The Law Offices of Martin Hart, a criminal defense firm in Las Vegas, has many years of experience working with clients facing possession of controlled substance charges. These charges could change your life forever since they result in huge fines, incarceration, and being treated as a habitual offender when you commit another crime in the future. Let’s have a look at how possession of controlled substance charges is treated in Nevada.
What is a Controlled Substance?
A controlled substance is basically a drug that is either totally unlawful to own or unlawful to have without a prescription. It could be a depressant, hallucinogen, anabolic steroid, or stimulant.
In layperson's language, it is a substance that is in any of the five schedules created by the Drug Enforcement Administration, Food and Drug Administration, and Congress. The underlying principle behind placing a substance in a specific schedule is founded on the abuse likelihood and whether the drug has a legitimate medical use.
In Nevada, substance scheduling is decided by the Nevada State Board of Pharmacy and the list is kept in Chapter 453 of the Nevada Administrative Code. Even though Nevada laws are adopted from the 21 U.S.C 844 act, the above regulatory bodies have the power to limit certain substances more than the federal government. For instance, cocaine and methamphetamine are classified as Schedule II substances by the federal government. On the other hand, Nevada laws treat cocaine and methamphetamine as Schedule I substances while prescribed cocaine and methamphetamine are classified as Schedule II substances.
Schedule I Drugs
These drugs are thought to have high abuse potential and don't have any recognized medical benefit. Common examples of these drugs are what are popularly referred to as the street or illicit drugs. They include GHB, MDMA, heroin, PCP, weed, and crack cocaine.
Schedule II Drugs
Schedule II drugs have similar abuse potential as the schedule I drugs but have recognized, although restricted, medical uses. They are very addictive and believed to result in physical or psychological dependence. They include morphine, opium, hydromorphone, oxycodone, and Ritalin.
Schedule III
Schedule III controlled drugs have less potential abuse compared to schedule one and two drugs. They are perceived to have moderate or low dependence on you physically or psychologically. These substances also have known medical use. Perfect examples are keratin, anabolic steroids, and codeine.
Schedule IV
These are substances with low potential of abuse and have accepted medical uses when prescribed. They include diazepam, alprazolam, and benzos.
Schedule V
Schedule V has the least chemical dependence potential. They are also used by medical practitioners during treatment. A cough suppressant is a good example.
Definition of Possession of a Controlled Substance
Under NRS 453.336 (1), it is unlawful for you to intentionally or knowingly possess controlled substances unless they were legally prescribed.
How Possession of Drugs is Prosecuted in Nevada
For you to be convicted of possessing controlled substances, the prosecution team must prove beyond any reasonable doubt that:
You possess the drug
One of the most common misconceptions about this law is that one can merely be sentenced for possession if the controlled substance is on you. However, the term possession in this context has a broad meaning and can go beyond the location that you have control over like your vehicle or home. Possession can be proved under three different forms:
Actual Possession
Actual possession means you have immediate and direct bodily control over drugs. Usually, it is when the substance is on you. It could in your pocket, briefcase or in your body cavity.
It could be overwhelming to prove that you did not possess a drug if you were caught by law enforcement officers with this type of possession of drugs.
It is worth noting that you can also be charged even if the substances were not on your physical person when the police conducted a search, but it's clear that you had the drugs beforehand.
Constructive Possession
Constructive possession means the narcotics were not discovered on you but in a place which you have control over. This control could be either direct or indirect (through somebody else).
Nevertheless, being near a person with controlled substances is not sufficient enough to create possession proof. For instance, marijuana found in your sister's purse cannot support any accusations that you owned the controlled substance.
Joint possession
This type of possession occurs when a defendant and another person have either constructive or actual possession. For instance, you are living together with a friend and when the police search your home, they find Methamphetamine. From the evidence, it is clear that the Methamphetamine belongs to your friend, but you knew where it was and allowed your friend to have it in the house. As a result, both you and your friend could be found guilty of violating Nevada's possession of drugs law.
Knowledge
This is the second element of the crime. You must know of the presence of the drugs as well as their classification as controlled substances.
You had enough quantity of the substance for use
Finally, you must have a sufficient quantity of the controlled substance that can be consumed. That means residue or traces of the drugs cannot support possession of drugs conviction.
Penalties for Violating NRS 453.336
Typically, the type of sentence the court imposes for possessing drugs in Nevada depends on whether you have a prior drug conviction and the classification of the controlled substance in question.
If you do not have a previous drug conviction, you could qualify for drug court. Established in 1992, the drug court is a rehabilitation program in Nevada that is used as an alternative to incarceration in drug-related cases. As long as you complete the one-year drug education, the program will keep you out of prison and also dismiss your case.
When the Controlled Substances are in Schedule I to IV Categories
Although Schedule I to IV controlled substances may look like unobjectionable party drugs, a first or second-time offense is considered a category E felony. These are the least grave category of felonies but are more severe than misdemeanors and gross misdemeanors. The offense is punishable by a one to four-year sentence. A first-time conviction can be probated.
