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POSSESSION OF A CONTROLLED SUBSTANCE

Vacationers and locals alike seek to enhance their Las Vegas experience with recreational drugs, but few realize that possession of a controlled substance is a serious offense and can result in substantial criminal penalties. Read below the learn about this charge.

WHAT ARE CONTROLLED SUBSTANCES?

In simple terms, controlled substances are drugs which are either completely illegal to possess or are illegal to possess without a valid prescription. These include all of the well known "street drugs" such as heroin, methamphetamine, marijuana, cocaine, ecstasy, LSD, and many others, as well as prescription drugs like Xanax, OxyContin, Adderall, and many others. Controlled substances may be narcotics, depressants, stimulants, anabolic steroids or hallucinogens.

For practical purposes, controlled substances are simply drugs that are included in one of several "schedules" created by the government. A schedule is simply a list. You may have heard of "schedule I drugs" or "schedule II drugs." In fact, there are five separate schedules for controlled substances.

What determines whether a controlled substance is Schedule I, Schedule V, or somewhere in between? The schedules were created by Congress, and the Drug Enforcement Administration ("DEA") and the Food and Drug Administration ("FDA") have the power to add to or subtract from the schedules. The rationale behind placing any given substance into a particular schedule is based upon the substance's "potential for abuse" and whether or not the substance has any known legitimate medical uses.

In Nevada, scheduling of drugs is determined by the Nevada State Board of Pharmacy (the Board) and a specific list is maintained in Chapter 453 of the Nevada Administrative Code. Although Nevada has wholly adopted the federal Controlled Substances Act, they still have the ability to place greater restrictions on drugs than the federal government. For example, in the case of Methamphetamine and Cocaine, the federal government has classified the drugs generally as Schedule II drugs, whereas Nevada has classified street Methamphetamine and Cocaine as Schedule I drugs and doctor-prescribed Methamphetamine and Cocaine as a Schedule II drugs.

Schedule I substances are ones with a "high potential for abuse" and no "currently accepted" medical uses. Doctors may not write prescriptions for these substances. Schedule I substances include the following: Cocaine, Methamphetamine, Heroin, LSD, DMT, GHB, Marijuana, MDMA ("Ecstasy"), Mescaline, Quaaludes, and psychedelic mushrooms. For a more complete list of schedule I drugs, click here.

Schedule II substances also have a high potential for abuse, but they have some currently accepted medical use. These substances can be prescribed by doctors, often under limited circumstances. These substances include doctor-prescribed Cocaine and Methamphetamine, PCP, Oxycodone, Morphine, Opium, Fentanyl, Demerol, Adderall, and Vyvanse. For a more complete list of schedule II drugs, click here.

Schedule III substances have less potential for abuse than the previous schedule substances (due to their relatively lower potential for physical dependence) and have current accepted medical uses. Like schedule II drugs, these substances can be prescribed by doctors. These include anabolic steroids, Ketamine, and Marinol. For a more complete list of schedule III drugs, click here.

Schedule IV substances have a relatively low potential for abuse relative to schedules I through III due to their limited potential for physical or psychological dependence. These substances can be prescribed by doctors. These include Soma, Tramadol, and benzodiazepines such as Xanax, Librium, Klonopin, and Valium. For a more complete list of schedule IV drugs, click here.

Schedule V controlled substances have lower potential for abuse than the previous schedules and some may be dispensed for medical purposes without a prescription. These include cough suppressants that contain small amounts of Codeine. For a more complete list of schedule V drugs, click here.

There is much debate about the classification of many controlled substances. For instance, many people believe that Marijuana has legitimate medical uses and therefore should not be a Schedule I drug. Other people may argue that benzodiazepines such as Xanax have a high potential for physical and psychological dependence and should therefore be schedule II drugs. However, if you are charged with possession of a controlled substance, none of this debate matters. Read below about the elements of possession of controlled substance.

POSSESSION OF CONTROLLED SUBSTANCE DEFINED

Chapter 453 of the Nevada Revised Statutes is called the Uniform Controlled Substances Act ("UCSA"). The UCSA was written by the United States Department of Justice ("DOJ") and has been adopted by every state, including Nevada.

