Barbara Sadler: Is Possession Of A Controlled Substance A Felony In Utah?

Possession of a Controlled Substance is defined in Utah’s Controlled Substances Act, in Chapter 37 of Title 58 of the Utah Code. It is illegal for an individual to knowingly and intentionally possess or use a controlled substance that was not obtained with a lawful prescription. Possessing a controlled substance, or PCS in Utah, can result in very serious repercussions and harsh penalties, including prison sentences, fines, an inability to work in certain professional fields, a possibly permanent criminal record, and ineligibility for certain educational opportunities.

An alleged PCS offender has to have actual or constructive possession of a controlled substance in order to be charged with the offense. If the prosecutor is unable to prove the alleged offender had either actual or constructive possession of the controlled substance, the charges will likely be dismissed because possession is a required element a drug possession offense. Actual possession involves having actual, physical of the drug somewhere on your person, in clothing on your body or in a purse or wallet on your body.

Constructive possession is usually harder to prove than actual possession and usually involves the following three requirements:
• The alleged offender knew the illegal substance was in their vicinity;
• They knew it was an illegal substance; and
• The drug was close enough to actually possess.
The Utah Controlled Substances Act places all substances, drugs, prescription medications, and street drugs into schedules, ranging from Schedule I to Schedule V. Schedule I drugs are typically considered very addictive with no known medical use, and Schedule V drugs are the least addictive with commonly used medical purposes.
• Schedule I drugs have the highest likelihood for abuse and no used medical purpose in the United States. Examples of Schedule I substances can include marijuana, cocaine, LSD and heroin.
• Schedule II drugs have a high potential for abuse, but are used for some medical applications in the United States. An example of a schedule II substance is GHB.
• Schedule III drugs have less likelihood of abuse than Schedule I or II drugs, and are commonly used for medical purposes in the United States. A substance in this schedule is anabolic steroids.
• Schedule IV drugs have a lower likelihood for abuse than Schedule III drugs and have common medical applications in the United States. Substances in this schedule can include Xanax and Ambien.
• Schedule V drugs have the least potential for abuse and have common medical uses in the United States. Substances in this schedule can include medicines that have small amounts of codeine or opium.
Penalties in Utah for Drug Possession Offenses
Possession of a controlled substance is punishable as a class B misdemeanor, class A misdemeanor, third degree felony or second degree felony, depending on the controlled substance, the amount possessed, and whether the offender has previously been convicted. The degree of possession charge usually depends on the type of substance possessed, the amount of the drug possessed, whether the alleged offender has previous convictions, and whether the offender carried a weapon or firearm during commission of the offense. Additional factors can include whether the offense occurred in the vicinity of an elementary school, public park, house of worship, correctional facility, in the vicinity of someone under the age of 18, or if the alleged offender caused death or serious bodily injury during the commission of the offense. The following are the basic minimum punishment ranges for drug possession in Utah:

• A class B misdemeanor can result in imprisonment for up to six months and/or fines up to $1,000.
• A class A misdemeanor can lead to imprisonment up to one year and/or a fine not exceeding $2,500.
• A third degree felony can lead to a prison sentence for up to five years and/or a fine not more than $5,000.
• A second degree felony can result in imprisonment for up to 15 years and/or a fine up to $10,000.
Of course the maximums are much different than the “average” criminal penalty. If you’ve been caught with less than one ounce of marijuana and it’s your first offense, you are almost certainly not going to go to jail for 6 months, or probably at all. However, a criminal conviction is nothing to take lightly, as even a minor one has collateral consequences.
Collateral Consequences for a Controlled Substance Conviction in Utah
• Your Utah Driver’s License: A conviction for any of the crimes listed under the Utah Controlled Substance Act will result in the suspension of your Utah Driver’s License (or, if you have an out-of-state driver’s license, it will result in the suspension of your Utah Driving “Privilege”). This is certainly one of the most serious collateral consequences of a drug conviction in Utah, as many people need their license to get to work or school. It’s also something they don’t tell you about in court (usually) because it’s not technically part of the “criminal” penalties. It is very real though. There are some ways to try and avoid this license suspension, which is a good reason to contact a local defense attorney about your case.
• Your Criminal Record: Any criminal conviction goes on your record, of course, and that record can effect you in ways that you didn’t suspect. It can limit your career opportunities, your schooling, and your housing options, for instance. Utah does allow you to “expunge” or seal the record of your criminal convictions, but there’s a waiting period of several years. However, getting your case dismissed means that you are eligible to expunge all records of the case after only a 30-day wait.
• Possible Defenses to a Controlled Substance Charge: In a drug case, the admissibility in court of the drugs themselves is usually a key part of the case, so getting the evidence suppressed can result in a dismissal of the charges. Since cases often begin with a search or seizure, showing that the police violated the 4th Amendment protections against unreasonable search and seizure results in the dismissal of many drug cases. Further, since drug cases often revolve around the “confession” of the suspect, the 5th Amendment is frequently at play at well.
There’s also the issue of possession. When drugs are found in a car, for instance, often everyone in that car is charged with possession, but in Utah, the prosecutor must prove that the defendant both knew about and intended to exercise “dominion and control” over the drugs. Obviously, these are complicated legal issues for which it’s important to have a good defense attorney helping you out.
What to Do If You’ve Been Charged with Possession of a Controlled Substance in Utah

