Generally speaking, a controlled substance is defined as a chemical or drug whose use, possession or manufacture is regulated by the government. Examples of a controlled substance would be prescription medications that are designated as a controlled drug, or illicitly used drugs. However, there are exemptions to this definition. For some controlled substances their possession and use are legal, as long as, certain criteria are met. An example of this would be controlled medications that are being used during scientific research or are prescribed and being used under a doctor’s supervision. However, when an individual has no legal justification for possessing the controlled substance, the possession becomes illegal.
Controlled Substance laws vary by state, and in the state of Florida, if you are in possession of a controlled substance, even if it doesn’t belong to you, you are criminally liable for possessing the substance.
The US Department of Health & Human Services, the office of the US Food & Drug Administration’s Controlled Substances Act (21 USCA Sections 801 and following), details the federal scheme, including Drug Abuse Prevention and Control; Control and Enforcement; and five tiers of drugs, called schedules. Each drug is classified into one of the schedules with Schedule V being the least dangerous substances and Schedule I being the most dangerous. The schedule classifications apply to all federal drug cases and many states, in an effort to uncomplicate the issue, have adopted the federal schedule.
- Schedule I substances include:
- Opium Derivatives
- Hallucinogenic Substances.
- Schedule II substances include:
- Opium and Opiate, and any salt compound derivative or preparation of opium or opiate
- Any salt, compound derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in the above bullet point, except that these substances shall not include the isoquinoline alkaloids of opium
- Opium poppy and poppy straw
- Coca leaves
- Schedule III substances include:
- Narcotic Drug
- Anabolic steroids
- Schedule IV substances include:
- Chloral betaine
- Chloral hydrate
- Schedule V substances include:
- Any compound, mixture, or preparation containing limited quantities of narcotic drugs, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone
For a full, more specific listing of which controlled substances fall into each schedule of the federal law, review the Controlled Substances Act, specifically Section 812, which can be found at http://www.fda.gov/RegulatoryInformation/Legislation/ucm148726.htm#cntlsbb
If a person owns or is possession of a controlled substance or a drug, without permission or justification, that is considered to be illegal possession of a controlled substance. Typically this type of charge will occur with an individual is found carrying methamphetamine, marijuana, cocaine or other narcotics. If a person has a legal, medical prescription for a controlled substance, it is important that they carry their prescription with them when they are in possession of the drug. It is important to understand that possession charges are possible for some legally available prescription medications when the person possessing the controlled substance is not able to show proof of having a proper prescription.
There are certain elements of a crime that must be proven, by the prosecutor, to get a successful illegal possession of a controlled substance conviction:
- First, the prosecutor must prove that the person consciously and willfully had the controlled substance in their possession. It is not necessary for the prosecution to prove that the accused knew that the drugs were illegal to possess, they only have to prove that the person knew and intended for the drugs to be there. Prosecutors also do not have to prove or present any evidence regarding whether or not the accused used the drugs. A charge of Possession of a Controlled Substance has nothing to do with using the drugs and instead has everything to do with possessing them.
- Second, the prosecution will need to prove that the accused had either actual or constructive possession of the illegal substance. Actual possession means that the individual had the drug on their body, such as in their pocket or purse. Constructive possession would include situations where the drug is hidden inside their home or vehicle.
- It is also possible for the prosecution to charge the accused with Shared Possession. If the prosecutor can prove that the person had partial control over the drug, they can be still be convicted. Examples of this would include when there are multiple people in a vehicle or in a situation where people are sharing an apartment or home where drugs are found. In these situations, the prosecutors must prove that each person, individually, had control over the controlled substance. In the case of multiple people being in a vehicle where drugs are found, typically, the police will charge the driver with possession. Even if the drugs are found on the passengers of the car, the driver can still be charged. However, in this case, the prosecution would be required to prove that the drugs were in plain view of the driver or that the driver was aware of the fact that they drugs were there.
In some situations, charges of possessing an illegal drug are upgraded to possession with the intent to distribute, which is a significantly more serious charge than possession alone. Typically, the charges as based on either the volume of the drugs that are in the accused possession or the purity of the drug.
There is a wide range of possible penalties for drug possession charges which depends on a variety of elements including the state where the crime occurred, the accused’s criminal history, the type of drug that the person is found to be in possession of and the varied details of the specific possession. Possible penalties include: fines, incarceration, probation, diversion and rehabilitation.
If you are charged with the crime of possession of a controlled substance, it is important the you seek out a criminal defense attorney who is experienced in dealing with local law enforcement to get advice on your options. Quite often, possession charges can involve questions regarding whether the controlled substance was discovered by the police in a legal manner, which is something that an experienced lawyer will be able to correctly analyze. In the event that you are charged with this crime it is best to speak with legal counsel as expediently as possible.