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How are Controlled Substances Classified?
To better understand drug crime defenses, we must first learn how drugs are classified and how crimes are penalized. The State of Kansas categorizes controlled substances into five categories, with Schedule I drugs considered the most addicting and Schedule V drugs the least addicting.
- Schedule I: drugs such as heroin, MDMA, mescaline, LSD, marijuana, and psilocybin
- Schedule II: drugs such as opium, morphine, oxycodone, cocaine, carfentanil, meth, and fentanyl
- Schedule III: drugs such as ketamine, GHB, pentobarbital, and anabolic steroids
- Schedule IV: drugs such as Ambien, Valium, Ativan, and Rohypnol
- Schedule V: drugs such as cough suppressants or other medicines that contain low doses of codeine or other narcotics
What is Possession of a Controlled Substance?
Possession of a controlled substance occurs if the person in possession has the ability and intention to control it. Police and prosecutors prove criminal possession of a substance in three ways:
- Actual possession: The accused individual has physical control of a substance, meaning that the person has it on their body and can control it.
- Constructive possession: The controlled substance is not physically on the person but found on or around their property. To prove constructive possession, there must be evidence that the accused individual knew of the drug’s presence and was able to control it. More than one person may be charged with constructive possession of the same drug.
- Shared possession: Occurs with the establishment that the accused individual had partial control of the drug if the drug is being shared.
Possession of a controlled substance is categorized and punished as follows:
- Possession of narcotics, opiates, amphetamine, or methamphetamine: Drug severity level 5 felony, punishable by up to 42 months of prison and a fine of up to $100,000
- Possession of Schedule I-V drugs, not including marijuana: Possession of most drugs begins as a class A nonperson misdemeanor. A second violation is penalized as a drug severity level 5 felony. The increased felony does not apply if the drug in possession is a Schedule V drug.
- Possession of Marijuana:
- First conviction: class B nonperson misdemeanor, punishable by up to six months of jail and a fine of up to $1,000
- Second conviction: class A nonperson misdemeanor, punishable by up to one year of jail time and a fine of up to $2,500
- All subsequent convictions: Drug severity level 5 felony, punishable by up to 42 months of prison and a fine of up to $100,000
- Possession of drug paraphernalia and toxic vapors: it is a class B nonperson misdemeanor to unlawfully:
- Use or possess with intent to use drug paraphernalia to ingest drugs.
- Possess, by, use, smell, or inhale toxic vapors intending to cause stupefaction or alter the senses of the nervous system.
- Drug possession in vehicle: Driver’s license suspension of up to one year if convicted of unlawful drug possession occurring in a vehicle.
Other consequences for drug possession charges may include:
- Fines and court costs
- Probation or parole
- Community service
- Loss of driver’s license
- Criminal record
- Difficulty finding employment or housing
How is Drug Possession With Intent to Distribute Penalized?
If a person is in possession of 450 grams or more of a controlled substance, then the law recognizes that as an amount to distribute or to sell. A first-time conviction of possession with intent to distribute may warrant imprisonment of up to 17 years or longer if the following allegations are true:
- In a school zone
- Crossing state lines
- Took drugs to the airport, on bus, train, or boat
- The mailing system is used
- Gang involvement
- Sex crimes
What are the Charges for Drug Manufacturing?
If a person is making or is believed to be making controlled substances, then they will likely face a manufacturing charge. During an investigation, law enforcement will be looking for ingredients or equipment used to manufacture. This charge can apply to:
- Growing Marijuana
- Mushrooms
- Meth labs
- LSD
- GHB and more
Manufacturing is charged as a level 1 or level 2 felony with up to 25 years of imprisonment.
Is Consent Required to Search Personal Property?
The Fourth Amendment of the United States Constitution protects individuals from unreasonable search and seizure practices. Law enforcement needs a warrant or probable cause to search a vehicle or other personal property.
Typically, an officer cannot search personal property without consent unless there is probable cause. If a person is pulled over for a routine traffic stop, an officer cannot perform a search unless verbal permission is provided or if they have reason to believe there are illegal substances in the vehicle. Possible probable cause reasons include the following:
- The officer sees the drugs or paraphernalia in plain view.
- The officer has a reasonable belief that the person is involved in criminal activity or possesses evidence related to a crime.
- There is a noticeable smell of drugs coming from the vehicle.
- A K-9 dog alerts to the presence of drugs in the vehicle.
Evidence that is disposed of during a stop or arrest may be obtained without consent or probable cause.
What Other Defenses may be Used for Drug-Related Crimes?
The specific defense that is best suited for a case should be discussed with an attorney. Every case is different. Possible defenses are based on the unique circumstances or events that transpired during the arrest and detainment and include:
- Lack of culpable mental state
- Lack of evidence
- Improper search, stop, or seizure
- Miranda warning violation
- Not my drugs
Do I Need an Attorney?
If you or a loved one have received drug-related charges and are wondering about possible defenses for your case, call Barnds Law LLC at 913-514-0909 or fill out a contact form to schedule your strategy session today.