As explained above, even a minor criminal conviction for Possession of a Controlled Substance can have some very real collateral consequences, so getting the best result you possibly can in your criminal case is effort well-spent.

Utah Criminal Defense Attorney for your Drug Charges

There are all different levels of Controlled Substance charges, and every case is different, so it’s impossible to say exactly how much a defense attorney will cost in your case. For a serious felony charge, representation might cost many thousands of dollars. On the other hand, for a simple marijuana possession/paraphernalia case, my fees can be under $1000. Get in touch with me to discuss your case and get a quote, with no obligation or pressure. All states regulate the possession of controlled dangerous substances (CDS), though each differs in its exact definition of controlled dangerous substances and the penalties for illegal possession. Utah classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled dangerous substances, but also the compounds used to manufacture them.
Penalties for Possessing CDS
It is illegal in Utah to possess CDS without a valid medical prescription. Penalties vary according to the type and amount of CDS involved in the violation.
Schedule I or II CDS
It is a third degree felony to possess Schedule I or II CDS. Penalties include a fine of up to $5,000, up to ten years in prison, or both. Second and subsequent convictions are second degree felonies, incurring a fine of up to $10,000, at least one (and up to 20) years in prison, or both.
All other CDS
It is a class B misdemeanor to possess all other CDS. Penalties include a fine of up to $1,000, up to one year in jail, or both. Second convictions are class A misdemeanors, incurring a fine of up to $2,500, up to one year in jail, or both. Third and subsequent convictions are third degree felonies, incurring a fine of up to $2,500, up to 18 months in prison, or both.
Violations on Prison Property
Violations that took place on or within jail or prison property incur penalties one degree greater than those applicable to the underlying crime. For example, if the offense would ordinarily be a third degree felony, but was committed on jail property, fines and prison time for a second degree felony would instead apply.
Talk to an Attorney

CDS possession convictions can incur harsh fines and long periods of incarceration. A local lawyer who practices CDS defense will review the facts of your case, explain your options, and advise you of the possible consequences. A criminal charge for possession of a controlled substance in a Utah correctional facility carries significant potential penalties. If you are found carrying drugs into a jail or prison, the offense level can be enhanced by one degree above what the charge would normally be. But there are potential defenses available to this criminal charge
Elements and Defenses to Drug Possession in a Correctional Facility
Utah law provides that person convicted of illegal possession of a controlled substance “while inside the boundaries of a property occupied by any correctional facility” or in “any public jail or other place of confinement” are subject to a penalty one degree greater than what would otherwise apply. Many people who are charged with possession of a controlled substance in a correctional facility are people who were booked into jail, either on an outstanding warrant or for other recent charges, and just happened to have drugs in their possession when they were booked. In many of these cases, the person did not intend to smuggle drugs into the jail. Given the choice, the person would not be in jail at all. Such cases raise the issue of whether a person who does not intend to bring drugs into a jail or correctional facility should be subject to an enhanced penalty. When a person is arrested, he may be faced with the choice of giving up his Fifth Amendment privilege against self-incrimination by announcing to police that he has drugs in his possession, or risking an enhanced penalty by remaining silent and waiting till he goes through the jail booking process and police find the drugs at the jail. Such a choice essentially imposes a higher penalty on a person for exercising his or her Constitutional rights. The criminal court system should not permit this kind of forced waiver of Constitutional protections.

Drug Possession in a Utah Jail or Prison

Under Utah criminal law, a person found in possession of a controlled substance in a correctional facility, jail, “or other place of confinement” is subject to a penalty enhanced one level higher than for ordinary drug possession. For example, a person found in possession of cocaine would normally be charged with a third degree felony, punishable by up to 5 years in prison. If a person is arrested and taken to jail, and if cocaine is found in his possession at the jail, a prosecutor may file the charge as a second degree felony, punishable by up to 15 years in prison. A simple marijuana possession charge, normally a class B misdemeanor, can be enhanced to a class A level punishable by up to a year in jail.

Criminal Defense Lawyer Free Consulation

When you need to defend against drug possession or drug trafficking charges in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.