Drug Possession

When it comes to drug possession, the law is both clear and strict. A criminal defense attorney is a necessary part of your journey during drug possession cases or charges. This is because there are many different classifications, penalties, and defenses when it comes to drug possession.

Classifications

The Federal and State drug classifications are the same. Classifications are based on the addictive quality of the drug and they are separated into schedules.

Schedule I (IC 35-48-2-3, IC 35-48-2-4)

Schedule I drugs are the “most dangerous”. They have a high risk for abuse and dependency, and no accepted medical uses. These include LSD, heroin, ecstasy, marijuana, and mescaline.

Schedule II (IC 35-48-2-5, IC 35-48-2-6)

Schedule II drugs still have a high risk for abuse, but some accepted medical uses. This makes them less dangerous. These drugs include opium, cocaine, crack, PCP, methamphetamine, and amphetamines. However, Schedule II also includes drugs such as Vicodin, Adderall, Ritalin, and OxyContin.

Schedule III (IC 35-48-2-7, IC 35-48-2-8)

Schedule III drugs have a moderate risk of abuse, and include steroids, testosterone, codeine, and ketamine.

Schedule IV (IC 35-48-2-9, IC 35-48-2-10)

Schedule IV drugs have a very slight risk of abuse, and very acceptable medical uses. These drugs include Xanax, Tramadol, Clonazepam, tranquilizers, and Valium.

Schedule V (IC 35-48-2-11, IC 35-48-2-12)

Schedule V drugs are the most low risk category. The most well-known drug on this list is Robitussin AC.

If you or someone you know has been charged with possession of one of the above listed drugs, call criminal defense attorney Alex Mendoza.

Penalties in Indiana

Drug possession penalties in Indiana are based on which drug and what amount of the drug you had in your possession. Some penalties are harsher than others.

Possession of Cocaine or another Schedule I or Schedule II Narcotic, Excluding Marijuana (IC 35-48-4-6)

Less than five grams (5g) – Level 6 Felony
Five to ten grams (5-10g)—Level 5 Felony
Ten to twenty-eight grams (10-28g)—Level 4 Felony
More than 28 grams (28g)—Level 3 Felony

However, the existence of an enhancing condition can change the penalty. For example, a person who was arrested for the possession of 12g of cocaine but had an enhancing circumstance would be charged for a Level 3 Felony instead of a Level 4 Felony. Read about enhancing conditions below.

If you have been charged with possession of cocaine, call Alex Mendoza, criminal defense attorney, for a consultation.

Possession of Methamphetamine (IC 35-48-4-6.1)

Less than five grams (5g)—Level 6 Felony
Five to ten grams (5-10g)—Level 5 Felony
Ten to twenty-eight grams (10-28g)—Level 4 Felony
More than twenty-eight grams (28g)—Level 3 Felony

However, the existence of an enhancing condition can again change the penalty. For example, a person who was arrested for the possession of 3g of methamphetamine but had an enhancing circumstance would be charged for a Level 5 Felony instead of a Level 6 Felony. Read more about enhancing conditions below.

If you or someone you know has been charged with possession of methamphetamine, call criminal defense attorney Alex Mendoza for a consultation.

Possession of a Controlled Substance (IC 35-48-4-7)

This category does not include Marijuana or any marijuana product (such as hashish, hash oil, or salvia).

Possession of any controlled substance in Schedule I, II, III, or IV without a prescription is a Class A Misdemeanor.

Illegal possession of a Schedule V drug is a Class A Misdemeanor. This means that false reports to doctors to obtain a prescription, a fake prescription, or any other means of obtaining a Schedule V substance without a valid prescription is a Class A Misdemeanor. However, the possession of more than four ounces of a Schedule V drug in a 48 hour period is also a Class A Misdemeanor, even with a prescription.

If enhancing circumstances apply, possession of a controlled substance will be enhanced from a Class A Misdemeanor to a Level 6 Felony.

If you are being charged with possession of a controlled substance, call criminal defense attorney Alex Mendoza to set up a consultation.

