Published in Criminal Law by Chris Eskew on August 31, 2022.

drug possession

Do you have drug possession charges in Indiana? If so, you could be facing significant legal trouble. With the amount of possible prison time you could face and all of the other consequences of a drug possession conviction, you are probably wondering how you will fight this charge. A knowledgeable and skilled defense attorney can help you navigate a drug possession charge. The criminal defense attorneys with Eskew Law, are five-star AVVO-rated for a reason. They are trustworthy, reliable, and have extensive courtroom experience. You can count on us to work with you to minimize your drug charge’s impact on your life.

What Is Possession of a Dangerous Drug?

Indiana law refers to possession of a dangerous drug as possession of cocaine or narcotic drug. The law in Indiana also relates to possession of methamphetamine, possession of a controlled substance, and possession of marijuana. The charge you face depends on the substance and quantity of drugs the police say you possess.

The prosecution has the burden to prove two elements under Indiana law before you are guilty of possessing a dangerous drug. First, the State must prove that the substance you’re found with is a controlled substance. Second, the State has to prove that you possessed the substance. We will look at each element separately.

What Is a Controlled Substance?

A controlled substance is any drug or compound listed in the state’s controlled substance schedules. Indiana state law categorizes the substances among five schedules based on the substance’s medicinal properties and addictive potential. 

  • 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; and
  • Schedule V: Prescription cough syrup like Robitussin AC.    

The Indiana drug schedules include numerous chemical compounds, including synthetic narcotics.


Possession is either actual or constructive. When you have an item on you, like in your hand or pocket, you are in actual possession of it. For instance, you have actual possession of a pen when you hold it to sign your name. 

Constructive possession means you have knowledge of and control over an item that is not on your person. For example, you have constructive possession of your car keys when you leave them in the kitchen even though you are in another room. 

The State must prove that the substance is a controlled substance and that you possessed it to convict you.

State Penalties

Possession of cocaine or a narcotic drug found in Schedule I or II of the Indiana drug statute is a Level 6 felony. The severity of drug possession charges increases to a Level 5 felony if you possess 5 to 10 grams of the controlled substance. It can also be a Level 5 felony if you possessed less than five grams but aggravating factors were present.

The offense becomes a Level 4 felony if the weight of the drugs is 10 to 28 grams—or 5 to 10 grams with the presence of aggravating circumstances. The crime becomes a Level 3 felony if the weight of the drugs is at least 28 grams—or is between 10 to 28 grams with the presence of one or more aggravating circumstances.

The possible prison sentence for a Level 6 felony is six months to 2 ½ years with an advisory sentence of one year. The court could drop the charge to a Class A misdemeanor in the right circumstances.

The length of the possible prison sentences increases from there. A Level 5 felony calls for imprisonment from one to six years, with an advisory sentence of three years. A Level 4 felony is a possible 2 to 12-year sentence, with a six-year advisory sentence. Finally, a Level 3 felony calls for a prison term of 3 to 16  years, with a 9-year advisory sentence.

The penalties can increase if you have aggravating factors such as a prior offense, possession of a firearm during the offense or evidence of an intent to distribute or sell the drugs. Additionally, the possible sentences increase dramatically if the U.S. Attorney’s Office charges you with a federal crime.

How to Fight Federal Drug Charges? The Same Way You Fight Drug Possession Charges in Indiana.

We should start by saying that each case is analyzed on a case-by-case basis. In other words, no two cases are identical. The critical point here is that what might have worked in another person’s case might not work in your case. However, you can trust the hard-working and dedicated Indiana drug defense lawyers at Eskew Law to thoroughly analyze your case and find your best defense strategy.

Criminal defense lawyers know various ways to fight your charges or get them dismissed. Arguing that the police violated your rights to be free from an unlawful search is one of the most common defenses in drug cases. You have the right to argue the police violated your Constitutional rights to be free from unreasonable searches in both federal and state courts.

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 bring you to trial, and the judge 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 lacked 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 can 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.

Contact Us Today!

The consequences of a drug conviction are enormous. A legal team that will fight aggressively for you can make all the difference. Contact Eskew Law online or call today at 317-794-2431 for a free consultation. Our dedicated team of knowledgeable and talented lawyers will develop a defense strategy to fit your needs.

Author Photo
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.