In 1970, President Nixon signed into law the Controlled Substances Act (CSA), a federal drug policy which aims to regulate the sale, manufacture, possession, trafficking, and distribution, of ‘controlled’ drugs. Since then the CSA has received a substantial amount of critique resulting in amendments to the law. However, the CSA continues to regulate the decision making of 1) how a drug is classified and 2) the punishments and penalties for committing a drug-related crime. The prosecuting body of the CSA is the Drug Enforcement Agency (DEA) which is why being caught in the middle of a drug-related crime can sometimes be punished with federal laws.
The Controlled Substance Act (CSA) of 1970 allows three federal bodies to make changes to what is considered a drug. The Drug Enforcement Agency (DEA), the Department of Health and Human Services, and the Food and Drug Administration (FDA), may change the laws that surround what is considered a drug and what schedule the drug fits in. In addition, these federal bodies may also remove a drug from a schedule, meaning that the drug is no longer considered to be controlled. Furthermore, the CSA also establishes the number of drugs that a certain individual may possess before any further assumption is made about their intent to distribute or engage in other unlawful acts which may hold more severe consequences.
Not everyone in control or possession of drugs is at fault. The CSA explains that in order for lawful possession, distribution, manufacturing, and selling of ‘controlled’ drugs, the agency or other entity must be registered with the DEA. The CSA attempts to control drugs that can be abused so to reduce the number of annual deaths and damages caused by consumption of ‘hard’ drugs. If you wish to learn more about the CSA you may visit the following page https://www.dea.gov/druginfo/csa.shtml
A drug charge can be a very serious offense that may result in prison time and high fines. If you are charged with possession or possession with attempts to distribute, the type of drug and the number of drugs found will impact the type of conviction you receive. If you are charged for a drug-related crime, you may want to talk to an attorney about your case before entering a courtroom. If you wish to consult your case with an attorney, you may contact the Law Offices of Jonathan Franklin at 310-273-9600.
In cases where individuals are not registered with the DEA to engage with drugs, the CSA laws and local state laws provide penalties and punishments that can be charged as felonies or misdemeanors. One of the biggest factors that come into play in a courtroom (aside from quantity), is the type of drug that is found at the scene of the drug-related crime. The CSA separates or ‘schedules’ different drugs into five categories. It's important to keep in mind that state laws may have a different scheduling of drugs, but the DEA regulations will supersede state law if the infraction involves a federal drug enforcement agent.
- Schedule 1: Schedule 1 drugs are drugs that are classified as having no medical use that can easily be abused.
- Schedule 1 drugs include tetrahydrocannabinol (marijuana), heroin, methylenedioxymethamphetamine otherwise known as ecstasy, lysergic acid diethylamide (LSD), methaqualone otherwise known as ‘714’,‘lemmons’, or Quaalude, and peyote.
- Schedule 2: Schedule 2 drugs are those that can be easily abused that can cause “severe psychological or physical dependence”.
- Schedule 2 drugs include cocaine, fentanyl, Adderall, Ritalin, Vicodin, methamphetamine, methadone, Demerol, Dilaudid, and oxycodone otherwise known as OxyContin
- Schedule 3: Schedule 3 drugs are drugs that pose a lower risk of abuse which means that there is a lower level of physical and psychological dependence.
- Schedule 3 drugs include Tylenol, ketamine, steroids, and testosterone
- Schedule 4: Schedule 4 drugs are drugs that may still be abused but that are less likely to cause dependency. These drugs are abused at lower rates than the drugs mentioned above.
- Schedule 4 drugs include tramadol, Ambien, Ativan, Darvon, Darvocet, soma, Talwin, valium, and the more common Xanax.
- Schedule 5: Schedule 5 drugs pose a low risk of abuse and dependence. These drugs are usually meant to treat some form of illness and can be found over the counter.
- Schedule 5 drugs include cough syrup such as Robitussin otherwise known as ‘lean’ or ‘purple drank’, motofen, Lomotil, and parepectolin
To see the full list of drugs in each schedule, please visit the U.S Department of Justice, Drug Enforcement Administration - Diversion Control Division page at https://www.deadiversion.usdoj.gov/21cfr/21usc/812.htm
As mentioned earlier, the possession, distribution, manufacturing, and the selling of drugs is a crime that can be punished by state and federal laws. Both federal and state laws take into account many factors that help determine whether the crime was a felony or a misdemeanor. On top of the quantity that you are caught with, the actions below will also hold different consequences. For example, simple possession of drugs may be charged as a misdemeanor, however, manufacturing or dealing may be treated as a felony. Drug cases differ in the number of relative factors that come into play which is why if you are entering a courtroom on a drug-related charge, it is best to contact a local state attorney that is knowledgeable of both state and federal drug laws. In the section that follows, we will highlight the ways a drug crime charge can be contested and dropped in a courtroom.
- Simple possession: Under federal law, simple possession of a small amount of an illegal drug for personal use is treated as a misdemeanor. The misdemeanor can include a sentence of up to a year in local jail and/or a fine of $1000. However, if the individual has an existing drug-related crime on his or her criminal record, the individual may be charged with a felony simple possession offense.