Enhancing Circumstances (IC 35-48-1-16.5)

Enhancing circumstances for drug possession include the following:

  • a prior drug-related offense that is not related to marijuana (including conspiracies or attempts)
  • the offense was committed while in the possession of a firearm
  • the offense was committed on a school bus
  • the offense was committed within 500 feet of school property or public park where a reasonable person would expect persons under the age of 18 to be (even if no minors are actually present during the offense)
  • the offense involved drugs being delivered to a person under the age of 18 by an adult at least three years older than the minor
  • an offense in which a person either manufactured or financed the manufacture of a drug
  • an offense committed in the physical presence of a child under the age of 18, while the person knew that the child was present and could potentially see or hear the offense

Any of the above stated enhancing circumstances will add to the seriousness of the penalty. For example, if you committed a Level 5 felony, but one of these enhancing circumstances applies to you, you will be charged with a Level 4 felony. If you committed a Class A misdemeanor, and one of these circumstances applies, you will be charged with a Level 6 Felony.

If you are being charged with a higher felony due to an enhancing circumstance, call Alex Mendoza, criminal defense attorney, and find out what he can do for you.

What about Marijuana?

Though the DEA classified Marijuana as a Schedule I substance, it operates under a different set of penalties in Indiana than any other drug. Possession of marijuana in Indiana is a Class B misdemeanor. However, possession includes growing marijuana plants as well as failing to destroy marijuana plants growing on your property.

Possession of marijuana as a Class B misdemeanor can be bumped up to a Class A misdemeanor if enhancing circumstances apply. Enhancing circumstances include a prior drug offense, in this case. Possession of marijuana as a Class B misdemeanor can even be bumped up to a Level 6 Felony if certain enhancing circumstances apply. For this, the individual must have a prior drug offense and possess more than 30g of marijuana or 5g of hashish, hash oil, or salvia (IC 35-48-4-11).

If you are being charged with possession of marijuana, it is still a serious charge. Don’t delay. Call criminal defense attorney Alex Mendoza today.

Actual vs. Constructive Possession

Convictions for drug possession can be based on either actual or constructive possession. Constructive possession occurs when law enforcement proves that the suspect had actual knowledge of the presence and illegal character of the drug, as well as both the intent and the ability to maintain control and dominion over the drug (Washington v. State, 902 N.E.2d 280 (Ind. Ct. App. 2009)). The suspect must have knowingly or intentionally possessed the drug, however (Beeler v. State, 807 N.E.2d 789 (Ind. Ct. App. 2004)). Proving the suspect has both intent and ability to maintain control and dominion over the drug can mean proving that the suspect has possessory interest in the premises or that the drug was in plain view or close proximity to other items that belong to the suspect (Gee v. State, 810 N.E.2d 338 (Ind. 2004)). This is especially true for passengers in a vehicle. If the passenger can see the contraband and is in the best position to access it, they can be charged with constructive possession (Adams v. State, 946 N.E.2d 630 (Ind. Ct. App. 2011)).

Just acquiring a drug test that is positive for cocaine is not enough evidence to convict someone for possession of cocaine; there must be physical evidence of the drug first (State v. Vorm, 570 N.E.2d 109 (Ind. Ct. App. 4th Dist. 1991)).

Are you being charged with drug possession based on constructive possession? Call an aggressive criminal defense attorney, Alex Mendoza, to fight for your rights!

Possession of Instruments

According to I.C. 35-48-4-8.3, there is a penalty for possessing any “instrument, device, or object” intended to put a drug into the body, test the strength of a drug, or enhance the effects of a drug. The Indiana statute specifically states that rolling papers are excluded. Things under this category include needles, straws, and other paraphernalia. This penalty is a Class C misdemeanor.

Are you being charged with possession of paraphernalia? Call Alex Mendoza, criminal defense attorney, for a consultation.

Defenses

One of best defenses to a drug possession case comes when the evidence gets thrown out. Oftentimes, this is due to the “fruit from the poisonous tree doctrine”. This doctrine just states that things found during an illegal search cannot be used as evidence. The Fourth Amendment of the Constitution protects U.S. citizens from searches and seizures without a warrant. A warrantless search is legal, however, as long as there is probable cause, exigent circumstances, or some other exception to the warrant rule. Proving that there was no valid exception can lead the court to determine that your Fourth Amendment right was violated and thus throw out the evidence. Below are some exceptions to the warrant requirement that may be applicable to any drug possession case:

Probable Cause

 

Probable cause is when there is enough factual information to allow a reasonable person to believe that a search would uncover evidence of a crime (Walker v. State, 255 Ind. 65, 262 N.E.2d 641).

