule III drugs.

• Schedule V drugs are the least dangerous, with the lowest potential for abuse, a currently accepted medical use, and likely to lead to only limited physical or psychological dependence. Schedule V drugs include medicines that have very small amounts of specified narcotic drugs. (Alabama Code Sections 20-2-22 to 20-2-31.)

Some CDS such as codeine, a common pain medication, may be possessed legally so long as the holder has a valid prescription.

This information pertains to possession for personal use only. Separate punishments apply to possession for sale or for manufacture of controlled substances. 

Possession and Criminal Penalties

In Alabama, the criminal penalties depend on what type of CDS a person is convicted of possessing and whether the individual has a prior conviction.

Misdemeanors

Possession of marijuana for personal use (possession in the second-degree) is a Class A misdemeanor. Class A misdemeanors are punishable by no more than one year served in either the county jail or in hard labor to the county. For more detail, see Possession of Marijuana in Alabama.

Possession of imitation CDS is a Class C misdemeanor. Class C misdemeanors are punishable by no more than three months in jail.

The court may also impose a fine for misdemeanor convictions. Class A misdemeanors can result in fines of up to $6,000. Fines for Class C misdemeanors can be no more than $500. (Alabama Code 13A-5-7, 5-12.)

Felonies

Class C felonies are punishable by one to 10 years in prison and a fine up to $15,000. Class C felony possessions include:

• Possession of any CDS listed in Schedules I through V, unless otherwise authorized by law (a second possession of marijuana for personal use conviction elevates the crime to a Class C felony) .

• Obtaining CDS by fraud, deceit, misrepresentation, concealment of a material fact, or by altering a prescription.

• Possessing marijuana for other than personal use, such as sale (called possession in the first degree).

• Class B felony possession convictions result in stiffer penalties. They range from two to 20 years in prison and a fine of up to $30,000. Class B felony possessions include the possession, purchase, transfer, or distribution of anhydrous ammonia if the person knew or should have known that the anhydrous ammonia would be used to manufacture a CDS, namely crystal methamphetamine. (Alabama Code 13A-5-6, 5-11.)

Repeat or Habitual Offenders

Alabama imposes increasingly harsh penalties on individuals with prior felony convictions.

One prior felony conviction:

• A Class C felony possession is sentenced as a Class B felony.

• A Class B felony possession is sentenced as a Class A felony.

Two prior felony convictions:

• A Class C felony possession is sentenced as a Class A felony.

• A Class B felony possession is punishable by 15 years to life.

Three prior felony convictions:

• A Class C felony possession is punishable by 15 years to life.

• A Class B felony possession is punishable by 20 years to life.

(Alabama Code Section 13A-5-9.)

Know your rights by contacting The Bales Law Firm to discuss how we can protect your rights. 

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