- Possession with intent to sell: In violation of California Health and Safety Code 11351, it is a felony to ‘possess’ certain controlled drugs with the intent to deal or sell. In a prosecution, the prosecutor will need to prove that there was intent to sell an illegal substance. In a courtroom, the prosecution can prove that the defendant was intending to sell if they prove that the individual had:
- Large quantities of drugs
- A substantial amount of money
- Packaged drugs
- Measuring items such as scales
- Evidence that the defendant's house was visited by a large volume of individuals entering and exiting a place within a short amount of time
- Possession of paraphernalia: Possession of paraphernalia can include the possession of bongs, rolling paper, syringes, and other utensil used to smoke or consume different types of drugs. Under federal law, it is illegal to possess paraphernalia or equipment that may be used to conceal or manufacture drugs.
- Manufacturing Drugs: Manufacturing drugs such as growing marijuana or producing meth or participating in any step of the selling of equipment to produce drugs is illegal under federal and state laws. In the state of California, it is a violation of Health and Safety Code 11379.6 to illegally manufactured drugs or other controlled substances. More so, it is illegal to engage in any step of the manufacturing procedure including selling equipment to produce drugs like meth or selling seeds to a grower.
- Violating Health and Safety Code 11379.6 is a crime that can be treated as a felony and punishable with up to 7 years in jail and a fine of up to $50,000.
- In addition, it is also illegal to offer to manufacture drugs, this crime can be punished with up to five years in prison.
- Furthermore, if children are present or reside in the place where the drugs are being manufactured, the defendant could face an additional sentence term that can range up to five years.
- Trafficking or Distribution of Drugs: Trafficking drugs is another crime that is treated as a felony. It is a felony if you 1) participate in the sale of large quantities of illegal substances, 2) transport large quantities of drugs from point a to point b, 3) smuggling drugs across the state or international borders. Trafficking penalties depend on the number of drugs, the type of drug, and whether minors were involved in the trafficking operations. The federal law explains that trafficking hard drugs such as cocaine can be charged with a prison sentence of up to 40 years and a fine of up to 5 million dollars if the individual is caught with more than 500 grams of cocaine. In addition, if you are caught with up to a gram of LSD or 100 grams of heroin, you may also face up to 40 years in prison and similar fines as with cocaine. Furthermore, second offenses can usually include longer prison sentences and greater fines. In some cases, repeated offenses can be charged with a lifetime in prison sentence.
- Trafficking marijuana: Though some states have allowed the recreational use of marijuana, the federal DEA classifies marijuana as a schedule 1 drug. If you are caught trafficking 50 kilograms or less, you may face a 5-year prison sentence and fines that can range up to a quarter of a million dollars. A repeated offense will hold double to penalties for a first-time offense.
- Selling or Dealing Drugs: The Drug Enforcement Administration (DEA) provides that drug dealing can be treated with lesser punishments than those outlined in trafficking drugs. Trafficking drugs is an operation that usually involves multiple individuals and large quantities of drugs. A drug dealer will usually have smaller amounts of drugs which mean that they may be charged with lesser penalties. However, the DEA also provides that if an individual is caught selling less than 50 grams of marijuana it can result in a prison sentence of up to five years and a fine of up to a quarter of a million dollars.
The penalties of the above-mentioned crimes are all subject to a varying degree of factors. In a courtroom, the judge will usually take into account the quantity, the place where the crime was committed, the scale of the operation, and whether or not underage individuals were involved in the distribution and selling of the drug. In most cases, the quantity will be the biggest deciding factor that contributes to a final verdict. In other words, the more drugs you are found with, the bigger the consequences and the greater the incentive for investigation.
Defenses for Drug Charges
There are times, more common than not, in a courtroom when an individual is falsely accused or accused of faulty presumptions. Fortunately, an experienced attorney is capable of challenging a drug charge by using common drug possession defenses. An experienced attorney will be capable of challenging the police report, the procedure of the search and seizure, testimonies, and other evidence of the case.
- A criminal attorney may be able to help in a drug charge by contesting or proving the following:
- The drugs were not yours: sometimes you can prove that the drugs are not yours or that they belong to someone else. For example, you may have a roommate that conducts a drug dealing operation under the table. You may have been completely unaware of the situation which means you have good reason to contest.
- The police conducted an unlawful search of your home or other private property: when a police enters a private property, they need a search warrant. If the police does not have the proper documentation to enter a private home, then any evidence they find, may not be used against you in a courtroom.
- The ‘drugs’ that were found were not actually drugs
- The individual was allowed to keep up to a certain amount of marijuana
- The drugs were planted
To be charged for possession of drugs, the information must prove that the violator knew about the drugs. In some cases, an attorney may be able to have the charges dismissed if they can successfully prove that the drugs did not belong to you or by attacking a police search procedure. To speak with an attorney about your drug charges, you may contact our criminal defense attorney at 310-273-9600.