Consensual Searches

 

In some circumstances, an officer may ask permission to search a home, vehicle, or person and the individual may give their consent. This consensual search is only valid if the individual is not under duress, fear, fraud, intimidation, or merely submitting to the supremacy of the law (Kubsch v. State, 784 N.E.2d 905 (Ind. 2003); Nowling v. State, 955 N.E.2d 854 (Ind. Ct. App. 2011); State v. Seidl, 939 N.E.2d 679 (Ind. Ct. App. 2010); Temperly v. State, 933 N.E.2d 558 (Ind. Ct. App. 2010)). The voluntariness of the individuals consent will be in question until it is proven that the consent was entirely voluntary. Voluntariness is based on whether or not the individual was read their Miranda rights, the education and intelligence of the individual, previous encounters with law enforcement, whether the individual was advised of their right not to consent, whether the officer implied that he could search without consent, whether the officer was acting legally, whether the individual was cooperative previous to the search request, and whether the officer was being deceptive in any way (U.S.C.A. Const.Amend. 4; West’s A.I.C. Const. Art. 1, § 11. Bulthuis v. State, 17 N.E.3d 378 (Ind. Ct. App. 2014).

Exigent Circumstances

 

Exigent circumstances occur when it is impractical for an officer to obtain a warrant. This basically means that getting a search warrant would take too much time and put some other aspect of the situation in jeopardy. For example, if an officer has a reasonable belief that evidence is about to be destroyed or removed, he has exigent circumstances to conduct a warrantless search. In the case of a car accident, a blood sample to test the blood alcohol content of an individual involved may be considered evidence. It is also considered an exigent circumstance in this situation, because waiting for a warrant would mean that the blood alcohol content will have declined and the evidence would be lost. However, in cases not involving an automobile accident, a blood sample is not an exigent circumstance (Justice v. State, 552 N.E.2d 844 (Ind. Ct. App. 1990)). Another exigent circumstance occurs when someone needs help. An officer has no obligation to acquire a warrant to enter a premises where someone needs medical attention (Vitek v. State, 750 N.E.2d 346 (Ind. 2001)). The same goes for preventing further injury. If the officer is responding to a domestic violence call and he hears yelling and crying, exigent circumstances would allow him to enter the home to prevent further injury to the victim. Similarly, if an officer were to arrive on the scene of a homicide, he would have the right to conduct a warrantless search of the area to check for other victims and to see if the killer was still present (LaMunion v. State, 740 N.E.2d 576 (Ind. Ct. App. 2000)).

The last two primary types of exigent circumstances include hot pursuit or movable vehicles (Greer v. State, 253 Ind. 609, 255 N.E.2d 919 (1970); Sapen v. State, 869 N.E.2d 1273 (Ind. Ct. App. 2007); State v. Straub, 749 N.E.2d 593 (Ind. Ct. App. 2001)), and circumstances in which the suspect is either fleeing or about to flee in order to avoid being arrested (Greer v. State, 253 Ind. 609, 255 N.E.2d 919 (1970); Sapen v. State, 869 N.E.2d 1273 (Ind. Ct. App. 2007); State v. Straub, 749 N.E.2d 593 (Ind. Ct. App. 2001)). In these situations, a warrant is unnecessary because of the likelihood of the suspect to flee. A hot pursuit is typically a car chase; if the car chase ends at the suspect’s home, the police have exigent circumstances to enter the home and detain the suspect primarily because the hot pursuit was probable cause in and of itself. Exigent circumstances in relation to automobiles are similar. If an officer has probable cause to believe that a vehicle holds evidence of a crime, he may search it without a warrant. This is because the vehicle is readily movable, meaning that the evidence could disappear quickly if the officer does not take action (Edwards v. State, 762 N.E.2d 128 (Ind. Ct. App. 2002)). In all of these situations, there must be some proof or evidence that the circumstances required quick action to the extent that a warrant was out of the question. The police officers statement of subjective belief of exigent circumstances is not enough (Joseph v. State, 975 N.E.2d 420 (Ind. Ct. App. 2012); Trotter v. State, 933 N.E.2d 572 (Ind. Ct. App. 2010)).

If you believe that you were wrongfully searched or arrested, call Alex Mendoza, criminal defense attorney, today.

Plain View Doctrine

 

When an officer is in a place that he is lawfully allowed to be and sees an object that is unlawful, he is legally able to seize the item (Haley v. State, 696 N.E.2d 98 (Ind. Ct. App. 1998)).
For example, if an officer is invited into a home for some other purpose and he happens to see some sort of contraband or evidence, he is allowed to seize it without a warrant (Rook v. State, 679 N.E.2d 997 (Ind. Ct. App. 1997); Shultz v. State, 742 N.E.2d 961 (Ind. Ct. App. 2001)).

