Published in Criminal Law by Chris Eskew on November 28, 2022.

Fentanyl is a very dangerous drug if misused and abused. The penalties for possessing a small quantity of fentanyl are steep. If you are arrested for possession of fentanyl in Indiana, Eskew Law, is here for you. Not everyone caught with fentanyl is a career criminal. Perhaps you have a valid prescription but had more than prescribed in your possession, or maybe you were unaware it was fentanyl and mistakenly believed it was another drug. Whatever the case, you need competent legal representation to avoid harsh fentanyl possession penalties. Our criminal defense team will use its knowledge, experience, and resources to help you fight these charges. 

What Is Fentanyl?

First things first, what exactly is fentanyl? Fentanyl is an opioid first approved for medical use decades ago. It is a common pain medication and is often combined with anesthesia. However, it has grown in popularity among recreational drug users and is commonly combined with other narcotics, such as heroin and cocaine. You may be familiar with the phrase “laced with fentanyl.” The term describes when other drugs also contain fentanyl. Often, heroin or cocaine buyers are unaware that the drugs they are buying also contain fentanyl. But the addition of fentanyl to these drugs can be hazardous and is a leading cause of overdoses.  

Fentanyl is fast acting and almost immediately takes effect. It is said to be approximately 100 times stronger than morphine. Because it is so potent and dangerous, its illegal use is enforced and prosecuted strictly. 

Fentanyl Related Substance

The Indiana Legislature goes one step further and makes fentanyl and any “fentanyl-related substance” illegal. According to the statute, a fentanyl-related substance is any substance not listed in Schedules I through V that is structurally related to fentanyl by one or more modifications. To learn more about the specific modifications that qualify as a fentanyl-related substance, contact Eskew Law.

Drug Enforcement Agency Classification

The Drug Enforcement Agency (DEA) classifies drugs into five different Schedules according to their potential for abuse and dependency. The scale goes from Schedule V to Schedule I, with Schedule V being the least likely for abuse and dependency. 

Fentanyl is a Schedule I drug because of its high potential for abuse and severe psychological and physical dependency risk. Schedule I drugs, if not used according to a valid prescription, are illegal to use or possess under state and federal law.

Possession of Fentanyl

Simply possessing fentanyl without a valid prescription or above the prescribed dosage is illegal. Many believe you must hold fentanyl in your hand or pocket to face a possession charge. However, that is not the case. Let’s take a quick look at the two types of possession. 

Actual vs. Constructive Possession

You may be charged with possession of fentanyl, whether in actual or constructive possession of the substance. Actual control means law enforcement found the fentanyl on your person (e.g., in your hands or pocket), and another person does not have equal access to those drugs. On the other hand, constructive possession occurs when a police officer finds drugs in your general vicinity but not on your person. This applies, for instance, if the drugs are found in your dresser drawer instead of on your person.

Penalties for the Possession of Fentanyl in Indiana

Generally, a person convicted of possessing any controlled substance will face penalties directly related to the type and quantity of drugs in their possession. The penalties for fentanyl possession could increase substantially if other aggravating factors are present. 

Aggravating Factors

Certain circumstances—referred to as aggravating factors—could substantially enhance the penalties you face. 

Aggravating circumstances include the following:

  • Having a prior conviction for selling a controlled substance (excluding marijuana);
  • Committing the offense while possessing a firearm;
  • Possessing the drug within 500 feet of a school zone or public park;
  • Possessing fentanyl in the presence of a child or on a school bus;
  • Possessing the drug within 100 feet of a substance abuse rehabilitation facility; or
  • Facilitating or financing the delivery of the drug to a minor.

If one or more of these factors are present, you may face steeper penalties for a conviction.

Indiana Possession of Fentanyl Penalties

Possession of fentanyl is generally considered a felony. Here is a quick snapshot of Indiana’s felony possession levels. Notably, they change according to the amount of drugs involved.

Level 3 Felony

Possession is a level 3 felony if the amount is 28 or more grams of the drug involved. A conviction is punishable by 3 to 16 years in prison. The advisory prison term is 9 years.

Level 4 Felony 

Possession is a level 4 felony if the amount of drugs is at least 10 grams but less than 28 grams. A level 4 can still increase to a level 3 felony if any enhancing factors are present. A level 4 felony conviction is punishable by 2 to 12 years in prison with an advisory sentence of 6 years.

Level 5 Felony

Possession is a level 5 felony if the amount is at least 5 grams but less than 10 grams. It can increase to a level 4 felony if aggravating circumstances exist. A conviction is punishable by 1 to 6 years in prison, and the advisory term is 3 years.

Level 6 Felony

Possession is a level 6 felony if the amount is less than 5 grams and will also increase to a level 5 felony if aggravating circumstances are involved. A conviction is punishable by 6 months to 2.5 years of incarceration.

A level 6 felony is often referred to as a “wobbler” offense because, in certain situations, it could be downgraded to a Class A misdemeanor. 

Collateral Consequences

Possession of fentanyl penalties goes beyond that of statutory imprisonment and fines. A conviction will undoubtedly wreak havoc on your professional, social, and familial relationships. A drug possession conviction will lead to a criminal record which can impact your ability to obtain or maintain employment, get a bank loan, or enroll in the military. It could also impact your social standing in your community, and most importantly, it can affect custody agreements and your ability to see your family. The consequences could be far-reaching. Your best defense is a skilled attorney!

Contact Our Attorneys Today

Over the last decade, our goal at Eskew Law, has been to help individuals preserve their freedom, livelihood, and reputation. At our firm, each client is given the individualized attention they deserve. Short of mass trafficking operations, fentanyl possession charges are some of the most severe drug offenses. If you or someone you love is charged with possessing fentanyl, it is crucial to obtain strong advocacy. Contact us via phone or throughout our 24-hour chat to schedule a no-cost, confidential consultation today.  

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Chris Eskew

Chris Eskew is the founding partner of Eskew Law. With over 15 years of experience, he focuses his practice on criminal defense, DUI defense, and family law. Chris is known for his dedication to his clients, his strong advocacy skills, and his commitment to achieving the best possible outcomes in legal matters. He is well-respected within the legal community and has earned a reputation for providing personalized and effective representation.