A third or consequent conviction is considered a category D felony. It attracts a maximum fine of $20,000 and one to four years in state prison.
When the Controlled Substance is Schedule V
First-time offenders of possession of controlled substance schedule V risk facing a one (1) or four (4) year in prison. However, just like the previous offense, a first offense could be dismissed provided that you complete a Nevada drug court successfully.
A second-time or subsequent crime is considered a category D felony that carries a maximum fine of $5,000 or a one to a four-year sentence in state prison.
When the Controlled Substance has Gamma-Hydroxybutyrate or Flunitrazepam
GHB is the most common controlled substance in this category. The offense in question carries up to six years sentence in state prison. However, a first conviction could be dismissed as long as you successfully complete the rehabilitation program.
Control over Drug Paraphernalia like Syringes and Crack Pipes
Possession of drug paraphernalia in Nevada is completely different from possessing controlled substances as far as penalties are concerned. It is considered a misdemeanor and you could face up to a six-month sentence or a maximum fine of $1,000.
How to Reduce your Drug Possession Charges to a Nevada Misdemeanor
If you are unwilling or fail to qualify for Las Vegas Drug Court, you can still avoid being convicted with a felony. A qualified lawyer should be able to persuade the court to reduce your case to a misdemeanor. A standard sentence could include rehab, performing community service, suspended jail sentence, a court order that prevents you from being put in custody while your case is impending, or probation.
How to reduce a felony controlled substance charge to controlled substance possession
A plea bargain may help reduce a serious drug charge like drug sales to drug possession. This is a felony charge but with less life-altering penalties.
How to Fight Possession of Drugs Charges in Nevada
You didn't own the drugs
Police may arrest you for controlled substance possession when they have no evidence fo constructive nor actual possession of the substances.
Temporary possession of the drugs could also act as a defense to this crime only if you owned the drugs so that you could destroy them as a way of terminating another person's illegal possession.
However, voluntarily destroying a drug yet you're the one with control over it will not pardon you of the crime.
Lack of knowledge
You cannot be charged with possessing illegal substances if you did not know that the narcotics you owned were illegal. This defense can be used in instances where a defendant is arrested for possession but they appear completely ignorant about the element that the drug is illegal.
Your attorney must prove that you were not running from police and did not refuse to participate in a chemical test as proof that you didn't know the drugs you had were controlled substances.
The police conducted an illegal search
Under the 4th Amendment to the constitution, regulatory bodies should adhere to strict rules when implementing search warrants and searching people, homes, and vehicles. For instance, if the police search a suspect without credible cause, the evidence they get from the search can't be used against the suspect.
An experienced lawyer will file a Nevada motion to suppress evidence. The motion should address the court telling it that the police violated your rights when they searched and seized the controlled substance from you. If the court grants the motion and discards the evidence, the case is seriously weakened.
You can use Nevada's Good Samaritan Drug Overdose Defense
Under BB 450 law, a defendant can't be charged with controlled substance possession or use if the substances were found because they looked for help for their sake or someone else's overdose or took care of another person who had overdosed until help arrived.
Related Offenses
Possessing Drugs with an Intention to Sell
Under NRS 453.337 and NRS 453.338, it is unlawful to possess drugs with the intent of selling them. If you have no prior criminal history, the court could impose a probation sentence. Penalties and sentences imposed depend on the schedule of the controlled substance that you are caught with.
Drug Trafficking
Drug trafficking is knowingly selling, manufacturing or bringing controlled substances into Nevada or when a person is knowingly in possession of huge quantities of schedule I and II drugs. The penalties are as follows:
- If you are caught with a drug weighing 4 grams, you could face a fine of $50,000 and a maximum of six (6) years in state prison
- If the drug weighs between fourteen grams and 28 grams, you could serve up to 15 years in state prison or pay a maximum fine of $100,000
- If the drug amounts to more than 28 grams, the offense is a category A felony. It carries 25 years to life imprisonment and/or a fine of up to $500,000.
Selling Drugs
Under NRS 453.321, you could be charged with selling drugs when the prosecutors believe that you have already sold drugs.
Getting Reliable Legal Representation Near Me
Getting a reliable legal representative when you are facing charges for possession of controlled substances in Las Vegas is essential in protecting your freedom and to ensure you face reduced or no penalties. With many years of experience in handling drug-related cases in Las Vagas, Nevada, The Law Offices of Martin Hart is a premium law firm that is dedicated to serving our clients by protecting their rights. We understand that you could be tempted to make statements to investigators and police that could be self-incriminating. Thus, we are available 24/7 at 702-380-4278 to answer your call. Get in touch with us whenever you need our services. Call our Las Vegas criminal lawyer today and get the immediate legal support you need!