What Are Controlled Substances?


A “substance” is a drug classified as being “controlled” by federal or state governments when the use of the drug is only available through regulated means. The federal government has made a list of the various types of drugs that are “controlled” and organized them into schedules. There are five schedules of drugs, with the most dangerous substances in Schedule I, and the least in Schedule V. This classification has also been adopted by many states.

Possession of a controlled substance is not always crime. It can be legal to possess and use controlled substances in certain circumstances (i.e. with a doctor’s supervision or prescription). Possession and use of controlled substances become illegal when there is no legal justification for legitimate use.

What is Illegal Possession of a Controlled Substance?

The most prevalent drug charge is possession of a controlled substance. Illegal possession of a controlled substance occurs whenever a person possesses a drug without legal justification. These charges usually pertain to a carrying cocaine, marijuana, MDMA (ecstasy), methamphetamine, or other narcotics. However, some legal drugs, such as prescription medications, qualify as controlled substances. Possession of prescription medications without a valid prescription is also considered illegal possession of a controlled substance.

To be convicted of illegal possession of a controlled substance, a prosecutor must prove the following elements:

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


Being in possession of a controlled substance requires a person to knowingly and intentionally control the drug. The prosecuting attorney would only have to show that the perpetrator knew of the drugs presence, and intended to use or control drugs. The standard of proving the person knew of the drug and intended to control them is dependent upon the facts of each case. However, this burden can be met without evidence that the drugs were actually used by the accused. A defendant can also be convicted of possessing a controlled substance if the prosecutor can show the accused had at least partial control over the drug in the case of a shared home. Both defendants would have to have some control over the drug in question.

Possession (constructive/active)

Possession means that a person has personal and physical control over the substance. The courts consider possession as being either actual or constructive. Actual possession is when the illegal substance is found on the individual’s body, in their pockets or in their personal custody. Constructive possession is when the defendant doesn’t physically have the drugs on their person or in immediate possession (i.e. in a pocket). If the defendant has access to and control over the place where the drugs are located, a possession charge is still likely to follow. This commonly occurs when a defendant is pulled over for a traffic violation and drugs are found in the vehicle. In order to be charged with possession the substance does not have to be used just rather in the defendant’s control.

Personal use versus Distribution

In many circumstances, a person who could be charged with illegal possession of a controlled substance might instead end up being charged with possession with the intent to distribute. This is a more serious charge than simple possession and depends on the amount of the substance in the defendant’s possession, the type of drug and any evidence provided to prove intent to sell.

What are the penalties for illegal possession of controlled substances?

Illegal possession charges vary significantly depending on the facts of the case, the type of drug involved, the defendant’s criminal history, the presiding judge and the state in which the crime was committed.

Common penalties are fines, probation or jail time. Less common penalties are diversion or rehabilitation programs.

  • Less than $100 up to $100,000+.
  • As little as a few days/weeks up to 10+ years in prison.
  • Probation sentences are often given in conjunction with other penalties. An individual on probation must frequently check-in with a probation officer and comply with certain rules. Failure to comply results in jail time.
  • Diversion programs are counseling and behavior modification programs that requires the individual to comply with certain requirements. If the diversion program is completed, the charges are dropped. If the diversion program is not completed, charges will be pursued.
  • Some states allow courts to require a drug offender to attend rehabilitation instead of a jail sentence. This option is not as commonly used.

Possession of an illegal substance is a very serious crime. If you or someone you know has been charged with possession, call The Pariente Law Firm. Ensuring you know the best possible outcome of your case is important to us!

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