Cocaine Possession: Penalties and Defenses

An explanation of the ramifications of being charged with cocaine possession or usage, the criminal penalties and punishment that may be imposed, and how a lawyer may be able to assist. Read on to learn more.

Cocaine is a powdered stimulant obtained from the leaves of the coca plant in South America. Possession of any amount of cocaine without a prescription is illegal under federal and state law. Under federal and several state regulations, possessing crack cocaine (a type of cocaine that has been processed even further than powder cocaine to produce a cheaper version) carries harsher penalties. See Drug Possession Laws for further information on state laws governing cocaine possession.

What exactly is cocaine?

Cocaine is on the federal government’s list of narcotic drugs with the potential for abuse and dependency but some medical use (Schedule II drugs). (Section 802 of the United States Code.) The statute (the Controlled Substances Act) is wide enough to include any coca leaf derivative or extract. Under reality, coca leaves are categorized as one of the “narcotic” cocaine narcotics in the legislation.

People eat raw, fresh coca leaves for a mild mood and energy boost in various sections of the Andes Mountains (and also in Peru, Ecuador, and other South American countries). Under US law, leaf eating would be considered illicit cocaine usage and possession.

Cocaine possession

While we are all familiar with the common sense of “possession” (having, owning, or controlling something), the phrase has a legal definition.

Possession that is “simple”

If a person knowingly has cocaine on his or her person (such as in a pocket) or under his or her personal, physical control, he or she is in possession of cocaine illegally (for example, in a purse). Knowingly means that the individual in possession of the cocaine was aware of its presence and was aware that it was prohibited. So, if someone takes a box labeled baking soda and has no reason to believe it contains cocaine, that individual does not knowingly possess cocaine. This is the most basic and evident type of possession.

When it comes to illegal narcotic narcotics like cocaine, however, the concept of possession does not end there.

“Possession with a purpose”

A person can be charged with “constructive possession” of cocaine and other banned narcotics in the United States. When the term “constructive” is used in this context, it refers to something that is suggested, inferred, or construed by the law. As a result, a person is in constructive possession of cocaine if the law considers him or her to have legal control over the drug. This term is far broader than physical control and encompasses a lot of territory. In the most obvious scenario, if a customs inspector discovers cocaine in a person’s suitcase, that person could be prosecuted with constructive possession of narcotics. The finding of cocaine under bushes beside where an individual had parked his vehicle led to a charge of constructive possession against the vehicle owner in a far less clear setting. Individuals have been charged with constructive possession of cocaine in the following locations:

• a person’s home, vehicle, company, or other property that he or she owns or rents
• a hotel room where the person was a guest
• a social group run by a single person
• an individual’s personal storehouse, and
• a package addressed to a specific person

The prosecutor must show that the defendant had the power and intent to control the substance, as well as knowledge that the material was cocaine, in order to convict him or her of constructive possession of cocaine.

When an individual is intimately linked with another person who has cocaine, it is sometimes enough to demonstrate constructive possession by the first person. If a scheme to jointly possess the drug can be demonstrated, an individual could be charged with constructive possession for cocaine found in the pocketbook of a passenger in his or her car, or for cocaine found in the house of another person with whom the defendant was closely linked.

Common Counter-Attacks on Cocaine Possession

There are a number of defenses to simple and constructive cocaine possession. Listed below are a handful of them.

Insufficient knowledge

If the person accused of possessing a box of cocaine that she believes to be baking soda can establish that she honestly and reasonably believed the package did not contain cocaine, she will be acquitted. However, the circumstances surrounding the cocaine’s acquisition will be crucial to this investigation. If a woman gets a box of “baking soda” from a lover she knows is a drug dealer, her story will be less convincing than if she takes the box from a shelf at a friend’s house with the intention of baking bread.

Lack of power and a desire to exert control

The government must show that the defendant intended to control the cocaine even though it wasn’t in his physical possession to prove constructive possession. The offender may be acquitted if he can establish that he had no intent to control the substance.

Penalties for Cocaine Possession

A person convicted of a first offense of cocaine possession under federal law who has no prior federal or state convictions for possession of any narcotic may be sentenced to no more than one year in jail, a fine of no less than $1,000, or both. A person convicted of cocaine possession following a prior conviction of cocaine or any other drug in either federal or state court could face a sentence of 15 days to two years in prison, a fine of not less than $2,500, or both. Two or more prior convictions in federal or state court for possession of any narcotic may result in a term of at least 90 days in jail, a fine of at least $5,000, or both. The length of time spent in prison and the amount of the fine may be influenced by the amount of drugs seized. Possession with the intent to distribute (sell) cocaine carries more harsher penalties.

States may also impose penalties for cocaine possession. Start with Drug Laws and Drug Charges for further information on illicit drug possession, including state-specific articles.

As previously stated, the penalties for possessing crack cocaine may be more severe than those for powder cocaine.

Consult a Lawyer

Possession of cocaine is a criminal offense. If you are being investigated for or charged with a crime, you should seek legal advice as soon as possible. Only an expert criminal defense lawyer familiar with your state’s laws (or, if the case is in federal court, an experienced federal practitioner) can advise you on the strength of the case against you and the availability of any defenses. Only a local attorney who is familiar with the prosecutors and judges in your courthouse can provide you with a realistic evaluation of how the case will likely develop.