Open View Doctrine

 

If reasonable circumstances lead an officer to see, without much effort, an item of contraband or evidence through, for example, a window, he is legally able to apprehend it. If a person leaves the object in such open view that it can be seen from a lawful vantage point, they are forfeiting their reasonable expectation of privacy (Shultz v. State, 742 N.E.2d 961 (Ind. Ct. App. 2001)). With no reasonable expectation of privacy, there can be no violation of the Fourth Amendment (as discussed above).

For example, if an officer is responding to a call from a neighbor about a drug operation and he sees marijuana plants being grown in the window, he is legally able to seize the plants as evidence because they are in open view.

Incident to Arrest

 

If an officer is making a lawful arrest, he is legally able to conduct a warrantless search of a person or an automobile in order to ensure his own safety and the safety of others. The scope of the search is limited to either items that could be a danger to the officer or evidence that can be concealed or destroyed. The officer can only search areas that are within the immediate control of the person being arrested (Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 47 A.L.R. Fed. 2d 657 (2009)). This exception is also relevant in cases of questioning (Jones v. State, 472 N.E.2d 1255 (Ind. 1985); Townsend v. State, 460 N.E.2d 139 (Ind. 1984); Williams v. State, 271 Ind. 656, 395 N.E.2d 239 (1979)). However, the officer must be able to justify this search and give facts as to why he believed the individual to be armed and dangerous ((N.W. v. State, 834 N.E.2d 159 (Ind. Ct. App. 2005)).

If you are being charged with drug possession based on an illegal search, call Alex Mendoza, criminal defense attorney, to set up a consultation today.

Inventory Search of an Impounded Vehicle

 

If for any reason a vehicle is being impounded, an officer is legally able to do an inventory search of the vehicle. This is considered a routine search, as its primary purpose is to prevent any items from being lost or stolen while the vehicle is impounded This is for the benefit of the owner of the vehicle as well as the police department ( South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000, 1005 (1976)). The officer is even legally allowed to open containers, envelopes, and locked boxes during an inventory as long as it is standard protocol in his department (McCoy v. State, 241 Ind. 104, 115, 170 N.E.2d 43, 48 (1960); Montague v. State, 266 Ind. 51, 55, 360 N.E.2d 181, 185 (1977); Colorado v. Bertine, 479 U.S. 367, 369–70, 107 S.Ct. 738, 740, 93 L.Ed.2d 739, 744 (1987); Abran v. State, 825 N.E.2d 384, 391 (Ind. Ct. App. 2005)). However, the officer’s intention must be to take inventory. If at any time the officer states or makes it known that his intention was to search for drug contraband or evidence of a crime, he is admitting that the search was not an inventory and was therefore unlawful.

Another valid defense for drug possession could be entrapment. Entrapment is when an officer or an agent of an officer persuades you to do something that you would not normally do. However, persuasion is different than affording you an opportunity, and affording an opportunity is not against the law (IC 35-41-3-9). If you believe you were the victim of entrapment, call criminal defense attorney Alex Mendoza to set up a consultation.

Crimes Related to Manufacturing Drugs

 

Indiana Statute (I.C. 35-48-4-4.1) states that dumping waste from manufacture of a controlled substance is a Level 6 Felony. This is the penalty whether or not the person dumping the waste manufactured it.

Possession of more than ten grams (10g) of ephedrine, pseudoephedrine, or phenylpropanolamine is a Level 6 Felony. It becomes a Level 5 Felony if done so while in possession of a firearm or within 500 feet of a school or public park.

Possession of anhydrous ammonia or ammonia solution with intent to manufacture methamphetamine is a Level 6 Felony. It becomes a Level 5 Felony if the person also possesses a firearm or is within 500 feet or a school or public park.

I.C. 35-48-4-14.5 lists 39 different chemical reagents or precursors. The possession of any two of them at the same time with the intent to manufacture a controlled substance is a Level 6 Felony. It becomes a Level 5 Felony if the person also possessed a firearm or was within 500 feet of a school or public park.

A person who sells or distributes any of the chemical reagents or precursors to someone else, knowing they have the intention of making a controlled substance, commits a Level 6 Felony. However, this is a Level 5 Felony if it is more than ten grams (10g) or ephedrine, pseudoephedrine, or phenylpropanolamine.

If you or someone you know has been accused of possession of two or more of these precursors, call criminal defense attorney Alex Mendoza for a consultation.

 

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