13Drug possession is generally considered the least serious of drug offenses in many cases. It can be charged as an infraction, misdemeanor or felony depending on the drug or if it is marijuana, which has separate penalties for illegal possession.

Click here to find more about  types of federal drug charges that a lawyer can help with.

Possession of certain controlled substances carry certain penalties. These drugs include:

2.Heroin and opiate derivatives
5.Certain hallucinogens (LSD)
Possessing codeine or Vicodin without a valid prescription can also be charged as felony possession.


Some drug possession cases are charged as misdemeanors, which carry a possible jail sentence of up to one year in jail and a fine up to $1,000. For most first-time offenders and some other nonviolent offenders with a drug possession charge, you are typically offered drug diversion where your entry of judgment or plea is deferred and your charges dismissed once you complete a court-approved drug education course or other diversionary program.

If charged as a felony, the court could impose 16-months, 2 or 3 years in prison.

It is only an infraction if you possess no more than one ounce, or 28 grams, of marijuana. Possession of concentrated marijuana, however, is punishable up to one year in jail and a fine of $500. Concentrated marijuana is the separated resin of the plant. Examples are hashish and hashish oil and may include edible marijuana products.

You also face possible loss of your driver’s license for one year. If you are under 21, this is mandatory.

Defenses to Possession

Lack of physical possession
One argument commonly used is lack of possession. You can have physical or constructive possession of a drug. If you “ditched” a drug because you feared the police would find it, you may have abandoned it so long as no one testifies you were seen tossing it away and it ends up in a location where you do not have exclusive access.

Constructive possession14
Constructive possession means finding the drug in a container or area where you do have exclusive access or possession such as your desk or your own file cabinet. You may not be liable if you only possessed the drug temporarily to discard it and not to prevent law enforcement from seizing it.

Lack of knowledge
Borrowing someone else’s car that contains drugs or carrying a package for someone that contains illegal drugs may not render you culpable if you were unaware of them or that the drug was illegal, unless it is obvious.

Illegal search and seizure
Police commonly seize incriminating evidence while lacking probable cause to arrest someone or to search the person. Generally, the law requires police to have a search warrant to look in particular places for particular items. If the police neglect to obtain one, or lie about certain facts in the warrant affidavit to establish probable cause for its issuance, or search beyond the scope of the warrant, the evidence may deemed inadmissible.

Lack of a usable quantity
In some cases, the amount seized may be only a trace of a controlled substance or only some residue. Although a usable amount may not be enough to have any affect on a user, it could still be a “usable amount” if it is enough to be used by someone as a controlled substance. This is a question for a jury or judge as the trier of fact to determine.

Not every person facing a drug possession charge is eligible for drug diversion. A criminal conviction carries serious repercussions for your future.