NRS 453.336(1) makes it illegal for a person to knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from, or pursuant to, a prescription or order of a physician.

Possession may be actual or constructive. Actual possession is simple. To actually possess a controlled substance, you must physically have it on your person. Constructive possession is more complicated. To be in constructive possession of a controlled substance, you must exercise "dominion and control" over the substance. For example, a person may exercise dominion and control over a controlled substance if he stores the substance in a safe to which only he has the combination. In Nevada, joint possession is a type of constructive possession that allows multiple individuals to be charged with possessing drugs. For example, if drugs are found in the center dash of a car or in a common area of an apartment in plain view, multiple individuals in the car or apartment may be charged with possession of controlled substance.

POTENTIAL PENALTIES

The potential punishment for possession of a controlled substance depends upon the schedule that the drug falls into and whether the accused person has prior drug convictions.

Under NRS 453.336(2)(a), a first and second offense of possession of Schedule I, II, III or IV drugs is a Category E felony. A Category E felony is a mandatory probation offense. This means that although the underlying sentence may be 1 to 4 years, the judge must suspend that sentence and place the convicted defendant on probation. However, even though probation is mandatory, the judge may sentence the defendant to up to one year in county jail as a condition of probation. Additionally, Category E felonies carry a potential $5,000 fine.

Under NRS 453.336(2)(b), a third and subsequent offense of possession of Schedule I, II, III or IV drugs is a Category D felony, punishable by 1 to 4 years in a Nevada prison as well as a $20,000 fine.

First offenses for possession of Schedule V drugs are Category E felonies. Second and subsequent offenses for Schedule V drugs are Category D felonies, punishable by 1 to 4 years in a Nevada prison and a $5,000 fine.

Nevada law doles out particularly harsh punishments for certain Schedule I drugs. Under NRS 453.336(3), possession of GHB or Rohypnol ("roofies") is a Category B felony, punishable by 1 to 6 years in Nevada prison.

On the other hand, possessing small amounts of Marijuana, also a Schedule I drug, carry relatively lenient punishments. Under 453.336(4), for a first offense, possession of 1 ounce or less of Marijuana is a misdemeanor, punishable by a fine of not more than $600. The court may also order the defendant to attend a drug rehab program. A second offense is also a misdemeanor, punishable by a $1,000 fine and drug rehab. A third offense for possession of less than an ounce of Marijuana is a gross misdemeanor, punishable by up to one year in county jail and a $2,000 fine. A fourth or subsequent offense is a Category E felony, punishable by 1 to 4 years in Nevada prison, although that sentence must be suspended and the convicted person must be placed on probation.

DEFENDING POSSESSION OF CONTROLLED SUBSTANCE CASES

If you have been charged with possession of a controlled substance, you should call a criminal defense lawyer to discuss possible defenses for your case. Remember, to convict you of this or any crime, the prosecutor must prove every element of the alleged offense beyond a reasonable doubt.

There are many common defenses to possession for controlled substance. For example, you may not have knowingly or intentionally possessed a controlled substance if you did not know it was a controlled substance. You also may have had a valid prescription for the controlled substance. Or you may not have been in actual or constructive possession of the controlled substance. Many times, a whole group of people will be arrested and charged with possession of controlled substance if they are in a car or residence where drugs are found, but many arrested individuals have no knowledge of the controlled substances and never exercise dominion and control over those drugs.

Even when the evidence of guilt is strong, a criminal defense lawyer can negotiate your case favorably, and possibly keep a conviction off your record entirely. There are several ways to do this. For a first offense, it may be possible to negotiate with the prosecutor to have your charge dismissed if you pay a fine and complete other simple requirements. Even if the prosecutor will not agree to a simple solution like this, NRS 453.3363 allows the judge, when sentencing first time offenders, to suspend the proceedings and dismiss the charge if the accused completes a drug rehab program.

I have helped many people charged with possession of controlled substances in Las Vegas and throughout Clark County, Nevada. If you or someone you care about has been charged with this offense, call me now and we can discuss the specifics of the case.

By Michael Pandullo

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