Drug Laws and Drug Crimes

From drug possession to drug trafficking, a look at laws regulating controlled substances.

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Drug laws and drug crimes have gotten lots of attention in the past decade. Laws in every state and at the federal level prohibit the possession, manufacture, and sale of certain controlled substances -- including drugs like marijuana, methamphetamine, ecstasy, cocaine, and heroin. (For more on a related topic, see Substance Abuse Treatment for Defendants Facing Drug and Other Charges.)

Putting aside political arguments over the so-called "war on drugs," it isn't hard to see why controlled substances are the focus of so much attention from legislators and law enforcement. It's estimated that drug and alcohol abuse costs society over $110 billion a year -- through accidental death and injuries, health care, dependency treatment, criminal behavior, and more. (To read about a shift in the federal government’s approach to drug crime under President Obama, see the blog post Morally Mandatory.)

Illegal Drugs vs. Legal Drugs

The legality of a drug often depends on how it is being used -- or what it is being used for. For example, amphetamines are used to treat attention deficit disorder, barbiturates help treat anxiety, and marijuana can help alleviate cancer-induced nausea. But unprescribed and unsupervised use of these substances (and many others) is thought to present a danger to individuals and to society in general. So, for decades, lawmakers have stepped in to regulate the use, abuse, manufacture, and sale of illegal drugs.

Federal, State, and Local Drug Laws

Though there is a longstanding federal strategy in place to combat the abuse and distribution of controlled substances, each state also has its own set of drug laws. One key difference between the two is that while the majority of federal drug convictions are obtained for trafficking, the majority of local and state arrests are made on charges of possession. Out of these state and local arrests, over half are for the possession of marijuana.

Another difference between federal and state drug laws is the severity of consequences after a conviction. Federal drug charges generally carry harsher punishments and longer sentences. State arrests for simple possession (i.e. possession without intent to distribute the drug) tend to be charged as misdemeanors and usually involve probation, a short term in a local jail, or a fine -- depending on the criminal history and age of the person being charged.

Drug Crimes: Charges and Terminology

In both the federal and state criminal justice systems, most of the cases stem from charges of possession, manufacturing, or trafficking of controlled substances. Below you'll find a brief overview of these offenses, as well as an explanation of some key terms related to drug crimes.

Controlled Substance

When a federal or state government classifies a certain substance as "controlled," it generally means that the use and distribution of the substance is governed by law. Controlled substances are often classified at different levels or "schedules" under federal and state statutes. For example, under the federal Controlled Substances Act, marijuana is listed as a "Schedule I controlled substance," cocaine is listed under Schedule II, anabolic steroids under Schedule III, and so on. The list includes a number of medications that are fairly common -- you'll find cough medicine containing low levels of codeine classified under Schedule V.

Distribution and Trafficking

As a drug charge, "distribution" usually means that a person is accused of selling, delivering, or providing controlled substances illegally. This charge is often used if someone tries to sell drugs to an undercover officer. Trafficking generally refers to the illegal sale and/or distribution of a controlled substance. Despite the name, trafficking has less to do with whether the drugs cross state lines, and more to do with the amount of drugs involved.

The consequences of a conviction for distribution and trafficking vary significantly depending on:

  • the type and amount of the controlled substances(s) involved
  • the location where the defendant was apprehended (for example, bringing an illegal substance into the country carries higher penalties, as does distributing drugs near a school or college), and
  • the defendant's criminal history.

Sentences for distribution and trafficking generally range from 3 years and a significant fine to life in prison -- with trafficking carrying higher sentences.

Manufacturing

Under federal and state drug laws, the government can charge a person for playing a part in the cultivation or manufacture of a controlled substance. Cultivation includes growing, possessing, or producing naturally occurring elements in order to make illegal controlled substances. These elements include cannabis seeds, marijuana plants, etc. A person can also be charged for producing or creating illegal controlled substances through chemical processes or in a laboratory. Substances created this way include LSD, cocaine, methamphetamine, etc.

Possession

The most common drug charge -- especially in arrests made under local drug laws -- involves possession of a controlled substance. Generally, for a possession conviction, the government (usually in the form of a district attorney) must prove that the accused person:

  • knowingly and intentionally possessed a controlled substance
  • without a valid prescription, and
  • in a quantity sufficient for personal use or sale.

A possession charge can be based on actual or "constructive" possession of a controlled substance. Constructive possession means that even if the defendant doesn't actually have the drugs on their person (in a pocket, for example), a possession charge is still possible if the defendant had access to and control over the place where the drugs were found (a locker, for example). This is important to note because, unlike DUI/DWI laws, the government does not have to actually prove that someone is using a controlled substance in order to charge them with possession. The theory of constructive possession is often used when illegal drugs are found in a car during a traffic stop.

It is also usually illegal to possess paraphernalia associated with drug use, such as syringes, cocaine pipes, scales, etc. In fact, being found in possession of these objects -- without any actual drugs -- may be enough for a person to be charged with a misdemeanor or felony.

Drug charges often start with possession, but then overlap with other offenses. For example, if the police find marijuana plants in X's storage room, X can be charged with possession of the marijuana and of cultivation equipment. If the amount of the plants is large enough, X can also face distribution, trafficking, or manufacturing charges.

Charges for simple possession are often less serious than charges for possession with an intent to distribute. The difference here does not necessarily turn on an actual intent to distribute, but on the amount of the substance found in the defendant's possession (i.e. smaller amounts are usually charged as misdemeanors, while larger amounts can be used to suggest felony possession with an intent to distribute).

Diversion. Many states allow diversion for first-time offenders charged with simple possession of illegal drugs. Diversion allows offenders to maintain a clean criminal record by pleading guilty and then completing a prescribed substance abuse program and not committing additional offenses. At the conclusion of the diversionary period (18 months is common) the guilty please is vacated, the case is dismissed, and the offender can legally claim never to have been arrested or convicted of a crime.

"Search and Seizure" Laws

The most common defense to a drug charge -- especially drug possession charges -- is a claim that a police officer overstepped search and seizure laws in detaining a person and obtaining evidence. If a defendant in a criminal case (usually through a criminal defense attorney) can prove that the police violated the defendant's Fourth Amendment rights in finding and seizing drug evidence, that evidence may not be admissible in a criminal case against the defendant. (To learn more about illegal search and seizure and your Fourth Amendment rights, see Nolo's article Understanding Search and Seizure Law.)

Drug Laws and Drug Charges: Learn More

If you or a loved one have been arrested and charged with a drug crime like possession of a controlled substance, there are steps you can take now to understand the situation and protect your legal rights. To learn how to navigate and survive the criminal justice system, read The Criminal Law Handbook, by Paul Bergman and Sara Berman (Nolo). Or if you're looking for legal help now, use Nolo's trusted Lawyer Directory to find a criminal defense attorney near you.

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