Published in Criminal Law by Chris Eskew on January 25, 2024.
If you have drug possession charges in Indiana, you could be facing significant legal consequences. With the threat of prison, probation supervision and all of the other penalties that may occur when someone is convicted of drug possession, you are probably worried about what may happen and how you may be able to fight these charges.
At Eskew Law, our knowledgeable and attorneys can help you fight against drug possession charges, and minimize the impact of these charges on your life.
In Indiana, there are varying consequences for possessing illegal substances and unprescribed controlled substances or legend drugs. The severity of the punishment often depends upon what type of drug was allegedly found in a person’s possession, how much of the drug was found on hand, and other factors. Some substances carry a misdemeanor charge, while others carry felony charges.
In this article, we explain the most common charges and penalties for drug possession in Indiana and the different strategies that can be used by your criminal defense attorney.
What is Possession?
Many times we hear “the drugs weren’t mine!” Indiana law does not require ownership, just possession.
35-48-4-6 defines Possession of Cocaine or a narcotic drug. 35-48-4-6.1 defines possession of methamphetamine. Indiana Code § 35-48-4-7 defines possession of a controlled substance. Indiana Code 35-48-4-11 defines possession of marijuana. Indiana Code 16-42-19-13 defines possession of a legend drug. any person who if proven to knowingly or intentionally possess a controlled substance without a valid prescription (excluding a marijuana prescription) can be convicted of possessing the named drug.
Indiana law is complex, and being charged with drug possession can be much more complicated to legally define than simply stating “A person has been found holding cocaine.” Possession can be either actual possession or constructive possession.
Actual possession is very straightforward – it means a person allegedly had direct and physical control of the drug. For example, if someone was found to have marijuana in their hand, anywhere on or in their body, or in their pocket, they could be charged with actual possession.
Constructive possession, on the other hand, means you have knowledge of the drug and the ability to maintain dominion or control over an item that is not on your person. To break that down further, it means that the accused individual has an intention to possess the drug. For example, if law enforcement searches a home or car and finds drugs, it may be proven that the person living in or even visiting the home or whoever is in the car intends to possess the drugs.
What is a Controlled Substance?
A controlled substance is any drug or compound listed in the state of Indiana’s controlled substance schedules. Indiana categorizes the substances among five schedules based on the drug’s medicinal properties and potential for addiction.
- Schedule I: Heroin, marijuana, peyote, LSD, and ecstasy
- Schedule II: Cocaine, fentanyl, crystal meth, Vicodin, and Oxycontin
- Schedule III: Ketamine, Tylenol with Codeine, anabolic steroids, and testosterone
- Schedule IV: Xanax, Valium, Ativan, and Ambien
- Schedule V: Prescription cough medications such as Robitussin AC, Triacin C, Tuxarin ER, FlowTuss, and Hycofenix, and others
In Indiana, drug schedules also include numerous chemical compounds, including synthetic narcotics.
