Will I Go to Jail for a Drug Possession Charge in My State?

Possession of illegal drugs or prescription drugs without a prescription is a crime. However, the penalties can vary greatly depending on the type of drugs involved and the amount of drugs.

Even a first offense can carry criminal penalties, including mandatory jail time, though many states offer first-time drug diversion programs to avoid a jail sentence.

Drug possession offenses can qualify as felonies, misdemeanors, or simple infractions. The following provides an overview of drug possession charges and the penalties associated with them. For legal advice about jail time for drug possession, talk to a local drug crime lawyer.

Federal and State Laws for Specific Drugs

The Controlled Substances Act is a federal law that classifies different drugs based on their medical benefits and health risks.

• Schedule I drugs. No valid medical use and carry a high potential for abuse. This includes heroin, MDMA, LSD, and peyote.
• Schedule II drugs. Have a high potential for abuse, but also have some medical value. This includes cocaine, methamphetamines, PCP, and opiates. A number of these prescription drugs are abused without a prescription and sold illegally. Schedule II drugs include fentanyl, oxycodone, and codeine.
• Schedule III controlled substances. Have moderate to low potential for abuse. Schedule III drugs include ketamine, anabolic steroids, and appetite suppressants.

Schedule IV and Schedule V drugs include other common prescription medications like Ambien, Xanax, and Valium.

State vs. Federal Drug Classifications: The Example of Marijuana

States have their own drug possession laws and sentencing guidelines. Possession of marijuana is a good example to show how different states can treat simple possession of cannabis. Almost half of the states (including Washington, D.C.) have legalized adult-use cannabis.

Several other states have decriminalized simple marijuana possession. A few states still make simple possession of marijuana a misdemeanor. States may impose a felony charge for having an amount over a certain threshold.

State laws vary greatly for illegal drug cases. Factors that affect the criminal charges and potential jail time include the type of drug, the amount of drugs, and whether there are any prior drug convictions. There are generally harsher penalties for a second offense, large quantities of drugs, and certain types of drugs.

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First Offense Drug Possession

The penalties for a first-time drug possession case generally depend on the amount of drugs involved. Even a first offense can result in jail time and misdemeanor or felony criminal charges.

Under a certain amount, the state may charge you with a misdemeanor or a simple infraction. Potential jail time for a misdemeanor is generally less than one year. Many first-time defendants can get probation instead of jail time, allowing them to return to employment.

State-by-State Penalties for First-Time Possession

The following table lists the maximum jail time for a first-time possession conviction.

The penalties generally indicate a first offense involving a small amount of the drug. The criminal court may not impose jail penalties. Many states offer probation, diversion programs, or deferred prosecution for low-level drug offenses.

Talk to a local criminal defense lawyer about the types of charges, mandatory minimum sentences, and possible drug court options in your state.

Conditional Discharge and Drug Court Programs

Many first-time offenders can avoid jail time if they qualify for drug court or diversion programs.

Drug courts and diversion programs provide an alternative to time in jail. With these programs, defendants can get substance abuse support and a second chance to avoid a criminal record.

When a defendant is eligible for a pretrial diversion program, the court will stay the criminal charges while they go through an education and counseling program. Some states refer to this as a conditional discharge program. If a person has no prior convictions for any drug crime, they may seek a conditional discharge for their first offense.

After successfully completing the program, the court can drop the charges, and they will not show up on a public background check. However, law enforcement will still keep a record of the arrest. If the person gets arrested for a drug charge in the future, a conditional discharge can count as a prior offense.

Multiple Drug Possession Offenses

If you have a previous drug offense, states generally impose more severe penalties for any subsequent conviction. You could face more jail time, including a possible mandatory minimum. Some states count any prior drug possession conviction as a prior offense, even if it happened in another state.

Drug Possession vs. Drug Distribution

With drug possession laws, there is also a critical distinction between simple possession and possession with intent to distribute. Drug distribution or drug trafficking involves cases where the prosecution believes that the drugs were not for their exclusive personal use.

The difference between possession and distribution often involves the quantity of drugs. The state can charge intent to distribute based on the amount of drugs alone. However, other factors could indicate possible intent to sell, including drug paraphernalia associated with distribution, like weighing scales, packaging material, and large amounts of cash.

Drug distribution cases are generally felony offenses. Potential penalties for a felony drug conviction could include a prison sentence of five years or more.

State vs. Federal Drug Possession Cases

Simple possession of a controlled substance is also a crime under federal law. A federal first offense for simple possession is generally a misdemeanor. But the maximum jail time under federal law is not more than one year. In some cases, federal courts will offer special probation and expungement for drug possession charges.

The federal government also takes the distribution of drugs far more seriously. Given the serious penalties when elevating simple possession into an intent-to-distribute charge, you need a strong defense. Contact an experienced drug and alcohol violation lawyer after an arrest for any type of drug crime.