State Penalties for Drug Possession
The drug classification system in Indiana is broad. Here are some of the most common charges and penalties relating to drug possession:
- Possession of Marijuana – Any amount
- Class B misdemeanorFines up to $1,000
- May be sentenced up to 180 days (6 months)
- Possession of Marijuana – Less than 30 grams with a prior drug conviction
- Class A misdemeanor
- Fines up to $5,000
- May be sentenced up to 1 year
- Possession of Marijuana – 30 grams or more with a prior conviction
- Level 6 felony
- Fines up to $10,000
- May be sentenced from 6 months to 2.5. years
- Possession of a Controlled Substance
- Class A misdemeanor
- Fines up to $1,000
- May be sentenced up to 1 year
- Possession of a Controlled Substance with Enhancing Circumstances
- Level 6 felony
- Fines up to $10,000
- May be sentenced from 6 months to 2.5 years
- Possession of Methamphetamine – Less than 5 grams
- Level 6 felony
- Fines up to $10,000
- May be sentenced from 6 months to 2.5 years
- Possession of Methamphetamine – 5 grams but less than 10 grams
- Level 5 felony
- Fines up to $10,000
- May be sentenced from 2 to 12 years
- Possession of Methamphetamine – 10 grams but less than 28 grams
- Level 4 felony
- Fines up to $10,000
- May be sentenced from 2 to 12 years
- Possession of Methamphetamine – More than 28 grams
- Level 3 felony
- Fines up to $10,000
- May be sentenced from 3 to 16 years
- Possession of Cocaine or Other Narcotics – Less than 5 grams
- Level 6 felony
- Fines up to $10,000
- May be sentenced from 6 months to 2.5 years
- Possession of Cocaine or Other Narcotics – 5 grams but less than 10
- Level 5 felony
- Fines up to $10,000
- May be sentenced from 1 to 6 years
- Possession of Cocaine or Other Narcotics – 10 grams but less than 28
- Level 4 felony
- Fines up to $10,000
- May be sentenced from 2 to 12 years
- Possession of Cocaine or Other Narcotics – More than 28 grams
- Level 3 felony
- Fines up to $10,000
- May be sentenced from 3 to 16 years
- Possession of Drug Paraphernalia
- Class C misdemeanor
- Fines up to $500
- May be sentenced up to 60 days
The penalties for drug possession in Indiana can increase if you have aggravating factors such as prior drug offenses, possession of a firearm during the offense, and evidence of intent to distribute or sell the drugs. Additionally, the possible sentences may increase significantly if the U.S. Attorney’s Office charges you with a federal crime.
Common Drug Possession Defense Strategies
Criminal defense lawyers know various ways to fight drug possession charges or get them dismissed. Arguing that the police violated your Fourth Amendment or Article 1 Section 11 of the Indiana Constitution rights to be free from an unlawful search is one common defense in drug cases. Below are commonly used defense strategies for drug possession.
Warrantless Stop
The judge must exclude evidence that police seized unlawfully. Also, the judge must exclude evidence seized as the “fruit of the poisonous tree.” What does this mean?
Let’s say the police stop your car because they claim you ran a red light. After they stop you, they pull you out of the vehicle and pat you down. They find a small bag of cocaine in your pocket. So even though the police never showed you a warrant, you now face a Level 6 felony charge.
The best way to beat this case is by arguing that the police stopped you unlawfully. If you could show that the light was green when you drove through the intersection instead of red, as the cops said, the judge would likely rule that the police violated your rights when they pulled you over. The judge would order the drugs suppressed because the drugs are the fruit of the poisonous tree—with the poisonous tree being the illegal stop. If the drugs get suppressed, the prosecutor likely has no evidence to present at trial, and the government will almost certainly dismiss your case.
Search Warrant Lacked Probable Cause
The police can get a search warrant if they demonstrate probable cause that evidence of a crime is present in the place they want to search. A drug investigator might use an informant to gather information or conduct undercover drug buys as a way to build a case. The police must present the evidence establishing probable cause in the search warrant application and affidavit. A judge can rule that the warrant lacks probable cause if the police do not provide enough evidence.
Trial Defenses
Even if you lose your pre-trial motions to suppress evidence, you still have the right to have a jury decide your fate. Arguing that the prosecution cannot prove you possessed the drugs may win the case for you.
As stated earlier, the prosecutor must prove beyond a reasonable doubt that you possessed the drugs—whether that possession is actual or constructive. You could win a not guilty verdict if you are merely present when the police searched the house or car and have no real connection to or knowledge of the contraband.
Another common defense tactic lies in the statutory defense of entrapment. Under Indiana law, you could beat a possession charge if you successfully argue that the police led you into committing the offense. A skilled defense attorney will know when it’s appropriate to use the entrapment defense.
Each case is unique, meaning that defense strategies need to be analyzed on a case-by-case basis. This means that no two cases are identical, and what may have worked in another person’s case may not work in your case.
Are you facing drug possession charges? Eskew Law can help.
The consequences of a drug conviction are enormous. Our legal team will develop a defense strategy to fit your needs and case goals. Call Eskew Law today at 317-974-0177 to connect with our team of criminal defense attorneys.
